Phyllis Mafuwa v Silo Food Industries

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE HARARE, 17
JUDGMENT NO
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 17 SEMPTEMBER, 2024 & 4

MARCH 2025

In the matter between: -

PHYLLIS MAFUWA

SILO FOOD INDUSTRIES

JUDGMENT NO LC/H/83/25 CASE NO LC/H/769/24

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant	W. Mutsvadziwa ((Legal Practitioner)

For the Respondent	S.M. Bhebhe (Legal Practitioner)

KUDYA, J:

This is an application for condonation for late noting of an appeal and extension of time within which to file the same.

Facts leading to this application as follows; -

Applicant who was in the respondent’s employment as a Nutritionist Stock Feed was suspended from employment on 26 February 2024 on allegations of engaging in conduct inconsistent with conditions of her employment and habitual and substantial neglect of duty in contravention of the Model Code.

She was said to have produced poor quality stock feed which resulted in customers shunning the product. She was also accused of having failed to attend to customer complaints notwithstanding the fact that she had a written warning in that regard. A disciplinary committee

which dealt with her matter found her guilty and dismissed her from employment. She appealed internally without success. She then filed an appeal with the Labour Court under LC/H/567/24. Such an appeal was filed within the times set out in the Labour Court Rules but the appeal was struck off the roll-on account of the fact that it did not certain precise and concise appeal grounds.

She still intends to pursue her appeal but because LC/H/567/24 was struck off she is now out of time to file her appeal. She has therefore approached this court on the instant application where she seeks the court to condone the delay and to allow her to file a properly worded appeal this time.

As at the date of filing of the application she says she was out by 21 days. She states that the error of poorly worded appeal grounds was technical and should not be used to shut the door for her intended appeal. She has to that end filed with the court reasonably properly worded appeal grounds, A reading of the grounds in question demonstrates clearly that even though they are quite a number of them they speak to essentially very few issues these being (1) absence of scientific evidence to determine guilt (2) uncontested evidence that feed passed internal quality tests (3) uncontroverted evidence that lab equipment to test feed was malfunctional in particular that the software used had expired (4) Aggrieved customers were not called to give viva voce evidence (5) customer complaints files were not produced (6) the UZ report was not admitted yet it was considered to determine her guilt and finally (7) mitigation was elicited before pronouncement of a verdict suggesting that the guilty verdict was pre-meditated.

In a nutshell her main query was that she was found guilty in circumstances where there was dearth of evidence to support the verdict and that the dismissal penalty was inappropriate as it demonstrated pre prejudgment of her guilt.

The respondent employer is opposed to the grant of condonation relief. Its argument is mainly that the applicant was not serious in prosecuting her appeals. It says it brought to the applicant’s attention the defects on the appeal LC/H/567/24 but she did not take heed. She insisted with the ill worded grounds until the appeal was struck off when it landed before the judge. It states also that appellant has no good case on appeal and maintains that the evidence led to prove her

guilt on a balance of probabilities was sufficient such that it would be an exercise in futility to grant condonation in an ill-fated appeal.

It states also that the applicant only addressed the excuse and prospect tenets of her of condonation application leaving out the other tenets like, convenience of the court, finality to litigation and the importance of the case. It argues that since applicant did not motivate the rest of the condonation tenets it means that she does not have a good case and such should be dismissed.

The law on condonation is settled See Jansen v Acavalos 1993(1) ZLR216(S). A reading of the pleadings in the matter at hand speak to the fact that applicant mainly motivated the first 2 tenets of the condonation test, that is, excuse and prospects. It is equally settled that it is the cumulative effect of all the tenets that carries the day when a decision to condone or not to condone has to be made.

In the case at hand, it is apparent from the intended appeal grounds that the queries raised by the applicant intend to mutate the standard of proof in labour matter to proof beyond reasonable doubt yet the test is only on a balance of probability See ZESA VS Dera 1998(1) ZLR500. It would therefore be an exercise in futility for the Labour Court to engage in an exercise where it seeks to elevate the standard of proof to what is not in accord with the law.

A reading of the facts of the case shows that feed complaints did emanate not from a single source but form people in geographically different areas. The issue about the performance of the machines and the internal quality control endorsement seems to suggest that applicant concedes that she produced poor feed but has excuses for that. Once that is taken it becomes clear that such can only be mitigatory.

On the issue of the witnesses, it was not fatal these were not called. The record does not show that she demanded their presence for cross examination and was denied that chance. Very little therefore turns on the witness issue.

On the penalty it is settled that this is the employer’s propagative See Nyawasha v Circle CemenSC60/03. It is clear that applicant has a porous case not worthy of detaining the court

on appeal. Since she did not attempt to relate to the rest of the tenets for condonation it shall be taken that such were not motivated and therefore those tenets cannot aid her application.

On the question of costs, it is clear that respondent has been unnecessary put out pocket unnecessarily by having to defend a porous claim. It is also sad to note that for all times applicant has been legally represented so the court cannot appreciate why her legally trained representation could fail to set out the appeal grounds properly. It is settled that the lawyer’s sins can be visited on the client. See Sithole v Peniwill Pvt Ltd HCH325/23. This is one such case where despite protest from the other party the employee has persisted with her ill-fated case. A punitive costs order is therefore called for. The application therefore fails with costs on a legal practitioner scale

IT IS ORDERED THAT;

Application for condonation for late filing of an appeal and extension of time within which to file same be and is hereby dismissed for lack of merit with costs on a legal practitioner scale.

Mutendi Mudisi and Shumba		Appellant’s Legal Practitioners Kantor &Immerman	Respondent’s Legal Practitioners