Tanaka Mac v Powerline and Hardware Solutions

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/205/25
HARARE, 22 MAY, 2025 AND
6 JUNE 2025
CASE NO LC/H/127/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/205/25 HARARE, 22 MAY, 2025 AND

6 JUNE 2025	CASE NO LC/H/127/25

TANAKA MAC	APPLICANT

POWERLINE AND HARDWARE SOLUTIONS	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- T. Marimo, Attorney

For Respondent	- M. Mtetwa-Muzembe, Attorney

MUSARIRI, J:

On 13 February 2025 Applicant applied to this Court for the reinstatement of the abandoned and dismissed matter referenced LCH 1099/24. The application is provided for by Rule 46 of the Labour Court Rules, 2017. Respondent opposed the application.

Applicant’s founding affidavit stated that;

“3. The present application seeks reinstatement of an appeal as a result of the late

submission of the heads resulting in the appeal being struck off the roll.

The appeal was struck off on the basis that there was late submission of heads of argument. As the legal practitioner handling this case I had delegated the file to my

Junior Counsel Mr Mututu who I instructed in due time to make the heads on my behalf as a result of the pressure I had making it impossible for me to file the heads myself.

It however came to my attention that Mr Mututu did not file the heads on time, he did not take notice of the date when the Notice of Response was filed. The heads had been duly prepared before the date lapsed, but were not filed in due time as a result of the minor mishap by the Counsel Mr Mututu. See Annexture B being the heads of argument.

In view of the foregoing, it is clear that the delay in filing the heads on time was unintentional and minor. It was a mere oversight on the part of the legal practitioners.

We have strong prospects of success in the main matter, which should be considered in favor of reinstating the appeal for the following reasons;

The Designated Agent erred in finding that the Appellant was only underpaid to a tune of USD$1,905-00.

The Designated Agent erred in considering the issue of underpayments as a fact in issue when in fact the figures were not contested.

In view of the foregoing…”

On the other hand respondent’s opposition countered that,

“A. Point In Limine

The application is fatally defective as the deponent to the founding affidavit has no locus standi to depose the affidavit in the stead of the Applicant.

2. … The legal practitioner in question has not filed any affidavit to assert the facts alleged by the applicant. This therefore heresay evidence. Nothing has been put forward by the applicant to show that his default was not intentional.

… The applicant’s case has no prospects of success. The grounds of appeal relied on

by the applicant in the main matter fall far short of requirements of the rules as they are

vague and embarrassing to the extent that they do not reveal with exactness what evidence the Designated Agent did not consider. The court is left to guess.

The second ground of appeal is not only vague but confusing as it is premised on the erroneous allegation that the issue of underpayment was not challenged in the court a quo. Clearly, the Applicant’s case has no legs to stand on.

Wherefore …”

Point In Limine

Respondent took the point that the founding affidavit should have been deposed by the applicant in person. The Court agrees that in the normal course an applicant should depose the founding affidavit. It is his application and so he should get ball rolling so to speak. However in casu the situation is saved by the fact that the applicant deposed an affidavit in which he acknowledged and adopted the founding affidavit. On that basis the point in limine is hereby dismissed.

Explanation for Default

The explanation for the failure to file heads of argument timeously is unsatisfactory for the reasons highlighted by respondent. The attorney (Mr Mututu) tasked with filing the heads has not deposed an affidavit explaining what happened. No explanation was given why Mututu did not depose. The Court is left with the heresay account by his fellow attorney (Mr Mabundu). The explanation by Mabundu though plausible would sound better coming from Mututu.

Prospects of success

The impugned determination issued by the Senior Designated Agent (NECCS) on 19 September

2024 is filed of record. The appellant’s claim was summarized thus,

“The total amount to be paid to Claimant for the period March 2023 to March 2024 is USD 1, 905.00.”

The analysis of the evidence and arguments read

“For the months where payslips were not provided, there shall be no award to be made

since the period of claim is not backed by evidence.

For the months of August 2021, October 2021, November 2022 and March 2022 the claim prescribed because it is a claim beyond two years. Section 94 of the Labour Act Chapter 28:01…

According to the payslip submitted Claimant in January and February 2024, she received a monthly salary of USD160 respectively. She was employed as a sales representative which is grade 2 occupation in terms of the NEC CBA. The NEC salary rate for January and February 2024 was USD$281.00 per month. There was therefore a shortfall of $242.00 for the two months.

In March 2024 the salary went up from $281.00 to $313.00. Claimant was paid a salary of 105 in March 2024. The variance for March was therefore $208.00. The total amount in underpaid wages is $208.00 + $242.00 ˭ $450.00

Determination

Respondent is ordered to pay USD$450.00 to Tanaka Mac being salary arrears within 21 days of receiving this determination.

The claim of unlawful dismissal is hereby dismissed for lack of merit.”

The abandoned appeal set out 2 (two) grounds of appeal as follows;

“1. The Designated Agent erred in finding that the Appellant was only underpaid to the tune of USD$450-00 when there was clear evidence that she was underpaid to the tune of USD$1 905-00.

2. The Designated Agent erred in considering the issue of under-payments as a fact in issue

when in fact the figures were not contested.”

The 1st ground is couched in conclusory terms. It does not spell out the basis upon which the Designated Agent allegedly erred. In fact it wholly ignores the Agent’s rationale based on proofs and prescription. Likewise the 2nd ground does not say which figures were not contested. In the determination the Agent summarized the respondent’s submissions. Nowhere in the summary is an admission of the claims noted. Without further elaboration in the founding affidavit there is no basis to find good prospects of success of the 2nd ground.

Conclusion

The applicant failed to;

Provide a satisfactory explanation for his default; and

Show good prospects of success in the main matter.

These are the requirements for reinstatement matter as set out in

Doves v Harare SC 64/23 Per Makoni JA at Para (16)

“Dealing with an application for reinstatement of an appeal in Tel-One…. this Court stated

the following

‘Essentially in an application of this nature, the applicant must satisfy the court firstly, that he has a reasonable explanation for the delay in question and secondly that his prospects of success on appeal are good.”

In the circumstances the present application ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The application for reinstatement of appeal be and is hereby dismissed; and

Each party shall bear its own costs.

J-U-D-G-E