Xolani Dube v National Social Security Authority

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LCH142/24
HELD AT HARARE 29TH FEBRUARY 2024
CASE NO LCH60/24
AND 28 MARCH 2024
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 29TH FEBRUARY 2024
AND 28 MARCH 2024
In the matter between
XOLANI DUBE
And

JUDGMENT NO LCH142/24
CASE NO LCH60/24

APPLICANT

NATIONAL SOCIAL SECURITY AUTHORITY
RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE

FOR THE APPLICANT : MR B MATONGERA (LEAL PRACTITIONER)
FOR THE RESPONDENT: MR N. CHIDEMBO (LEGAL PRACTITIONER)

MAKAMURE J:

This is an application for condonation for late noting of appeal. It is opposed.

The applicant is a former employee of the respondent. On 7th June 2021 he was dismissed from the respondent’s employ following disciplinary proceedings for gross negligence in violation of Part V, Schedule III, Section 21.11 of the applicable code of conduct. His internal appeal to the respondent’s Appeals Committee was noted on 16th June 2021. The appeal was dismissed on 7th September 2023, more than 26 months later. He was aggrieved by that decision and therefore intends to appeal to this Court. He is however out of time and hence the present application.

Preliminary Issue


A preliminary point was raised on behalf of the respondent, with respect to the applicant having filed an answering affidavit. The submission on behalf of the respondent was that there is no provision for it in the Rules of the Labour, Court 2017. In response Mr Matongera who appeared on behalf of the applicant argued that the answering affidavit was a response to the founding affidavit. In any event, it was submitted, no prejudice was suffered by the other side as a result of the answering affidavit. The Court was urged to dismiss the preliminary point. In reply, Mr Chidembo who appeared on behalf of the respondent argued that the answering affidavit was prejudicial in that it had attached to it some documents and that this was irregular and the documents ought to be expunged from the record.

I note that indeed the applicant attached documents some of which were not attached to his founding affidavit. Such information would be prejudicial to the respondent’s case. For that reason, the preliminary point has merit. It is upheld. The answering affidavit which was filed by the applicant and documents attached to it which documents were not attached to the founding affidavit are accordingly expunged from the record.

**Merits**

It is trite that in an application of this nature the applicant is required to explain satisfactorily certain requirements. These include:

a) the degree of non-compliance;

b) the explanation for it;

c) the importance of the case; d) the prospects of success;

e) the respondent’s interest in the finality of his judgment;

f) the convenience of the court; and g) the avoidance of unnecessary delay in the administration of justice.

See Kodzwa v Secretary for Health and Anor 199(1)ZLR 313 (S). See also Viking Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited 1998 (2) ZLR 249.

In the present matter applicant in his founding affidavit stated that after getting the decision from the Appeals Committee, he approached the trade union which has always assisted him. He was made to believe that the trade union was assessing his case as well as getting the necessary authorities to procure funds and approach the appropriate legal practitioners. The trade union then advised him on 12th December 2023 that the legal practitioners could be approached. By then he was out of time.

In support of the applicant’s explanation there is an affidavit deposed to by one Richard Nyahombwe (Nyahombwe) from the National Social Security Workers’ Union (NSSAWU) which trade union the applicant belonged to. Nyahombwe confirmed what the applicant said. He went on to explain that once approached there are steps to be taken in order for the kind of assistance which the applicant needed to granted. He is the one who wrongly advised the applicant that the appeal could be noted to a labour officer anytime within two years. This wrong advice contributed to the delay in noting the appeal.

The applicant also mentioned in his founding affidavit that he had issues with how the Appeals Committee handled the appeal. One of the issues he raised was that he was given minutes of the disciplinary hearing two hours before the appeal hearing. He also stated that he had prospects of success taking into account the intended grounds of appeal. One of the issues he raises in the intended grounds of appeal is that the rules which he allegedly violated came into force after the offence had been committed.


In arguing merits of the application Mr Matongera argued that the offence occurred before the applicant was appointed as Senior Benefits Officer. On the delay Mr Matongera argued that the delay was two months and therefore not inordinate. Mr Matongera pointed out that at the time that the applicant was supposed to note the appeal, he was a self-actor and that it was paramount for him to obtain legal representation. On the prospects of success, it was argued that the applicant was wrongly convicted. It was argued further that the section with which the applicant was charged does not disclose an offence. It was submitted that the applicant had prospects of success on the merits and that the application should be granted. The following are some of the authorities cited in support of the applicant’s case: **Godfrey Mugari v Chinhoyi University of Technology SC 126/23; United Plant Hire (Pty) Ltd v Hills & Ors 1976(1) SA &17(A); Leonard Dzvairo v Kango Products SC35/17.**

On the contrary it was argued on behalf of the respondent that the applicant chose the trade union to represent him. He can therefore not distance himself from the conduct of the trade union. It was submitted that in the circumstances the delay was inordinate and there was no reasonable explanation for it. Mr Chidembo also argued that there are some typographical errors with respect to the identification of the charge that was preferred against the applicant and that the applicant cannot be absolved from liability because of typographical errors but should be absolved on the basis of innocence. Mr Chidembo further argued that the applicant was aware of what to do even before the rules he is referring to were put in writing. Mr Chidembo submitted that the argument with respect to the rules of operation coming into effect after the offence had been committed must be thrown away. Mr Chidembo also argued that the applicant was avoiding responsibility in the manner that he was arguing. The following are some of the authorities cited on behalf of the respondent: **KM Auctions (Pvt) Ltd v Samuel &Anor 2012 (1) ZLR 286 (S); Kombayi v Berkhout 1988(1) ZLR 53 (SC).**

In **Kuszaba-Dabrowski et uxor v Steel N.O.1966 RLR 60 AD** the court stated that:


...the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be, before the delay will be condoned and the converse must of course be equally true, the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding. See also Ismail Moosa Lunat v Mohammed Patel SC47/22.

In Prosper Ganda and Thirteen Others v First Mutual Life Society SC 1/05 the Supreme Court had this to say about delay attributed to the litigant’s legal practitioners:

‘However, even if it were accepted that the failure to note the appeal to the Tribunal timeously and the delay in seeking condonation of the late noting of the appeal were due to the fault of their legal practitioner, that would not assist the appellants. As I stated in Masware v Nyamunda 2001 (1) ZLR 405 (S) at 409 E-G:

“Even if the delay in applying for condonation were due to the fault or negligence of the appellant’s legal practitioners, the appellant would not escape the consequences of their lack of diligence. As STEYN CJ said in the Saloojee case supra at 141 B-E:

‘I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.”

In the present matter in considering the explanation for the delay, it cannot be said that the explanation for the delay is satisfactory. Unfortunately, and as correctly submitted on behalf of the respondent, the applicant cannot distance himself from the conduct of his chosen agent, the trade union. However, he appears to have always been keen to prosecute the appeal. The appellant has shown that if his assertion that he was wrongly charged is proved then there are prospects of success. Further under the peculiar circumstances of his case the delay cannot be said to be inordinate. Further this will also serve to bring finality to litigation. When this is weighed against the unsatisfactory explanation for the delay, it is my view that the application be granted. The application succeeds.

In view of the foregoing it is ordered that:

1. The application for condonation for late noting of appeal be and is hereby granted.

2. The applicant is granted ten (10) days from the date of this Order within which to file the appeal.

3. Each party bears its own costs.

**MASINIRE LAW CHAMBERS, APPLICANT’S LEGAL PRACTITIONERS.**

**KANTOR AND IMMERMAN, RESPONDENT’S LEGAL PRACTITIONERS.**


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