Panganai Mugaiwa v Colcom Foods Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/487/2016
HARARE, 30 JUNE 2016 &
CASE NO LC/H/APP/790A/15
19 AUGUST 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/487/2016

HARARE, 30 JUNE 2016 &				 CASE NO LC/H/APP/790A/15

19 AUGUST 2016

In the matter between

PANGANAI MUGAIWA						          APPLICANT

And

COLCOM FOODS LIMITED					         RESPONDENT

Before the Honourable Murasi J

The Applicant in Person

For the Respondent	B Ngwenya (Legal Practitioner)

MURASI J:

This is an application for condonation for late noting of appeal. The facts of the matter are as follows. The applicant was employed by the respondent. The applicant, together with other employees were charged with misconduct it being alleged that they stole from the respondent and absented themselves from work. The applicant was initially acquitted on the theft charge but was convicted on the charge of absenteeism. The applicant pleaded guilty to the charge of absenteeism. An appeal to the appeals officer resulted in the applicant being found guilty on the theft charge and he was dismissed from employment. The applicant appealed against this decision in terms of the Code of Conduct. This appeal was not successful. The applicant together with the other employers, filed a joint appeal with this Court in September 2014. This appeal was subsequently withdrawn by the applicant’s colleagues in December 2014. Since there was no longer any appeal with this court, the one having been withdrawn, the applicant filed this application on 2 July 2015.

In his submissions, the applicant stated that he was not aware that the appeal had been withdrawn by his colleagues. He further stated that after the appeal had been filed, he proceeded to his rural home where he was trying to make ends meet as he was now out of employment. He submitted that he was not in a position to raise bus fare. He further submitted that after he had received evasive answers from his colleagues about the status of the appeal, he decided to find out for himself. That is when he discovered that the joint appeal had been withdrawn. He stated that he always had the desire to pursue the appeal but was incapacitated by the lack of funds. He prayed that the application be granted so that he may have his matter dealt on the merits. On the issue of prospects of success, he submitted that he had not been involved in the theft as correctly found by the Disciplinary Committee. He further stated that the initial penalty had been a written warning for absenteeism and that a closer analysis of the matter would result in an appeal court arriving at a different decision.

Mr Ngwenya for the respondent stated that he abided by the submissions filed of record. He further stated that the explanation proffered by the applicant was unreasonable. It was argued that the applicant had failed to explain what role he took after the appeal was withdrawn in December 2014. Mr Ngwenya submitted that the applicant had stated that he was in rural home mitigating his unemployment by engaging himself in some buying and selling and this should have given him financial resources to come and ascertain the status of the appeal. Mr Ngwenya further submitted that the withdrawn appeal was fatally defective and could not be amended as the citation did not include the applicant. This was because the appeal was cited as “Jackson Chiwawa & 3 others”. The “3 others” had not filed supporting affidavits and were therefore not known to the court. This meant that the applicant had no appeal filed with the court. Mr Ngwenya further argued that the applicant had no prospects of success on appeal. This was because he had pleaded guilty to the charge of absenteeism. As regards the charge of theft, it was submitted that the evidence that had been adduced clearly proved the case against the applicant on a balance of probabilities. It was averred that the fact that the applicant had not been prosecuted at the criminal courts did not mean that he was not guilty of the misconduct as the respondent was enjoined to prove the misconduct on a balance of probabilities and not beyond reasonable doubt.

Precedent has shown that in applications of this nature the court considers, inter alia, the following factors. These include the degree of non-compliance, the explanation tendered, the importance of the case, the prospects of success, the respondent’s interest in the matter and the avoidance of unnecessary delay in the finalisation of the matter. The court notes that the purported appeal filed by the applicant and his colleagues was withdrawn in December 2014. Nothing happened until 2 July 2015 when the applicant filed this application. There was therefore a delay of nearly seven (7) months. This was an inordinate delay indeed. The applicant tendered the explanation that he was in rural home and did not have enough money to travel so as to ascertain the position. Was this a reasonable explanation? SANDURA JA (as he then was) had this to say in Ganda & Ors v First Mutual Life Assurance Society 2005 (1) ZLR 37 at page 39 D:

“The issue which arises for determination is whether the above averments constitute a reasonable explanation for the appellants’ failure to note the appeal timeously. In addition, it is pertinent to note that it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation.”

The applicant has not tendered any explanation which is acceptable for the period between December 2014 and July 2015. It is clearly unbelievable that one would file an appeal with the court and then disappears completely. This means that he was not interested in prosecuting the appeal. As stated by the respondent’s counsel, the applicant did not display the diligence and vigilance of a interested litigant and the law should not therefore protect him. I agree with the observation and am of the view that the explanation tendered by the applicant is unreasonable and therefore not acceptable.

It was argued by the respondent’s counsel that the withdrawn appeal was fatally defective in the first place and therefore there was no appeal before the court. The appeal that was later withdrawn was filed under the name “Jackson Chiwawa & 3 Others”. This road has been travelled before. The issue of citation of parties has been decided in numerous cases. It has been stated that where there is a group of litigants with the same cause of action, the others should file affidavits or documents showing that they have given authority to first mentioned to appear on their behalf. In Mashave v Zupco Limited & Anor 1998 (1) ZLR 567 (H) which was confirmed on appeal cited under 2000 (1) ZLR 478 (SC), it was reiterated that there should be some indication that the other parties to the litigation support the first mentioned person by way of affidavit or some other such document. In casu, the applicant and the other two colleagues did not file their documents. This led to the fatality of the citation. In DM Agro Consult & Manufacturing (Pvt) Ltd v Editor of the Herald Newspaper & Anor 2007 (2) ZLR 71 (H) it was held as follows:

“They cannot be identified as such. This is not a misdirection which can be amended by alteration of the names on the summons, nor is it substitution. You cannot amend or substitute something which does not exist.”

In Ganda & Ors (supra) SANDURA JA quoted MULLER JA in P E Bosman Transport Works Committee & Ors v Piet Bosman Transport (Ltd 1980 (4) SA 794 (A) at 799 D-E. The same case has been cited by the respondent’s counsel. The Learned Judge of Appeal of South Africa had this to say:

“In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some period of delay and, indeed in respect of other periods of delay, no explanation at all, the application should in my opinion, not be granted whatever the prospects of success may be.”

The court has already stated that the explanation tendered is unreasonable and thus unacceptable. The court has also made the observation that the “purported” appeal filed in September 2014 was fatally defective in its citation of the parties. It is my view that it is not necessary to consider whether there are any prospects of success on appeal. The application ought to be dismissed.

The court makes the following order:

The application for condonation for late filing of appeal be and is hereby dismissed.

Each party to bear its own costs.

Chinawa Law Chambers, respondent’s legal practitioners