Robson Musekiwa v Zimplates

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/429/2016
HARARE, 9 JUNE 2016 &
CASE NO LC/H/APP/1495/2015
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/429/2016

HARARE, 9 JUNE 2016 &				          CASE NO LC/H/APP/1495/2015

22 JULY 2016

In the matter between

ROBSON MUSEKIWA							APPLICANT

Versus

ZIMPLATES									RESPONDENT

Before the Honourable Kudya J

The Applicant in Person

For the Respondent	Ms R Makamure (Legal Practitioner)

KUDYA J:

This is an application for condonation for late filing of an application for leave to appeal to the Supreme Court. It is made at the instance of the applicant employee in a case where the Labour Court dismissed his appeal against his dismissal from work following misconduct allegations of theft of used drums at the respondent’s.

The basis for the application is that the applicant failed to apply for leave on time because he got to know of the appeal judgment later than the hand down date of the same. He also argues that he has a bona fide case on the merits of his leave application because he is satisfied that the essential elements of the theft which saw him lose his job were not canvassed properly. He therefore believes that the Supreme Court can find that no theft took place but that only a misunderstanding between him and the guards ensued when he was about to take away the drums which he had purchased from his workplace.

The respondent is opposed to the grant of the condonation application. It argues firstly that the condonation application is bad at law since it is not on Form LCI as required by the rules of court. It therefore prays that the application be dismissed on the basis of that point at the outset. It however goes further to argue that even if the application were to be ruled to be good at law it still fails the rest of the tests to be passed before condonation relief is granted to a party.

In this respect it maintains that the applicant’s application has no prospects on the merits because he has not demonstrated that his intended appeal to the Supreme Court is on points of law and that the Labour Court seriously misdirected itself on the facts of the matter that the Supreme Court would want to have a re-look at the matter. It argues also that the explanation for the default is porous as it only points to tardiness on the part of the applicant and his representatives who failed to keep checking whether judgment on the appeal was out and ended up getting that knowledge way beyond the period when the judgment was handed down. In the result it argues that the application is a waste of the court’s time where the applicant whilst seeking to be condoned for the breach of the rule vis delay in filing leave to appeal application, he has also failed to do so on the proper form or a substituted version of the same.

In the result it prays that even on the merits the application be dismissed since in its view the application is not merited at all.

The legal principles applying to such applications are settled and contained in the vast authorities cited by the respondent and the applicant. Suffice to say that the long stretch of cases quoted is apparent in the heads of argument for the respondent and thus don’t deserve re-statement as that serves no meaningful purpose.

In respect of the point which was taken at the outset the applicant concedes that he did not use Form LCI and neither did he substitute it with one closer to it. He however attributes that to his self-acting status and fact that he misunderstood LCI to exclude applications of the nature of the one in the case which is at hand.  The respondent however correctly observed in its submission that the self-acting status of the applicant is no excuse to his failure to adhere to the rules of court. The court agrees with these sentiments especially when such an anomaly was brought to the applicant’s attention way before the set down date of this matter. His persistence with same and failure to take the trouble to pursue the default speaks of a sluggish approach to the matter. The court is therefore satisfied that the point is well placed and it should succeed.

If the court were to condone the non-compliance with the rules vis the form the applicant still has to pass the test in respect of the rest of the tenets of such application. The leading case of Jansen v Acavalos 1993 (1) ZLR 216 (S) is instructive in this respect. Each of the elements are looked at below:

Explanation for the default

The applicant says his representative kept checking on the progress of the matter and only got surprised to learn that judgment had been handed down in October 2015.  He to that extent attached a copy of a document from his representatives supporting that fact. Whilst the court has no reason to doubt the correctness of the information on the document by the applicant’s representative it also wonders why the court records would show that judgment was handed down in October 2015 and the fact that such hand down was brought to the attention of the applicant’s representative. Besides, it is trite that the hand down date is presumed to be the date a party becomes aware of the judgment unless cogent reason is advanced to the contrary. Apart from the representative’s mere say so there is nothing to persuade the court that indeed the applicant only got knowledge of the judgment in December 2015. The court is therefore satisfied that the explanation for the default advanced by the applicant is not persuasive to the court for reasons already highlighted above.

Prospects of Success

In this respect the applicant states that even if he did not attach the notice of appeal he believes he has prospects of success on appeal and he referred the court to his heads of argument filed of record. In his heads of argument he maintains that his guilt was not proven properly hence a superior tribunal brought be persuaded to rule differently.

It is settled law that only points of law or gross misdirection amounting to a point of law can found an appealable case. See Masekesa v Kingdon Holdings SC-18-12 and Chikurunhe v ZBH SC-10-08. It is clear from facts of the matter at hand that nothing averred by the applicant comes closer to satisfying the test set out in the above quoted case. A reading of the Labour Court judgment will demonstrate that the arguments advanced by the applicant vis his guilt were carefully analysed before the court concluded that he had no good case on appeal. There is nothing more which has been pleaded to persuade the court that the Supreme Court would be persuaded to preside over as points of law as required by law. In the ultimate the court is satisfied that it would be meaningless to allow the condonation in a case which is palpably porous as the applicant’s case.

The court is persuaded that from a technical perspective that is in reference to the wrong form and from a substantive perspective that is in respect of the reason for default and the prospects on the merits the case at hand is no good case for the relief sought. The balance of convenience favours the refusal of such an application.

IT IS ORDERED THAT

The application for condonation of the late noting of an application for leave to appeal to the Supreme Court being without merit, it be and is hereby dismissed with costs.

Kantor & Immerman, respondent’s legal practitioners