Air Zimbabwe (Pvt) Ltd v Mercy Dare (N.O) & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 30 JANUARY 2023
JUDGMENT NO LC/H/106/24
CASE NO LC/H/741/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 30 JANUARY 2023

JUDGMENT NO LC/H/106/24 CASE NO LC/H/741/23

In the matter between:-

AIR ZIMBABWE (PVT) LTD	APPLICANT

MERCY DARE (N.O)	1st RESPONDENT

ALOIS MAKAMURE	2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant	O. Kondongwe (Legal Practitioner)

For the 1st Respondent	No appearance

For the 2nd Respondent	N. Mangoi (Legal Practitioner)

KUDYA, J:

This is an application for condonation of late filing of an application for leave to appeal. Background to the matter is that the labour court rendered a decision in a labour dispute between applicant and the respondent employee one Makamure. This decision was rendered on 11 July 2023. Applicant says it is opposed to the judgement of 11 July 2023 and intends to appeal same to the Supreme Court. It however in terms of labour court rules had to seek leave to appeal within 21 days from the date of the judgement. It is out of time to do so. To cure the defect it filed the instant application on 22 September 2023 seeking that the court condones its failure to seek leave on time. Its excuse is that there was miscommunication between it and its lawyers specifically in that the email of 13 July 2020 from its lawyers advising of the judgement did not get to it then presumably because it lost as spam mail. It hastens to mention that it only

got to know of the judgement around 17 August 2023 when it made its enquiries with its lawyers. It states further that when it got the judgement and formulated the decision to appeal its lawyer was on leave hence the instant application was only filed on 22 September 2023. In its view the delay is only a 20 day delay which it views as not being inordinate. It states also that it has a merited case on appeal if regard is had to the fact that it is of the view that Makamure should not have been paid anything over the period when it was under the COVID era and was under reconstruction which period it claims Makamure was on indefinite unpaid leave. It states also that the principle of no work no work pay applies to him and since COVID and reconstruction were events beyond its control it could not be made to pay for that period.

Makamure is opposed to the grant of condonation relief principally on the basis that the excuse given is lame and not backed by evidence. He also argues that there is no merited appeal arising out of an unknown legal principle of indefinite unpaid leave. In the result he prays that the application be dismissed with costs.

Makamure states that the calculus is 30 days not 20 days as stated by applicant. He also says applicant has not furnished the court with evidence of its submissions about the counsel’s leave etc. To that end it can not explain why the application had to be made on 22 September 2023 if indeed applicant got to know about the judgment around 17 August 2023 and if it formulated the decision then. It is settled that condonation is not for the mere asking See Chibanda v City of Harare SC-83-21. To get the indulgence an applicant must satisfy the court that it indeed has a plausible excuse for its default. From a reading of the record all that the court has been favoured with is the supposed spam e-mail and nothing more The applicant seems to be of the erroneous view that since the delay is a short delay then the court can indulge it on mere say so. Sadly that is not the position at law. (See Jansen vs Acavalos 1993 (1) ZLR 216(S).

On the merits plane the record is replete with evidence that the critical issue for determination is the question of unpaid indefinite leave. The court notes that the applicant reasons that the court called it suspension in its judgement so the Supreme Court should be called upon to determine that issue. If the position is as applicant puts its that the court misdescribed the unpaid indefinite leave in its judgement that surely would be an issue for correction of a patent error per the Labour Act See section 92 C ( Labour Act Chapter 28:01). That can not invoke the Supreme Court powers to address the misdescription. It is clear from all the papers including those before the labour officer that the issue was about unpaid indefinite leave. Such a construction is clearly out of step with the law so there can not be any debate

about no pay no work. It is clear from appellant’s own concession that it put Makamure on indefinite unpaid leave. There is no foundation for such a leave in law. Issues of losses and COVID which the applicant raises could be addressed by resort to the Labour Act. In the main therefore there is no arguable case to be taken up on appeal. To that extent grant of leave in such circumstances would be futile. On account of the court’s view that there is no good case of leave to be made out it follows that there is no basis at law to grant condonation relief. The rest of the terms of condonation about prejudice and importance of the case all become of academic importance once the critical elements of excuse and prospects have found pronouncement.

In the ultimate the court is satisfied that the application is without merit. It should therefore fail.

IT IS ORDERED THAT

Application for condonation for late noting of an application for leave to appeal being without merit it be and is hereby dismissed with costs.

Dube Manikai & Hwacha, Applicant’s Legal Practitioners

Matsikidze Attorneys at Law, 2nd Respondent’s Legal Practitioners