Solomon Phiri v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 6 FEBRUARY 2024
JUDGMENT NO LC/H/115/24 CASE NO
LC/H/989/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 6 FEBRUARY 2024

JUDGMENT NO LC/H/115/24 CASE NO LC/H/989/23

In the matter between:-

SOLOMON PHIRI	APPLICANT

OK ZIMBABWE LIMITED	RESPONDENT

Before the Honourable Kudya J

For the Applicant	E. Ngwerume (Legal Practitioner) For the Respondent	R.T.L. Matsika (Legal Practitioner)

KUDYA, J:

This is an application for condonation of late noting of an appeal. The background to the matter is that appellant who was in the respondent’s employment was charged with acts of misconduct and taken before a disciplinary committee which found him guilty of the misconduct and dismissed him from employment. He lodged his appeals internally without success. He then appealed to the labour court within the time lines set out by the rules but ended up withdrawing that appeal after the employer successfully challenged some of the appeal grounds which he had placed before the court. He is still desirous of prosecuting his appeal but on account of the previously withdrawn appeal he is now out of time to appeal.

This has necessitated his application to this court on the condonation application which is the subject of this judgment. The employer is opposed to the grant of condonation relief citing mainly the fact that applicant does not have a good case on appeal. It argues in particular that applicant fell far short of his supervisory role resulting in purchases being continued with Filbaks despite a ban on such trading with that entity. It reasons therefore that since applicant concedes his supervisory rule and since the purchases continued despite the ban it meant that

he fell below the expectation of his duties. It concluded thus that there is no point in granting condonation where it is clear that applicant fell foul as stated above. The tenets for condonation are settled See Jansen v Acavalos 1993(1) ZLR 216 (S).

Extent and explanation for the delay

In the case at hand the employer dismissed the applicant’s appeal on 23 December 2022 so applicant should have filed his appeal within 21 days from that date. He filed the instant application on 29 November 2023 which means he is out of time by around 11 months. His explanation as already stated is that his initial appeal met its still birth when it was withdrawn for some ill cited appeal grounds. What is apparent from the chronology of the events is that whilst some of the grounds were ill written some of them indeed passed the test of appeals grounds. It is settled that where some of the appeal grounds are in order and where some are bad at law within the same pleadings the court is enjoined to proceed with those grounds which pass the test See Kunonga v CPCA SC-25-17. What can be gleaned from the excuse tendered is that indeed some of the grounds could be proceeded with by the appellant. The excuse given therefore is merited and can excuse the breach of the rules of court.

Merits

It is settled that the test in condonation is cumulative or conjunctive See Jansen Acavales 1993(1) ZLR 216(S). It is therefore imperative for the court to tweak the merits of the appeal so that it can conclude whether to grant or to deny the condonation sought. In the case at hand both parties have diametrically opposed versions of the alleged misconduct. The employer contends that employee failed in his duty as the ban was breached under his nose whilst the employee is adamant that there was no way he could have detected the breach of the ban which was taking place at stations out of his reach. It is noted that both parties went at length to demonstrate their diametrically opposed positions. It is clear that on account of the described set up it is imperative for the appeal court to have a look at the matter and see whether the facts of the matter birthing the guilty verdict and dismissal penalty are in sync with either position. To that extent the applicant has a plausible case that needs further interrogation by the appeal court.

As regards the importance of the case it is clear that the case is important to the applicant as he is of the view that he was relieved of his job in circumstances where that should not have happened.

As regards prejudice on the respondent it goes without doubt that the employers wants finality to its affairs with applicant and such a desire is indeed within the expectation of the law on finality to litigation See CFI v Machaya SC 37-23. It need however be observed that there can not be finality to litigation until the law has found expression in the decision on whether or not the applicant lost his job properly. On the convenience of the court and evidence of unnecessary delay it can not be over emphasised that the convenience of the court is favoured by grant of condonation relief to ensure that the real issues of the appeal are ventilated once and for all by the parties. In the ultimate the court is satisfied that a good case for condonation has been made out. It should therefore succeed.

IT IS ORDERED THAT

Application for condonation of late noting of an appeal and extension within which to appeal being merited it be and hereby succeeds.

Applicant is given 10 days from date of this court order to file his appeal. Each party bears own costs.

Chatsanga and Partners, Applicant’s Legal Practitioners

Wintertons, Respondent’s Legal Practitioners