Zimbabwe National Road Authority v George Chamwaura

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/148/25
HELD AT HARARE 5TH FEBRUARY 2025
CASE NO LC/H/1263/24
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/148/25 HELD AT HARARE 5TH FEBRUARY 2025	CASE NO LC/H/1263/24 AND

In the matter between

ZIMBABWE NATIONAL ROAD AUTHORITY	APPLICANT (ZINARA)

And

GEORGE CHAMWAURA	RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE, JUDGE.

FOR THE APPLICANT: MS V. C. CHIDZONGA FOR THE RESPONDENT: C.T. TINARWO

MAKAMURE J:

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

The following are some of the requirements which are considered in order for an application of this nature to succeed:

The extent of the delay

Whether there is a reasonable explanation for the delay

The prospects of success on the merits should the application be granted.

See Viking Woodwork (Private ) Limited v Blue Bells Enterprises (Private) Limited 1998 (2) ZLR 249; Bessie Maheya v Independent Africa Church SC 58-07.The list is not exhaustive.

The brief facts of this matter are that the respondent was employed by the applicant and at the material time he was a Licensing Controller. On 14th June 2023 an identified vehicle was stopped at Nyabira/Inkomo tollgate and Zimbabwe Anti -Corruption Commission (ZACC) officials were called to attend to it. When the ZACC officials arrived at the tollgate they were advised that the vehicle had escaped. That vehicle was on ZACC’s flagging list. On 21st June 2023 the respondent unflagged the vehicle. As a result of unflagging that vehicle the applicant charged the respondent with fraud . Disciplinary proceedings were conducted. He was convicted. His internal appeal was dismissed. The matter went for arbitration. The Arbitrator found that the unflagging was done by mistake. The applicant was therefore ordered to reinstate the respondent without loss of salary and benefits . The order did not have an alternative for payment of damages in lieu of reinstatement. Aggrieved by that outcome the applicant noted an appeal with this Court. That appeal was struck off the roll. It then took the applicant thirty-nine(39) days from the date of striking off for the applicant to approach this Court. That necessitated the present application.

It was argued that the applicant is a statutory body whose decision- making capacity depends on when relevant meetings are held. It was argued further that the delay in the present matter was not inordinate in view of the explanation. In other words, the position being presented on behalf of the applicant is that the applicant noted an appeal but that the appeal was struck off. Following the striking off it took 39 days from the date of the striking off for the present application to be filed. This was so, the explanation goes , because consultations and meetings within the applicant organisation had to be made before a decision to file the present application could be made.

Practice Direction 3/2013 directs that where a matter has been struck off the roll, the affected litigant has thirty (30) days to rectify the defect in question. In the present case it means that the delay, if I understood the applicant correctly, is nine (9) days. With respect to the prospects of success it was argued that the respondent unflagged a motor vehicle without the authority to do so. He therefore made a misrepresentation in that process. It was argued further that the Arbitrator erred by saying that the respondent made a mistake in unflagging the said motor vehicle without there being an explanation of the nature of the mistake. In view of this it was submitted that there are bright prospects of success.

It was also argued that the Arbitrator went on a frolic of their own when they made a finding that there was insufficient evidence and yet this was not part of the terms of reference. It was argued further that the Arbitrator erred in making an order for reinstatement without ordering the alternative of damages. With respect to the absence of an alternative order for payment of damages, it is trite that where an order for reinstatement has been made, there must be an alternative for damages. The applicant raises this important issue in the written heads of argument. However soon after addressing this point, the applicant goes on to state in paragraphs 25.1 and 25.2 of its heads of argument that it cannot work with the respondent and therefore “reinstatement is an impossibility.” The applicant further suggests that “ an inquiry has to be made on whether or not an employment relationship is still viable.” This sounds like a contradiction. In one breath it is aggrieved that the Arbitrator erred by not making an alternative order for damages in lieu of reinstatement and in the next breath it says it can no longer work with the respondent. What is important however is that the absence of an option to pay damages in the arbitral award needs to be considered, but not in the present application . S89 (2)( c )(iii) of the Labour Act Chapter 28:01 provides as follows(the relevant portion): ‘(iii) reinstatement or employment in a job:

Provided that—

any such determination shall specify an amount of damages to be awarded to the

employee concerned as an alternative to his reinstatement or employment;

in deciding whether to award damages or reinstatement or employment, onus is on the

employer to prove that the employment relationship is no longer tenable, …’(My underlining)

The section does not provide for the discretion to make an award without the option of damages. It makes it mandatory for an alternative order for payment of damages to be made. An inquiry would have to be made to consider whether or not reinstatement is viable. This speaks to prospects of success should the application be granted.

The applicant referred the Court to case authorities which include Reserve Bank of Zimbabwe v Mufudzi & Others SC29/18 ; Godfrey Mugariri v Chinhoyi University of Technology SC126/23; Forestry Commission v Moyo 1997(1) ZLR 254 (S) in support of its case .

The respondent argued that there was no reasonable explanation for the delay. It was also argued for and on behalf of the respondent that the respondent appreciates that the applicant is a statutory body but the delay in seeking condonation was inordinate given that there is technology. It was further argued for and on behalf of the respondent that the draft notice of appeal is fatally defective. Further the there are no prospects of success. Mr Tinarwo who appeared on behalf of the respondent made reference to the merits in trying to show that there are no prospects of success.

The cases cited in support of the respondent’s case include Lunat v Patel & Anor SC 142/21;Kodzwa v Secretary for Health & Anor 1999(1)ZLR 313(S);Nyarumbu v SANDVIK Mining Construction Zimbabwe (Pvt) Ltd SC 31/13.

In Reserve Bank of Zimbabwe v T.Lloyd Mufudzi and 3Others (above) an application for condonation was dismissed by the Labour Court . A period in excess of eight months was found to be inordinate. The explanation for the delay before the Labour Court was said to be a failure by the Registrar to notify the appellant that judgment had been delivered. The Labour Court found that explanation to be unreasonable and dismissed the application. On appeal the Supreme Court stated that condonation is an indulgence granted at the discretion of the court and not a right obtainable on request. The appeal was dismissed.

In the present case the delay was a period of nine days. The explanation was that the applicant being a statutory body, needed to do the necessary consultations before a decision to make the application was made. My view is that once litigation has commenced , organisations should comply with the time frames set out in the rules. They are juristic persons. The same rules that apply to natural persons apply to them.

In Ngirazi v Saurosi & Anor HB 84-18 the court stated that:

‘It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success on appeal must be really great before the court can exercise its discretion to condone the non-compliance…the more satisfactory the explanation for the delay , so much greater must the prospects of success of the appeal be…’

The factors are not considered individually, they are interrelated and must be weighed one against the other. In the present case the respondent’s position by delving into merits of the matter in trying to justify the absence of prospects of success actually showed the need for merits of the case to be heard.

I find that the delay of 9days was not inordinate. The explanation for the delay was rather weak but there appear to be prospects of success. After weighing the factors to be considered against each other, I find that there is merit in the application. The application succeeds.

In the result it is ordered that:

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

The applicant be and is hereby granted ten (10)days from the date of this order within which to note the appeal.

Each party bears its own costs.

MOYO &JERA LEGAL PRACTITIONERS, APPLICANT’S LEGAL PRACTITIONERS. ZIMUDZI &ASSOCIATES , RESPONDENT’S LEGAL PRACTITIONERS