Samuel Linjesa v Local Authorities Pension Fund & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/134/2020
HARARE, 12 NOVEMBER 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/134/2020

HARARE, 12 NOVEMBER 2019		          	    CASE NO. LC/H/APP/224/19

AND 12 JUNE 2020

In the matter between:

SAMUEL LINJESA								APPLICANT

Versus

LOCAL AUTHORITIES PENSION FUND				1ST RESPONDENT

T. SAKAROMBE								2ND RESPONDENT

Before The Honourable Kachambwa J; & Hon. Hove J

Appellant

For Respondents

KACHAMBWA J:

This is an application for condonation for late noting of an appeal. The application is almost three years out of time. A reading of the papers filed for the application would lead one to think that infact it is an application for review if one does not read the notice. The papers do not deal with the main issues that such an application must address. Only the reason for delay is addressed. Nevertheless the court was generous enough not to dismiss the application out of hand but pointed to the applicant the issues that needed to be addressed. The application was opposed. The first respondent in its response pointed out the same deficiences that the court explained to the applicant. Therefore the applicant was not hearing this for the first time in court. It was in the notice of response and the heads of argument and yet he had not rectified the situation neither had he prepared himself to make oral submissions on the issues.

The court had to strenuously explain the need to address these issues. Be that as it may, the applicant’s reason for delay is that he had persued an application for review rather an appeal. He thereafter blames all and sundry for having delayed the outcome of that process and therefore causing him to delay on the noting of his appeal. In other words he did not accept his fault in persuing a review without also persuing an appeal simultaneously. It will be noted that the applicant was legally represented in his application for review and even in the proceedings prior. Secondly, it will be noted that the rules actually requires that each be done within the same time. Thirdly, the applicant made a choice to persue a review and not both the review and an appeal. Only when the review failed did he decide to embark on an appeal, out of time unfortunately. He made a wrong choice. He should have persued both at the same time.

The applicant made his choice, literally his bed. Now he is refusing to lie on it. He is also unwilling to blame himself for his mistake. He seems to be ridding on the mistaken belief that condonation is for the asking and that it is his right to be heard. That is wrong. It is important for litigants to appreciate that the court assists the diligent. It is important to understand that in litigation it is not the rights of the employees alone that are at play. These rights do not exist in a vacuum. They are not available ad infinitum. They must be diligently exercised.

The reason for the delay is not an acceptable reason at law.  The applicant made a deliberate choice not to appeal in time and not to appeal at all at the time. He decided to put all his eggs in one basket. So it is none but himself to blame. His explanation is not acceptable. I totally agree with Mathonsi J (as he then was)  in Martin Jongwe v National Foods Limited and Labour Court (Bulawayo – Hon Kabasa) HB 147-18 wherein at pages 5-6 of the cyclostyled judgment he says,

“The applicant’s explanation for the failure to file a review application within eight weeks is that, although he was indeed aware of eight weeks requirement, he had to first try his luck at seeking leave to appeal. When that failed he had to fall back on a review application. After that he misunderstood the rules. In my view that is not an acceptable explanation at all. Condonation is not granted and is indeed not available because a party has failed in his or her pursuit of another remedy and because he or she would not want to accept his fate he or she would rather try luck elsewhere”.

Musemburi & Another v Tshuma 2013 (1) ZLR 526 (5)”

Thus the reason for delay alone does not justify condoning the applicant. The applicant

is mistaken to think that it is only him who matters in this application. The respondent’s

interests matter. The administration of justice matters. The convenience of the courts

matters. Justice does not revolve around him. All affected parties matter.

In an application for condonation for failure to do something in time the courts

do not consider the reasons for delay only. The following are also considered-

1.	the length of the delay

2.	 the need for finality to litigation,

3.	the importance of the case jurisprudentially,

4.	the convenience to the administration of justice,

5.	the prospects of success in the intended action, if condonation is granted,

and

6.	prejudice to the respondent.

These are considered cumulatively.

The applicant only adverted to these points on probing by the court as I have already indicated. However he did not address on the extent/degree of delay. It is almost three years. He would not have appealed if he had succeeded in the other route that, he took. So one may not find it easy to assess in that regard. However three years without appealing when one is aware of the availability of the process is a very long time for an employee. So it is likely that an employer could have moved on with appointments at the workplace.

On finality to litigation the applicant says he was clear of that need all along and blames the respondent for the delaying tactics. Once again the applicant misses the point. The issue of finality is in view of the appeal. He should have appealed at the time of applying for review. We cannot be chasing one procedure after another. That will drag matters for eternity. He cannot blame anyone. He is to blame.

The applicant also said that the case was important. True it would naturally be important to him as it decides his livelihood just as it would do for any employee in his circumstances. But we need more than that. Is it an important case for the establishment of a jurisprudential point? Is it important because of its ramification in the industry or at the place of employment. There is nothing to show any of these.

The applicant did not deal with the convenience in the administration of justice or to the court. Apparently, nothing is  in his favour.

The applicant says that there are good prospects of success in his intended appeal. We have pointed out earlier that his papers read more like an application for review. The issues are mixed up. He is apparently mainly concerned with procedural issues. There are no clear prospects of success. In any case this is a case where the fragrant failure to adhere to the timelines does not show the applicant in good stead even if there are some prospects of success. The applicant made a choice for which none but himself is to blame. There is no equity in allowing him to inconvenience everyone else involved in the litigation. The convenience of the case requires that he be inconvenienced himself by dismissing this application.

The court takes note of the fact that the courts have been complaining, so to speak, for a long time now, about the growing industry of incompetence leading to applications for condonation, rescission and so forth. These complaints go as far back as the sixties in the case classicus of Saloojee & Another NNO v Minister of Community Development 1965 (2) SA 135. This line of cases is amply reflected in a most recent case of Leonard Dzvairo v Kango Products SC 35/2017 which was heard by Guvava JA. There is reference to the case of Ndebele v Ncube 1992 (1) ZLR 288 (S) where McNally JA says that,

“It is the policy of the law that there should be finality in litigation. On the other hand one does not want to do injustice to litigants. But it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, or for other relief arising out of delays either by individuals or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.

The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt-roughly translated, the law will help the vigilant but not the sluggard”. (Own emphasis)

It is observed that indeed in the present case the applicant was not diligent. Infact he

made a wrong choice of persuing one process instead of both. He cannot be heard to

cry. Moreso when he does not accept his blame.

There is need to remind the applicants who seek condonation that condonation is not

granted on the mere asking. It must be deserved. This attitude seems to be prevalent

in the Labour Court where parties even want to argue equity as a reason for granting

such applications. Gowora JA reminds us of this in Marvellous Taruvinga v (1)  Cobra

Security (Private) Limited (2) Misheck Brian Zvarivadza  (3) Tapson Madzivire SC

24/2017 where the learned Judge says that, at page 5 of the cyclostyled judgment:

“A litigant who has not complied with the rules is entitled to seek condonation from the court from such none-compliance. A court, may on good cause grant condonation for failure to comply with rules of court but such condonation is not to be had merely for the asking. An applicant seeking condonation has an onus to establish good cause. That is to say that such applicant must provide a full detailed and accurate account of the reasons for the delay and the failure to do that which the rules require to be done”. (my emphasis).

Condonation is a matter for discretion. It is not a right on application. It is a result of considering many aspects as held in Bishi v Secretary for Education 1989 (2) ZLR 240 HC at 242 D – 243C.

“It is well settled that, in considering applications for condonation, the court has a discretion to be exercised judiciary upon a consideration of all of the facts, and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations may include the degree of none-compliance with the Rules, the explanation thereof, the prospects of success on appeal, the importance of the case, 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. The list is not exhaustive. These factors are not individually but are interrelated and must be weighed one against the other…..”

It is this court’s considered view that the applicant has not met the threshold to be condoned. Accordingly the application for condonation fails.

IT IS ORDERED THAT;

The application for condonation be and is hereby dismissed with costs.

………………………………………		…………………………………………….	KACHAMBWA J					HOVE J: I agree