Peter Simau v Sunway Enterprises (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/126/25
HARARE, 13 MARCH 2025
CASE NO. LC/H/1210/24
PETER SIMAU
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/126/25 HARARE, 13 MARCH 2025		CASE NO. LC/H/1210/24

PETER SIMAU	APPLICANT

Versus

SUNWAY ENTERPRISES (PVT) LTD	RESPONDENT

Before the Honourable Kudya J;

For the Applicant	- In person

For the Respondent	- N.T. Mutisi and F. Rukete, Legal Practitioners

KUDYA J:

This is an application for condonation for late noting of an appeal against the decision of the DA who ruled that there was nothing for him to determine if regard is had to the fact that the employer had paid the employee all that was due to him and that the Unionist had collected such dues for onward transmission to the applicant.

This judgment is based on an order made by this court on 13 March 2025 dismissing the condonation application. Parties were advised at the time of handing down of the order that full reasons for the decision could be availed on request. In a letter dated 18 March 2025 the applicant requested for the reasons through the Registrar of the Labour Court. These are they: -

Facts of the matter are that applicant who was in the respondent’s employment as a forecourt cashier attendant lost his job following allegations of misappropriating the respondent’s funds.

He at one point went before the DA claiming that the employer owed him certain monies under the contract of employment. That matter was eventually withdrawn when the employer had filed criminal charges against the employee.

Subsequently, appellant admitted the pilfering of funds in a disciplinary hearing held on 17 May 2023. Following the 17 May 2023 disciplinary proceedings the employee was dismissed from his job. His terminal benefits were computed and paid out on 18 May 2023 to the Unionist who was representing him. These dues were calculated less the amount that appellant had pilfered.

Aggrieved by the pay out, the applicant approached the DA again in October 2023 where his claim was dismissed as already stated at the beginning of this judgment. He is unhappy about the failure of his claim at the DAs. He is therefore intent on appealing against the DA’s decision. He is however out of time to note the appeal. He has therefore made the condonation of his late noting of the appeal, which condonation is the subject of this judgment.

His excuse is mainly that, the Unionist who was representing him belatedly advised of the failure of his claim at the DAs. He also states that he has a merited case on appeal since his view is that the payment which the Unionist accepted did not adequately pay him what he believes he was correctly owed by the employer.

On the other hand, the employer is opposed to the grant of condonation relief. Its argument is that, the applicant’s excuse is not reasonable, that the delay is inordinate and that the applicant does not have good prospects on appeal.

The principles to be applied in condonation applications are settled. See Jansen v Acavalos 1993(1) ZLR216(S). Each of the tenets is discussed below: -

Extent of the delay

A reading of the applicant’s founding affidavit shows, that he only states that the DA decided his case on 8 May 2024 and he filed the instant application on 20 November 2024. He states simply that, the Unionist who was representing him did not advise him of the order of 8 March 2024 with the result that he could not file his appeal on time.

A simple calculus of the dates between the DA’s order and the filing of the instant application is that applicant was out of time by at least 6 months to file his appeal. He does not take the court into his confidence as to why it took him such a six month period. It is settled that an applicant seeking condonation need put the court into confidence when explaining his breach of the rules of court, See Red Star Wholesalers Pvt Ltd v Katsande and Others SC7/03. The applicant adopted a casual reference to the fact that he was late to note his appeal. It is settled that condonation is not for the mere asking.

The reasonableness of the explanation for the delay or noncompliance.

Applicant states that, his delay was caused by his Unionist who belatedly brought the DA’s decision to his attention. He does not favour the court with the confirmation of the fact that the Unionist was to blame. No affidavit is sworn to and filed by the Unionist to support his excuse. It is settled that where the blame is at the instance of the applicant’s representation the applicant is obliged to provide confirmation of that fact. See Lunat v Patel SC-142/21. It need be noted that, applicant concedes that, the money which the employer paid him was received by his Unionist. This suggests that his Unionist and him enjoyed a cordial relationship. Nothing therefore stood in the way of the Unionist to support his condonation cause. The explanation for the delay is therefore unreasonable in that respect.

The prospects of success should the application be granted.

Applicant says he has a merited case because, it is his view that he was underpaid by the employer. He chronicles his underpayments to his first claim which he eventually withdrew when the employer had taken him to the criminal court. In fact, a reading of his claim before the DA which claim gave birth to the order sought to be appealed shows clearly that, it is a re-claim of the claim which he abandoned before the disciplinary proceedings were conducted in his matter.

A reading of the copy of the disciplinary proceedings minutes shows that, the applicant admitted the misappropriation of the employer’s funds hence the guilty verdict. It is also clear that the employer deducted the stolen figure from what it gave applicant through his Unionist as the balance. It is therefore baffling for the court to appreciate what else the applicant expected to get from the employer. Judging from the theft admission it is clear that applicant was biting the hand that was feeding him by stealing from the employer. He has not relented and has continued to harangue it by a baseless claim before the DA and now before the Labour Court.

It is clear that, applicant does not have a case that can detain the appeal court in that regard. He took the money which the Unionist got on his behalf but still wants more from an employer who he stole from. There can surely be no prospects in such a case. It needs also be noted that, the employer also indicated that the intended appeal will suffice a still birth as it is not in compliance with the rules vis the form etc. The application can therefore not succeed under this head.

The possible prejudice to the other party.

The facts of the case at hand show clearly that the applicant is technically harassing the employer who he wronged by stealing from. Granting condonation in such a case would prejudice the employer unnecessarily in particular at the costs level.

The need for finality to litigation.

It is settled that there should be finality to litigation in matters See Ndebele v Ncube1992(1) ZLR288(S. In the case at hand, it is clear from the record that, when the employer concluded its disciplinary proceedings and paid off applicant it was convinced that, its relationship with him was over. It was dragged however to the DA once more where the DA agreed with it that applicant was just blowing hot and cold as he did not have a good cause before him. The same applies to the instant proceedings. A grant of condonation relief would clearly militate against finality to litigation. The application should therefore be dismissed.

The importance of the case

There is nothing important about rehashing a case whose facts speak clearly to the fact that there are no more live issues between the parties. The applicant was paid less what he stole so that should be the end of the matter.

The convenience of the court

It is inconvenient for the court to be saddled with issues which are non issues as demonstrated by how parous the appeal which the applicant intends to take up is.

The avoidance of unnecessary delays in the administration of justice.

The old adage say justice delayed is justice denied. See S v Mususa HC H58/23. In the case at hand, applicant filed his matter with the DA who promptly disposed of it as there was nothing to detain him. Equally this court need not be hampered in its administration of justice by granting condonation in a patently hopeless appeal. The application should therefore fail. In the ultimate, it is clear that the application for condonation for late noting of an appeal is without merit in its entirety. It should therefore fail.

IT IS ORDERED THAT:

Application for condonation for late noting of an appeal and extension of time within which to note the same being without merit in its entirety it be and hereby dismissed with costs on a Legal Practitioner scale.

Bera and Masamba Legal Practitioners   Respondent’s Legal Practitioners