B. Tichiwangana v Tabatana Mining Syndicate

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THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/78/24
HARARE 29 NOVEMBER,2023 CASE NO. LC/H/675/23
AND 28 FEBRUARY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 29 NOVEMBER,2023

AND 28 FEBRUARY, 2024

In the matter between: -

JUDGMENT NO. LC/H/78/24 CASE NO. LC/H/675/23

B. Tichiwangana	Applicant

Versus

Tabatana Mining Syndicate	Respondent

Before the Honourable L. Hove, Judge:

For applicant :	Mr K. Mawoyo For respondent :	Mr C. Gohori

This is an application for condonation for the late filing of an application for review. Brief background

The applicant was employed as a security guard by the respondent. His job responsibilities

included the securing of company premises and all of the respondent’s property. Allegations of theft were raised by the respondent against the applicant. It was alleged that the applicant, acting in connivance with one Kwainonaya (a fellow employee) stole gold ore from the respondent’s property. He pleaded not guilty but was found guilty and dismissed.

The matter went through the company processes but applicant’s guilty was confirmed. He now seeks to note an application for review to the Labour Court.

Preliminary points were raised and disposed of during the proceedings at the Labour Court. The matter then progressed to the merits of the application for condonation for the late noting of an application for review.

The factors to be taken into account in applications of this nature generally include

The length of the delay

The explanation thereof

Prospects of success should the application be granted

Possible prejudice to the other side and the need not to cause unnecessary delays. The delay

The applicant argues that the delay is just one day and that such a delay is not inordinate. It is true that a delay of just one day is not inordinate.

The reasons for the delay

The delay according to the applicant was caused by internet challenges experienced by the applicant. It is in my opinion a reasonable explanation in view of the circumstances of this case.

The prospects of success

The applicant alleges that the designated agent erroneously dismissed his case on the basis that his appeal had been filed out of time when it had been within the prescribed time limits. The applicant stated that he is allowed five working days within which to file his appeal in terms of the governing regulations. He argued that he had been served with the minutes and the verdict on 28 June 2023 and noted the appeal on 05 July 2023 which was within the prescribed times. He further argues that the designated agent misdirected himself when he decided that there was need for condonation before noting the appeal.

The respondent denies that the verdict or decision had been served on the applicant on the 28th of June as alleged by the applicant. It submitted that service of the minutes was on the 28th of June, but the verdict had been served on him much earlier. It is alleged that the verdict was served electronically no proof that the applicant was indeed served electronically with the decision prior to 28 June 2023 was availed. The applicant thus managed to prove on a balance of probabilities that it was served with the verdict on 28 June 2023.

Avoidance of unnecessary delays

The Labour Court is mandated to avoid unnecessary delays but it must always consider that it must do justice between the parties. The interest of justice in casu demand that the applicant be afforded a chance to be heard before any adverse decision can be taken against him. This right to be heard was denied him when the decision was made that he had filed his appeal out of time.

In the case of Regal v Superslate (pvt) Ltd 1962 (3) SA 18 (AD) the Court stated that;

“although the power to condone a failure to comply with a procedural rule within a prescribed period will be exercised only upon sufficient and satisfactory grounds being shown, an application such as the present will receive favourable consideration because a Court is hesitant to allow a party to forfeit the enforcement of a right by reason of non-compliance with such a rule”

The Court is thus hesitant to allow a party to forfeit the enforcement of a right by reason of non-compliance with a rule.

In the case of Bishi vs Secretary for Education 1989 (2) ZLR 240 the Court held that all the facts that should be considered in an application for condonation are not to be individually decisive but are interrelated and must be weighed one against the other.

In casu, where the delay is not inordinate, a reasonable explanation for the delay has been tendered and the hesitation of the Court to allow a party to forfeit the enforcement of a right by reason of non-compliance with a rule, weighs in favour of granting this application.

Further, the Labour Court must endeavour to decide Labour matters on their merits rather than on the basis of Legal technicalities. See Dalyn Mine v Musa Banda 1999 (1) ZLR 220.

In the result, the following order is made;

Order:

The application for condonation be and is hereby granted with no order as to costs

The applicant shall file its application for review within 10 days of the date of this order.