Shepherd Chipunza v Hammer & Tongues Auctioneers (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/131/2021
HARARE, 9 JULY 2021
CASE NO. LC/H/27/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/131/2021

HARARE, 9 JULY 2021	                                      CASE NO. LC/H/APP/21/21

AND 10 SEPTEMBER 2021

SHEPHERD CHIPUNZA							Applicant

HAMMER & TONGUES AUCTIONEERS (PVT) LTD			Respondent

Before the Honourable G. Musariri, Judge

For Applicant		Mr A. Chambati, Attorney

For Respondent		Mr G. M. Nyangwa, Attorney

REPORTABLE JUDGMENT

MUSARIRI, J:

Applicant applied to this court for the condonation of his delay in filing a review application. Respondent opposed the application for condonation I shall deal with the matter under sub – titles “Delay” and “Prospects.”

Delay

Applicant stated that his employment was terminated by Respondent through a letter dated the 18th February 2015. It is that termination which he wishes to take on review. The present application was filed on the 19th March 2021. That means that the delay extends over six (6) years. Applicant himself admitted that the extent of the delay is inordinate. However, he argued that the reasons for the delay are plausible.

The record shows that Applicant was not sitting on his hands. He challenged his termination by complaint to an Arbitrator/Labour Officer. The matter was determined in his favour. The matter then wound its way right up to the Supreme Court. Filed of record is a Supreme Court order reference 0020714 date – stamped the 19th March 2021. That order nullified all proceedings post his earlier termination. The nullification was based upon the analysis in the matter of

Sakarombe v Montana

SC 44/20

where Gowora JA opined that, at p 21;

“(49)	In my view the principle emerging from all authorities referred to above can be summarized by the statement, to the effect that a labour officer does not have any jurisdiction under s 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct.”

Applicant’s attorney stated he did not become of this precedent on time. He only became aware of it belatedly whereupon he mounted the present application. Respondent submitted that Applicant should have learnt of the precedent on time. However I am prepared to give Appellant the benefit of doubt on his explanation for his delay.

Prospects

Respondent submitted that Applicant does not have reasonable prospects of success. The appeal he wishes to bring is overdue by six (6) years. It has therefore prescribed in terms of the Prescription Act [Chapter 8:11] Respondent specifically relied on the following dicta in the case of

Manjovha v Delta SC 64/21 wherein Bhunu JA at p 5 stated that:

“It is trite that ordinary debts are irrevocably extinguished by prescription after    3 years in terms of s 15 (d) of the Prescription Act. Section 2 defines a debt as including anything that may be sued for. That definition squarely brings an appeal within the ambit of the definition of a debt. The definition therefore renders an appeal subject to the Prescription Act.”

By parity of reasoning the right to appeal in the present case lapsed three (3) years after the termination in question. Applicant sought to argue that the Rules of this court do not set a limit to the period of delay which may be condoned. I consider that argument as unpersuasive. The Rules of this court should be read together with the Prescription Act. Where there is inconsistency or ambiguity that Act prevails over the Court’s Rules. I therefore consider that Applicant lacks reasonable prospects of success on appeal.

Though I have found Applicant’s explanation for his delay as plausible, he came short on the question of prospects of success on the merits. For that reason the application for condonation failed.

Wherefore it is ordered that:

1.	The application for condonation be and is hereby dismissed; and

2.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E