Paul Masando v National Railways of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 13 JUNE, 2023
JUDGMENT NO. LC/H/270/23
CASE NO. LC/H/185/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 13 JUNE, 2023

AND 13 SEPTEMBER, 2023

In the matter between

JUDGMENT NO. LC/H/270/23 CASE NO. LC/H/185/23

PAUL MASANDO	Applicant

Versus

NATIONAL RAILWAYS OF ZIMBABWE	Respondent

Before The Honorable L. Hove, Judge:

For Applicant	: Matsika Legal Practitioners

For Respondent	: Mbidzo, Muchadehama & Makoni

HOVE J:

This is an application for condonation for noncompliance with the Labour Court Rules, 2017. The applicant seeks to file his notice of appeal out of time. He is out of time by 391 days.

Background

The applicant stated that he received the decision he is seeking to appeal against in December 2021.

In January 2022 he noted his appeal against his employer’s decision to find him guilty and to dismiss him.

The appeal was defective. He then filed an application to reinstate the appeal but this too was fatally defective. It was struck of the roll sometime in September 2022. On 27 December 2022, the applicant alleges that he followed up his case with his lawyers. It is not made clear what then transpired until in February 2023, when he said that his lawyers advised him to withdraw all defective appeals and or applications he had filed and then start afresh.

He decided to file this application for condonation to enable him to file his appeal outside the prescribed time frame.

Considerations

In deciding applications of this nature, the court must consider the following factors;

The length of the delay

The explanation for the delay

The prospects of success, should the application be granted, and

Possible prejudice to the other side See in this regard the cases of;

Forestry Commission v Moyo 1997 (1) ZLR 254,

Director of Civil Aviation v Hall 1990 (2) ZLR 354

The explanation for the delay

The applicant explained that the delay was due to his legal practitioners’ failure to act with the expected diligence and competence. He believed that his appeal had been properly placed before the Court only to discover that that was not the case. The failure to place the appeal competently before the Court by his lawyers should not be seen as his own deliberate disdain of the Rules of Court. He had entrusted his erstwhile representatives with his appeal and had expected that they would promptly, diligently and professionally discharge their mandate, unfortunately, this expectation was not realized as, not once but twice, fatally defective process had been placed before the Court with the result that in a period of more than a year no valid appeal was before the Court. The applicant also avers in his affidavit that the delay was due to a lack of funding on his part. He further submitted that the delay was not deliberate and a willful disobedience of the Rules.

The reasons for the delay

The applicant has stated that the major cause of the delay was the failure of his representative to act professionally and competently. The erstwhile representatives have not filed an affidavit in support of the applicant’s averments and explanations.

It is trite that where a delay is attributed to a legal practitioner/representative, they must file an affidavit explaining the delay. This was not done. The explanation is therefore unacceptable.

In any event, it is also trite that litigants cannot lightly escape the results of their chosen agents’ failure. The position in the law is clearly stated in the cases of S v McNab 1986 (2) ZLR 280 (5) and Saloogee & anor NNO v Minister of Community Development 1965 (2) SA 135. It is that;

“there is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise, might have a disastrous effect upon the observance of the Rules of this Court. Considering ad misericordian should not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened with an undue and increasing number of applications of condonation in which failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship no matter what the circumstances of the failure are”

The fact that applicant also alleges a lack of funds cannot assist him. In Du Plessis v Witts Health Consortium (Pvt) Ltd [ 2013] JOL 30060 (LC) at para 16, the Court said,

“ it is clear from the above and other judgements that a claim of lack of funds on its own cannot constitute reasonable explanation for the delay.”

The court can therefore not accept lack of funds as a reasonable explanation for the delay. Him and his representative were simply not diligent. This is also because of the unexplained delays in his explanations. For example, his failure to explain the delay from the striking off of his application for reinstatement and this current application.

The result, is that the court finds his explanation for the delay unacceptable.

Whether or not the delay was inordinate:

The delay as admitted by the applicant is 391 days. This is a period in excess of one year. This period is an inordinate one. The employer will have to continue litigation in relation to an employee who was dismissed more than one year ago but who keeps failing to note a valid appeal.

Possible prejudice to the other side

“It is a policy of law that there should be finality in litigation.”

The Supreme Court stated the above quote in Ndebele v Ncube 1992 (1) ZLR 288 (S).

Litigation cannot drag on with no end in sight. This is prejudicial to the other side who must, as an employer, organize its work affairs according to the number of its employees. A dismissed employee cannot by failing to validly take action in its own interest deny an employer finality to litigation. The employer had to expend funds in defending one invalid case after another. The financial prejudice cannot be overstated.

Prospects of success

In his founding affidavit the applicant refers the Court to several of his grounds of appeal. The first notice and grounds of appeal had no prospects of succeeding because of its defective prayer. See the case of Zimbabwe Newspapers (1980) Limited v Tembani Kufa SC 137/21 where the Court said that a fatally defective prayer cannot be amended. The applicant failed to pray that the decision appealed against be set aside.

Vis a vis the merits

The first ground is challenging the procedure adopted. It is trite that procedural issues are challenged by way of review and not appeal. There would therefore be no good prospects of success in relation to this ground.

In an appeal the Court is limited to the substantive correctness of the decision appealed against. In a review the Court does not concern itself with the substantive decision. The Court addresses issues of procedure as measured against the principles of natural justice and the processes and powers set out for the adjudicating authority in the enabling instrument.

Where the real grievance is against the method of the trial it is proper to bring the case on review. See:- Herbstein and Van Winsen:

The civil practice of the High Courts of South Africa 5th edition page 1271

In Khader vs Chairman town planning appeals Board 1998 (4) All SA 201 the Court stated that

“Judicial review is concerned not with the decision but with the decision-making process”

See also Chiripanyanga v NOCZIM Judgement No.LC/H/102/2011.

The second ground is challenging factual conclusions made after the hearing. It is trite that an Appellate Court will not lightly interfere with factual conclusions made by a lower Court unless it is alleged and shown that there was gross irrationality. The applicant does not go further to show or demonstrate gross irrationality in the decision and the factual conclusions made. He is content with not demonstrating the alleged irrationality and making reference to the grounds of appeal that do not explain why it is being alleged that there is gross unreasonableness.

In Nyahondo v Hokonya & ors 1997 (2) ZLR 475 (S).

The Court stated that the now trite position that;

“An Appellate Court will not interfere with the decision of a trial Court based purely on findings of facts unless it is satisfied that having regard to the evidence placed before the trial Court, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at that decision.”

See also S v Isolano 1985 (1) ZLR 62 and Attorney General v Howman 1988 (2) ZLR 402.

The applicant has not demonstrated in brief its prospects of success in relation to this ground of appeal.

There is therefore nothing to demonstrate the applicant’s prospects of success.

The last ground of appeal alleges predetermination which speaks to bias. Issues of bias and predetermination are issues for review and not for appeal. The applicant fails to explain his alleged good prospects of success on appeal when it raises grounds for review in an appeal.

The second set of grounds of appeal also have the same challenges.

The first ground seeks to challenge the procedure that was adopted. This is not acceptable in an appeal.

The second ground challenges conclusions of facts. Unless it can be demonstrated that the conclusions of facts drawn were grossly unreasonable, even in brief, there is nothing to persuade the Court that there are good prospects of success.

The third ground also raises reviewable grounds.

There has therefore not been demonstrated before me that the application enjoys good prospects of success.

The third set of grounds of appeal also raise procedural issues and seeks to challenge factual conclusions without outlining why it is being alleged that there was gross unreasonableness.

In the result, the application is without merit and must fall. The following order is made;

Order:

The application be and is hereby dismissed.

Each party will bear each its costs