Phillip Zvose Mucheri v City of Harare

IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 27TH JUNE 2023 AND 1 SEPTEMBER 2023

In the matter between

PHILLIP ZVOSE MUCHERI

And

JUDGMENT NO LC/H/255/23 CASE NO.LC/H/240/23

APPLICANT

CITY OF HARARE	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE.

FOR THE APPLICANT	: Ms K Munyewede (Legal Practitioner) FOR THE RESPONDENT : Mr C Kwaramba(Legal Practtioner)

MAKAMURE J.

Introduction

This is an application for condonation for late noting of an appeal. It is opposed.

At the commencement of the hearing a preliminary issue was raised on behalf of the applicant. The issue was that the respondent filed the notice of opposition three days out of time and was therefore not properly before the Court. It turned out that the main reason why that happened was the connectivity problems with the IECMS. After considering submissions by the parties, the preliminary issue was dismissed. I then proceeded to hear the application for condonation.

It is a trite position that in order for an application of this nature to succeed the applicant must satisfy the necessary requirements. In Ismail Moosa Lunat v Mohammed Patel SC 47 /22 the Supreme Court held that:

‘The requirements for an application of this nature to succeed are well established. They are:

The extent of the delay;

The reasonableness of the explanation for the delay;

The prospects of success on appeal;

Respondent’s interest in the finality of the judgment in his/ her favour;

The convenience of the court; and

Avoidance of unnecessary delay in the administration of justice.’

The applicant was employed by the respondent as the City Architect, for the city of Harare. As part of his duties there were at least twelve projects which required his expertise, supervision and leadership. Targets were set following agreement between him and his superior .The targets were not met. This resulted in him facing disciplinary proceedings.At the conclusion of the disciplinary proceedings he was dismissed from the respondent’s employ on 3 July 2019 for ‘gross incompetency or inefficiency in the performance of his work’ in violation of s4(f) of the Labour (National Employment Code of Conduct) , Statutory Instrument 15 of 2006 (S.I.15/06). He was aggrieved by the outcome. However, there was no appeal structure within the respondent organization .In the result applicant challenged the dismissal through the office of a labour officer. The labour officer proceeded to deal with the matter in terms of s93(5a)(a) and (b) of the Labour Act , Chapter 28:01 (the Act ).This procedure required the labour officer concerned to conciliate the matter and then in the event of parties failing to settle the dispute between them, make a draft ruling. That draft ruling would then be brought to this Court by way of application so that it could be confirmed as an order of this Court. On 29 July 2019 parties appeared before a labour officer. They failed to agree. The labour officer ,after considering representations made by the parties, made a draft ruling and then proceeded to make an application for its confirmation before this Court. On 25 October 2022 this Court heard the matter and on 7 November 2022 an Order along the following terms was handed down:

‘The application for confirmation of the draft ruling is hereby struck off the roll by reason of it being improperly before the Court as the tribunal a quo lacked jurisdiction .’

The present application was filed on 30 March 2023.This is more than three years after his dismissal.

Applicant’s case

The applicant admits that the delay is inordinate but asks the court to consider the interruption of normal activities which was caused by the Covid -19 pandemic.

The applicant says he enjoys good prospects of success on appeal. He alleges that his dismissal by the respondent was irregular in that it was not sanctioned by the respondent’s

General Purposes and Human Resources Committee or any of the respondent’s committees. Applicant also argues that there is evidence to the effect that he failed to achieve the targets which were set for him because the respondent did not provide him with the requisite resources.

The applicant argues that the respondent will suffer no prejudice if the application is granted and that in fact it is him who stands to suffer if the application is declined as this would mean that he would not be able to challenge the dismissal as he has always been keen to prosecute the matter even though he started off in the wrong forum. For these reasons it was submitted that the application should succeed. Some of the authorities relied upon by the applicant are

:Florence Chimunda v Arnold Zimuto SC 76/14; Ganda v First Mutual Life Assurance Society SC01/05; Friendship v Cargo Carriers Ltd & Anor SC1/13;Isoquant Investments (Private ) Limited t/a ZIMOCO v Memory Darikwa CCZ 6/20; Ngazimbi v Murowa Diamonds (Pvt) Ltd 2013 (1) ZLR 569.

Respondent’s case

The application is vehemently opposed. In both the papers and argument before the Court it was argued that the applicant failed to perform his duties and failed to meet set targets which would have been agreed to between himself and his superior. While there may have been lack of resources in some instances, there were other duties which did not require the provision of resources. Such duties included supervision of his subordinates , holding meetings, providing budgets. As such the applicant cannot fault the dismissal and therefore there are no prospects of success. Further the applicant has always been represented . He spent time pursuing a remedy the wrong forum. That is clearly ignorance of the law. It was argued that ignorance of the law is no excuse. It was also argued that the applicant placed blame on the Covid -19 pandemic for his failure to timeously approach the court. It was argued that even during those periods when movement was restricted, there was access to the courts in view of Directions which were periodically issued from the office of the Chief Justice. Further even if it were accepted that the Covid -19 pandemic interrupted the ordinary operations of the courts, the applicant had knowledge of the order of this Court striking the matter off the roll in November 2022. Even with that knowledge, he took over three months to seek condonation. This it was argued ,constituted inordinate delay. In view of these

arguments it was submitted that the applicant has failed to discharge the onus required of him in order for the relief of condonation to be granted.

The following are some of the authorities relied on behalf of the respondent : United Plant Hire (Pvt) Ltd v Hills and Others 1976 (1)SA717 ;Mutizhe v Ganda and Others 2009 (1) ZLR 241 (S); Maheya v Independent African Church 2007 (2) ZLR 319(S); Nyakabangwe v Jaggers Trador (Pvt)Ltd HH-146-03; Viking Woodwork (Pvt) Ltd v Bluebells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S); Kodzwa v Secretary for Health and Anor 1999(1)313 (S).

Analysis

Condonation is a relief which is not to be lightly viewed. It should only be granted where and when it is necessary and most importantly in order to ensure that justice is done. This is why the courts have over time insisted that certain requirements be met. If there were no such requirements the courts would be inundated with applications for condonation and there would never be finality to litigation. In Rinos Terera v 1) George Lentaigne Ingram Lock and Three Others SC 93/21 the Supreme Court stated that the applicant must be candid with the court in their explanation in order to satisfy the court that their explanation is reasonable and deserves the empathy of the court and that there are prospects of success should the indulgence be granted. The Supreme Court proceeded to refer to the case of Viking Woodwork (supra) where following was stated:

‘In Kodzwa v Secretary for Health and Anor 1999(1) ZLR 313 (S) at 315 B-E the court aptly indicated that:

‘The factors which the court should consider in determining an application for condonation are clearly set out in Herbstein & van Winsen’s The Civil Practice of the Supreme Court of South Africa 4th ed by van Winsen Cilliers and Loots at pp897-898 as follows:

Condonation of non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance…

The court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. In the determination whether sufficient cause

has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all facts and in essence, it is a matter of fairness to both sides in which the court will endeavor to reach a conclusion that will be in the best interests of justice. The factors usually weighed by the court in considering applications for condonation… include the degree of non- compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.”

In the present matter the delay is inordinate. However, if, the explanation for the delay is satisfactory, the cumulative effect of the requirements may tilt the balance in favour of the applicant. The applicant pleaded ignorance of the law. He was represented and yet he pursued the wrong remedy. As is trite that , even had he been a self-actor, ignorance of the law is not a defence. Therefore, the delay is both inordinate and inexcusable. The applicant submitted that he has always been keen to prosecute his matter. That is commendable . Unfortunately, no matter how deep the desire to prosecute the matter is or may be, still the applicant must meet the necessary requirements.

The record confirms that indeed there were circumstances where lack of resources affected his performance. However, there were other duties which did not require ‘resources’. There are a few examples which are on record. His duties included holding departmental meetings. In order for him to hold departmental meetings, all he needed to do was to ensure that he called for such meetings and the persons concerned, i.e., the ‘resources’ would avail themselves. It would then be a different situation if his subordinates were uncooperative. Further, he was required to do budgets for his department. He did not do them . Where he was required to make supplementary budgets either he did not know or did not seek guidance. He did not follow up with procurement in order to ensure that the requirements of his department were met. All these examples would have enabled him to at least meet certain targets. These examples show only one thing, that is, no matter how satisfactory the explanation for the delay and the extent thereof may be , the finding of guilt by the disciplinary authority is beyond reproach. Further one of the proposed grounds of appeal suggests that the decision of the disciplinary authority needed to be sanctioned by one or other of the respondent’s committees . This does not form part

S.I. 15/06 which is the code used to discipline the applicant. What this means is that the prospects of success on appeal are slim.

In view of the foregoing, I find that there is no merit in the application. The application fails.

Accordingly, it is ordered that :

The application for condonation for late noting of an appeal be and is hereby dismissed with costs.

J MAMBARA& PARTNERS, APPLICANT’S LEGAL PRACTITIONERS.

MBIDZO MUCHADEHAMA& MAKONI RESPONDET’S LEGAL PRACTITIONERS.