Andrew Mundangepfupfu v The Church of the Province of Central Africa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/645/2014
HARARE, 12 & 26 SEPTEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/645/2014

HARARE, 12 & 26 SEPTEMBER 2014	               CASE NO. LC/H/APP/163/14

XREF. LC/H/267/13 (REV)

In the matter between:-

ANDREW MUNDANGEPFUPFU					Applicant

And

THE CHURCH OF THE PROVINCE OF				Respondent

CENTRAL AFRICA

Before Honourable E. Muchawa, Judge

For Applicant		-	Mr. M.T. Maja (Legal Practitioner)

For Respondent		-	Ms R.T.L. Matsika (Legal Practitioner)

MUCHAWA, J:

This is an application for condonation of the late noting of an application for leave to appeal.

The judgment in respect of which the application is made was received by applicant on the 4th of December 2013.  The judgment struck off the roll, with no order as to costs; an application for substitution of respondent who was then cited as “Anglican Church of St Mary’s and All Saints” with “Church of the Province of Central Africa (CPCA).

In this application, applicant has proceeded to mero motu substitute the respondent as he had initially applied for.

A bit of background information to this dispute is important.  In August 2004, applicant was employed by respondent.  Respondent is a church falling under the Anglican Diocese of Harare which is a part of the Church of the Province of Central Africa.  The Anglican Cathedral of St Mary and All Saints fall under CPCA.  The cathedral is a place of worship, it is a matter of common public knowledge that sometime in 2007, a Dr Kunonga broke away from the CPCA and formed what he called the Anglican Church of the Province of Zimbabwe.  It seems that applicant proceeded to be employed by the new church under Dr Kunonga as the suspension giving rise to these proceedings was written on the 30TH April 2009 on the letterhead of The Anglican Church of The Province of Zimbabwe.

The application for condonation of the late noting of an application for leave to appeal was filed on 27 May 2014.  Prior to this, applicant as a self actor had made an application for reinstatement of his matter which was dismissed.  Applicant’s delay in filing the leave to appeal is a period of four months.

I was referred to the case of Muroiwa v Delta Operations Ltd & Anor 2002 (2) ZLR 30 (5) for the factors to consider in an application such as this one.  These are

The duration of the delay.

The explanation for the delay.

The appellant’s prospects of success on the merits.

Respondent added this additional factor for consideration.

The possible prejudice to the other party should the application be granted.  (See Chimpondah & Anor v Murami 2007 (2) ZLR 326 (H).

I proceed to consider these factors below

Length of delay

As already stated, the delay in casu is around four months.  Applicant referred me to the case of Mambo v National Railways of Zimbabwe (NRZ) and Anor 2003 (1) ZLR 347 (H) for the assertion that where the delay exceeds six months, then the court should refuse to grant leave.

Respondent argues that such a delay is inordinate especially as applicant was legally represented at the hearing and should therefore have been advised of the time limits.

I am persuaded by the Mambo v 	NRZ Supra matter and find that the delay is not inordinate.

Explanation for the delay

Applicant explains that he has always been dissatisfied with the judgment of the court.  He alleges that he ran out of funds after the initial judgment of this court and was unrepresented when he made an application for reinstatement of his matter.  He learnt later that he had applied a wrong procedure but he never sat on his laurels and did nothing.  It was only in May 2014 that applicant was in funds and was able to instruct his legal practitioners hence the present application.

Respondent dismisses applicant’s explanation as unreasonable as he is said not to have alleged that he was not represented at time of receiving the judgment.  It is assumed that he had legal represent ation, and therefore should have been advised of the consequences of a delay in challenging the judgment.

I find that on its own, applicant’s explanation for the delay is a reasonable explanation for the delay.  However such an explanation is one that any party can advance.  The deciding factor is the prospects of success on appeal.

Prospects of success on the merits

Applicant argues that he has good prospects of success as the application for substitution should not have been refused.  It is further argued that the representatives of the Anglican Cathedral of St Mary and All Saints were well aware that the real respondent was the Church of the Province of Central Africa and the substitution would have been purely a formality.  Reference was made to the case of Zimbank and Anor v Efficient Security (Pvt) Ltd & Anor 2001 (2) ZLR 55 (H).

It is alleged that no reasons were given for the refusal to grant the application for substitution.

Respondent counter argues that there was no misdirection in the reasoning of the court which reached its decision after considering relevant Supreme Court decisions such as Zimbabwe Bata Shoe Company Ltd v Bata Company Middle Management SC 13/2012 and CT Bolts Private Limited v Workers Committee SC 16/2012 and from the High Court Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (HC).

Further reference is also made to the case of JDM Agro Consult and Marketing v Editor, Herald and Another 2007 (2) ZLR 71 (H).  All the cases have held that where a natural or legal persona is not cited, the summons is a nullity which is incapable of amendment.  Applicant’s approach that the substitution is a mere formality is said to be wrong as he misses the point that his pleadings are so fatally defective that they are incapable of amendment.

The Zimbank and Anor v Efficient Security (Pvt Ltd & Anor Supra case referred to by applicant is distinguished as it was merely  a substitution of the legal persona, from one existing persona to another.

I find that in this respect applicant has no prospects of success.  The law is clear.  The application that was before me was not one of substitution, but one of creation.  Applicant concedes that the initial applicant is a place of worship and is not a legal persona.  This means therefore that there was no legal or natural person answering to the names written in the appeal as the “Anglican Cathedral of St Mary and All Saints.”  The appeal was therefore null and void ab initio.  There was therefore nothing to be substituted by the respondent.  I could not by the process of substitution revive such an action to the date of its issue.

On a second hurdle I find again that applicant has no prospects of success on appeal.  Respondent submitted that applicant seeks to join it in proceedings in which it is clearly not accountable for the conduct which applicant complains of.  Applicant’s appeal stems from a suspension on the 30th of April 2009.  A perusal of the record shows that such suspension was effected by the Anglican Church of the Province of Zimbabwe, as do other correspondence between such parties.

I agree with respondent that the perpetrator of the alleged unlawful labour practice was the Anglican Church of the Province of Zimbabwe which is a separate legal entity from respondent.  (See The Church of the Province of Central Africa v The Diocese & Trustees for the Diocese of Harare SC 48/2012 and Odendaal v Inn on the Ruparara 2006 (1) ZLR 1 (H).

Applicant therefore has no prospects of success.

Prejudice to other party

Applicant argues that if this application is granted there will be no unnecessary delays in the administration of justice, nor any inconvenience to the court or other party.  This is said to be an important case to the applicant as he lost his job.

Respondent who was not cited from the commencement of proceedings before the Labour Officer and who has been brought to court at applicant’s own substitution of parties claims that it has been forced to expend money and time on a claim which should not have been filed against it.  As applicant is aware that its claim is founded on an action by a different entity from respondent, the persistence in pursuing the respondent it said to depict an unreasonable attitude which should be penalised by an award of costs on a higher scale.  I was referred to the cases of Mudzimu v Municipality of Chinhoyi and Anor 1996 (1) ZLR 12 (1+) at 17C and Borrowdale Country Club v Murandu 1987 (2) ZLR 77 (HC) for in support of this submission.  I am persuaded by the Chioza v Sawyer 1997 (2) ZLR 178 (SC) case in support of costs on a higher scale.  It states:

“Nor do I think we can resist the plea of costs on the highest scale.  The appeal was always doomed to failure and litigants, although they have a right to appeal, should not be permitted to force their opponents to incur costs when the appeal is hopeless.”

Accordingly the application for condonation of the late noting of an application for leave to appeal is not merited.  I hereby dismiss it with costs on the higher scale.

KAWONDE AND COMPANY, Applicant’s legal practitioners

WINTERTONS, Respondent’s legal practitioners