Wellington Madade v National Oil Infrastructure Company of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/186/24
HARARE
25 JANUARY 2024
23 APRIL
2024
CASE NO LC/H/994/23
WELLINGTON MADADE
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 25 JANUARY 2024 23 APRIL
2024

JUDGMENT NO LC/H/186/24
CASE NO LC/H/994/23

WELLINGTON MADADE
APPLICANT

NATIONAL OIL INFRASTRUCTURE
COMPANY OF ZIMBABWE
RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant - Mr E. Mubaiwa, Attorney
For Respondent - Mr A.K. Maguchu, Attorney

MUSARIRI, J:

On the 18 September 2023 this Court issued a judgement which dismissed applicant’s appeal against his dismissal from employment by respondent. A party wishing to appeal the judgement is guided by the Labour Court Rules 2017 whose Rule 43 provides that

“43(1) An application in terms of section 92F (2) of the Act seeking leave to appeal from any decision of the Court shall be made to the Judge of the Court who made the decision or in his or her absence, from any other Judge, within twenty-one days from the date of that decision.”

Applicant wishes to appeal the Court’s decision to the Supreme Court of Zimbabwe. It is common cause that he was obliged to do so on or by 17 October 2023. He failed to do so.

On the 1st December 2023 he filed the present composite application for condonation and leave to appeal. He is 1 ½ months out of time.

Respondent raised points in limine. The key point is covered in its heads of argument thus,

“28 The Labour Court rules do not provide for applications for condonation for late filing of an application for leave to appeal. The rules are specific to applications for condonation for late filing of appeal (to the Labour Court) or review as in Rule 22. 29. In as far as leave to appeal is concerned, rule 43 does not empower condonation applications to be brought before the court.

30 It would therefore be outside the purview of the Jurisdiction of the Court to entertain the present application for condonation. That being the case, the application for leave to appeal would fall away as the applicant is improperly before the court. The matter can only be struck off the roll with costs.”

Per contra applicant argued in his heads of argument that,

“3.6 The second point taken is that the application has been brought in terms of the wrong rule...
(a) The first principle is that pleadings are not considered based on their heading but on their content. A misdescription in the heading of the pleading does not invalidate it if its content is consistent with the rules...
(b) The second principle is that it really does not matter what a party calls its application or that there is some confusion in how it is set out or described. The court ultimately looks to the pleaded facts in order to ascertain the character and nature of the application – “

The Court is persuaded by respondent’s argument. The condonation nature of the application is clear. The real point is that the Rules of this Court do not provide for such an application. The rule which references condonation, Rule 22, deals with appeals and reviews to the Labour Court. It does not deal with appeals to the Supreme Court. Such appeals are covered by Rule 43 set out above. The rule (43) only allows applications for leave to appeal to the Supreme Court within 21 days but does not provide for condonation of belated applications. On that basis the application in casu is improperly before the Court. This conclusion is consonant with the dicta in the case of,

NRZ v ZRAU 2005(1) ZLR 34(S)

Per Ziyambi JAa t 347A
“Thus, before an application can be considered by the Labour Court, it must be satisfied that such an application is an application “in terms of this (Labour) Act or any other enactment. Thus, necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring:…”

It is therefore unnecessary to deal with and determine the other points raised in the application.


Wherefore it is ordered that

1. The application for condonation and leave to appeal to the Supreme Court, be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E


LC/H//2024
LC/H/994/23
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