Shadreck Mkuwu and Godknows Dube v John Mack and Company t/a Golden Valley Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 19 JULY 2023
JUDGMENT NO LC/H/260/2023
CASE NO LC/H/278/23 AND LC/H/277/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 19 JULY 2023 & 6

SEPTEMBER 2023

JUDGMENT NO LC/H/260/2023

CASE NO LC/H/278/23 AND LC/H/277/23

In the matter between:-

SHADRECK MKUWU GODKNOWS DUBE

1st APPLICANT

2nd APPLICANT

JOHN MACK AND COMPANY	RESPONDENT t/a GOLDEN VALLEY MINE

Before the Honourable Kudya J

For the Applicant	Mr Walter Kamusasa (Legal Practitioner) For the Respondent	Mr Herbert Mutasa (Legal Practitioner)

KUDYA, J:

This judgment addresses applications for condonation for late filing of applications for review and appeal by 2 employees of Golden Valley Mine namely Shadreck Mkuwu in LC/H/278/23 and Godknows Dube LC/H/277/23. On account of the fact that the matters deal with the same subject and that the relief sought is the same the parties to the matters requested that both matters be consolidated and be decided as a single matter. In the result the court ordered by consent on 19 July 2023 that the 2 matters be consolidated. This judgment therefore addresses the matters in their consolidated form. The parties are agreed that the law is settled vis condonation See Jansen v Acavalos 1993 (1) ZLR 216(S). Their point of departure however is where the employees say they have a good excuse for their default and that they have plausible cases on appeal and review.

On the other hand the employer is adamant that no good excuse has been proferred by the applicants and that they do not have merited cases on appeal and review.

It is noteworthy that the main basis for the argument that the employees do not have good cases on appeal and review is that the employer was of the view that there were breaches of the form which the appeal and the review had to take. In particular the argument was that the draft notice of appeal and review did not comply with the rules as they were put in without affidavits which are required by the rules. The employer also argued that the appeals and reviews did not contain clear and concise grounds as required by law.

Being that as it may the employer stated that it was not persisting with this point as a point in limine but would address that as part of the merits of the condonation application. Having technically withdrawn the points in that regard it was the employees’ view that the employer could not seek to rely on the same to oppose the application. The court is persuaded by the employees’ argument that once the employer had stated that it was not pursuing the argument about the form of the intended review or appeal it could not turn round to rely on the same again. The employer cannot probate and reprobate at the same time. See Alliance Insurance v Imperial Plastics Pvt Ltd SC 30-17. It is clear from the withdrawal of the points in limine that the employer was not keen on persisting with them hence it could not resuscitate that when the merits of the application were now being entertained.

Turning to the application at stake the employees give the excuse that they are about 5 months out of time because they were looking for funds to engage counsel. The employer says it doubts the sincerity of the excuse since the employees did not explain how much and how they were trying to source the funds as well as details of which counsel and when they eventually got the funds. It is common cause that the employees lost their jobs hence it would not be stretching one’s imagination to accept that they could have difficulties to raise legal fees to file their reviews and appeals with the court. It is the court’s view that intricacies of how much and when the money was found do not detract from the fact that a person who is out of a job can face challenges to mount litigation using counsel. The court is satisfied that the extra questions that employer says should have been argued do not detract from the fact that the employees were genuinely without means to pursue their matter and 5 months cannot be adjudged to be inordinate. The court is satisfied that the excuse given by the employees is plausible and can assist them to be allowed to approach the court on review or appeal.

On the merits plane the crux of the matter is that the employees’ view are that their guilt was birthed by insufficient evidence and that the process leading to their loss of jobs was flawed especially if one has regard to the fact that they were not invited to mitigate before a penalty

was meted out on them. It is the court’s view that the issues they are raising are plausible and need to be given their day in court. It need be observed that at this stage the employees are not obliged to provide a case without loopholes at all but just a plausible case which can be tested by the appellate or the review court. The argument that the employees did not challenge the fact that they were not asked to mitigate does not detract from the right to do so. It is clearly a legal requirement which should have been fulfilled by the employer so that the employees could be said to have been afforded a fair hearing See Sec Labour Act on mitigation.

In the ultimate the court is satisfied that the employees have a good excuse for their default and have a plausible case on appeal and review. To that extent the condonation application should succeed.

The court does not lose sight of the fact that there is need for finality to litigation. See Muwani v Mugumwa HC-116-15. This should however be achieved in a case which has been dealt with holistically and within all the dictates of the law. It should thus not be used to deny the employees their rights of appeal and review where they genuinely believe that their matters can be determined differently. The interests of justice and importance of the case to the parties dictate that condonation be granted.

IT IS ORDERED THAT

Application for condonation of late filing of review and appeal be and is hereby granted. Each applicant is to file his appeal or review within 10 days of this order. Each party bears own costs.

Lunga Mazikana Attorneys, Applicant’s Legal Practitioners

Gill Godlonton and Gerrans, Respondents Legal Practitioners