Sungano Mabodo v Municipality of Marondera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/647/2014
HARARE, 18 & 26 SEPTEMBER 2014
CASE NO. LC/H/647/2014
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IN THE LABOUR COURT OF ZIMBABWE      	      JUDGMENT NO. LC/H/647/2014

HARARE, 18 & 26 SEPTEMBER 2014		         CASE NO. LC/CON/H/130/13

In the matter between:-

SUNGANO MABODO						Applicant

And

MUNICIPALITY OF MARONDERA				Respondent

Before The Honourable B.T Chivizhe, Judge

Applicant			In Person

For Respondent 		Mr. O. Shava (Legal Practitioner)

CHIVIZHE, J:

This is an application for condonation of late noting of an appeal.  The application is opposed by the Respondent.

The factors/principles applicable in an application of this nature were set out in United Plant Hire (Pvt) Ltd vs Hills and Others 1976 (1) SA 717 (A) aptly cited by the Respondent.  The factors include (d) the degree of non-compliance with the Rules (b) the explanation thereof (c) prospects of success on appeal, etc.

The Applicant in casu who had been represented throughout but was now appearing as a self actor explained the extent of delay and the reasons thereof.  He submitted that the extent of delay being 3 months was a short period of delay.  He had to wait for 3 months from the date of receipt of the quantification award due to discussions that were ongoing between the parties.  He was also short of funds and could not secure the services of a legal practitioner.  Upon retaining the services of counsel he had then filed the present application for condonation of late noting of appeal.

On prospects of success it was his submission that the Arbitrator had grossly erred when he concluded that the issue of Applicant’s status of employment was not before him, he also erred when he concluded that the Applicant’s status had not changed from a fixed term contract to a permanent contract on the basis of provisions under Section 12 (3) of the Act.  It was Applicant contention the Respondent had clearly casualised his labour.  On the basis of provisions in section 12 (3) his contract of employment had changed from a fixed term to a permanent contract of employment.

The Respondent noted that the Applicant had in oral submissions supplemented on his reasons for the delay.  It was Respondent position the evidence which did not form part of Applicant Founding Affidavit be disregarded.  With regards to the reason that there were ongoing discussions between the parties which prevented the Applicant from noting an appeal there was insufficient information as to the extent and nature of these discussions before the court.  On the second reason tendered by the Applicant the record showed that Applicant had secured services of a legal practitioner a month after receipt of the arbitral award.  He had then sought enforcement of the award by applying for the registration of award in the Magistrates Court. No cogent explanation had been tendered as to why no appeal had been filed immediately after obtaining legal services.  On prospects of success it was Respondent’s submission that the appeal had nil prospects of success on the basis that, the Arbitrator made factual findings that the issue of Applicant’s status of employment was not properly before him.  That factual finding had not been challenged by the Applicant.  The Applicant had also misinterpreted the provisions in Section 12(3) by submitting that his fixed term contract had due to continuous renewals graduated into a permanent contract.  That position is simply not correct at law.  Lastly the Respondent submitted that Applicant having sought enforcement of the award in the Magistrates Court had been paid in settlement.  The Applicant could not therefore seek to challenge the same award he had clearly benefited from.  It was Respondent submission that noting an appeal in those circumstances was clearly against Public Policy.

I am satisfied that the Applicant in this case has not shown good cause for condonation to be granted in his favour.  Whilst the period of delay is a short one the explanation tendered for the delay in noting an appeal is not convincing.  The Applicant has not satisfactorily explained why he could not have noted his appeal immediately after receiving the arbitral award and more especially after securing the services of a legal practitioner.  The Applicant has also referred to discussions that were taking place between the parties.  Apart from his mere say so nothing has been placed before the court to show the nature and extent of these discussions.  The explanation is clearly not convincing.

The most important and overriding factor however in this matter is that the Applicant clearly has nil prospects of success on appeal.  It is clear upon perusal of the award that the Arbitrator concluded that as the issue of whether or not the Applicant had became a permanent employee by virtue of continuous renewal of his fixed term contract was not referred to him he could not determine the issue.  Even if it could be said that the Arbitrator was wrong in taking that approach the Applicant‘s arguments based on casualisation are in any event  clearly misplaced and indicate a misinterpretation of the provisions in Section 2 and Section 12 (3) of the Labour Act [Cap 28:01].

It is an undisputed fact that the Applicant was employed on the basis of fixed term contracts that were continuously renewed.  Section 2 of the Act clearly makes a distinction between a ‘fixed term employee’ and ‘casual employee’.   Section 12 (3) of the Act does not, as suggested by the Applicant, provide for the graduation of a fixed term contract into a permanent contract on the basis of continuous renewals of contract.  The section reads;

“(3) A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service , shall be deemed to be a contract without limit of time:

Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any for consecutive months.”

The provision clearly relates to casual employees.  Applicant was not a casual worker.  He was employed on the basis of fixed term contract. In any event in the recent decision emanating from the Supreme Court i.e Kundayi Magodora and Others vs Care International Zimbabwe SC 24/14 Supreme Court has also effectively dismissed the casualisation argument.  In other words an employee cannot on the basis of continuous renewals of fixed term contracts claim that he had a legitimate expectation of renewal of his contract. An employee on a contract of fixed term instead has to, by virtue of Section 12 B (3) (b) of the Act, establish firstly that he had a legitimate expectation of being re-engaged upon termination of the contract and secondly that another person was engaged to replace him.On that basis clearly the Applicant has nil prospects of success on appeal.

The application for condonation of late noting of appeal is hereby dismissed with no order as to costs.

MBIDZO MUCHADEHAMA & MAKONI, Respondent’s legal practitioners