Philip Chikeya v ZESA Holdings (Private) Limited

### Preamble
JUDGMENT NO. LC/H/278/14
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE ON 8th MAY, 2014
CASE NO. LC/H/445/07
AND 23RD MAY, 2014
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/278/14

HELD AT HARARE ON 8th MAY, 2014      	CASE NO. LC/H/445/07

AND 23RD MAY, 2014

In the matter between:-

PHILIP CHIKEYA							Applicant

And

ZESA HOLDINGS (PRIVATE) LIMITED			Respondent

Before the Honourable G. Mhuri, Judge

For Applicant:  Mr R. Matsikidze (Legal Practitioner)with

Ms R. Mutindindi (Legal Practitioner)

For Respondent: Mr M. Baera (Legal Practitioner)with

Mr. I. Chisango (Legal Officer)

MHURI J.:

This is an application for leave to appeal to the Supreme Court against an order by this court declining condonation for late noting of an application for leave to appeal to the Supreme Court.

On the 19th May, 2010 after hearing an appeal by Applicant this court reserved judgment which judgment was then delivered on the 3rd December, 2010.

In terms of Section 92F(2) of the Labour Act [Chapter 28:01] any party wishing to appeal to the Supreme Court against a Labour Court decision shall first seek leave from the Labour Court.

In terms of Rule 36 of this Court’s Rules Statutory Instrument 59 of 2006 an application seeking leave to appeal shall be made within 30 days from the date of that decision.

The date of the decision Applicant wished to appeal against is 3rd December, 2010.  It is not correct that the appeal was dismissed on the 19th May 2010 (the hearing date) as the handwritten notes clearly show.

Applicant therefore had 30 days from the 3rd December, 2010 to file an application for leave to appeal to the Supreme Court.  That is at least by the 17th January, 2011.  This he did not do.

It was only on the 24th November, 2011 through his current legal practitioner Matsikidze and Mucheche Legal Practitioners that he filed an application for condonation of late noting of leave to appeal.

It is to be noted that Matsikidze and Mucheche Legal Practitioners are the fifth firm of Legal Practitioners Applicant engaged in these proceedings.  The record shows that there was:-

Musamirapamwe and Company;

Chinyama and Company;

Wabatagore and Company;

Maganga and Partners; and now

Matsikidze and Mucheche Legal Practitioners.

In some of these proceedings Applicant pushed the blame onto the legal practitioner for his failure to attend the hearings.

In his founding affidavit, (paragraph 6(b)) Applicant stated as his basis for the application that there was a reasonable explanation for the delay and that the same was due to the fact that the delay was not willful.

He further stated that LATE NOTING OF FILING NOT DELIBERATE as the explanation for delay, (paragraph 13) that

“the appeal was dismissed on the 19th May, 2010 and judgment was only handed down more than six (6) months later and thus when I got the judgment the 30 working days which are required for one to apply for leave to appeal to the Supreme Court had already expired.”

Having considered the length of the delay almost 11 months, the “explanation” for the delay and the prospects of success on appeal the Court declined to grant the Applicant the indulgence he was seeking.  This was on the basis that the delay was too inordinate, there was no explanation for the delay and there were no prospects of success on appeal.

Aggrieved by this order, Applicant filed this application for leave to appeal to the Supreme Court.

The issue to be determined in this application is whether or not Applicant has prospects of success on appeal against this Court’s order refusing condonation.  Did this Court err in refusing condonation?

One has to look at the Court’s findings to come up with an answer.

As alluded to earlier, the judgment in the appeal hearing of the 19th May, 2010 was reserved and only handed down on the 3rd December, 2010.  The 3rd December, 2010 is the date of judgment from which the dies inducea of 30 days is counted.  Applicant only filed the application on the 24th November, 2011.  This was about 11 months later.  This in a reasonable person’s mind is a long delay.  Applicant was at the time legally represented by Mr. Mabundu of Maganga and Associates.  The record does not show that this law firm renounced agency or had renounced agency at the time the judgment was handed down.

There is no affidavit from Mr. Mabundu stating that he did not get the judgment timeously.  Through his current legal practitioner Applicant submitted that he got the judgment from Mr. Mabundu.  Applicant begs this court not to visit the sins of his legal practitioner on him.

It goes without saying therefore that Mr. Mabundu got the judgment on the date it was handed down.

Going by his own submission that the appeal was dismissed on the 19th May, 2010 and judgment was handed down on the 3rd of December, 2010.  Applicant was aware of the dismissal of the appeal by the 19th May, 2010.  He awaited the judgment which was then handed down on the 3rd December, 2010.  This period 13 May, 2010 to 3rd December, 2010 is the period Applicant explained for the delay in filing his appeal.  As for the period 3rd December, 2010 to 24th November, 2011 there was no explanation for the delay, as alluded to earlier, his erstwhile legal practitioner had the judgment by the 3rd of December, 2011.

To that end, I am not persuaded that another Court will find otherwise.  There are absolutely no prospects of success on the appeal against the refusal to grant condonation.

Applicant also submitted that he now has a right of access to the Courts specifically provided for by Section 89(3) of the Constitution and he should not be hindered in approaching the Supreme Court by declining him leave to appeal.

It is also the same Constitution that gives power to a Court to make rules that govern or regulate its proceedings.  (Section 173 (3) and also Section 85(3)).

These Rules are there to be followed and a litigant cannot be allowed to flout them and later be heard to say I have a Constitutional right of access to the Court do not hinder me.

I find Applicant’s argument on this point to be of no assistance to him.  The test still remains the same as before.

In the result, it is my considered view that this application for leave to appeal is devoid of merit.  Accordingly leave to appeal is denied with costs.

Matsikidze and Mucheche–Applicant’s Legal Practitioners

Baera and Company–Respondent’s Legal Practitioner