Bigini Mudzamiri v Clarson & Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/221/16
HELD AT HARARE 15 MARCH 2016
CASE NO
JUDGMENT NO LC/H/221/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/221/16

HELD AT HARARE 15 MARCH 2016				CASE NO LC/H/APP/1512/15

& 22 APRIL 2016

In the matter between:

BIGINI MUDZAMIRI					Applicant

And

CLARSON & COMPANY				Respondent

Before The Honourable F C Maxwell, Judge

For Applicant			Mr S Banda (Legal Practitioner)

For Respondent		Mr S Bhebhe (Legal Practitioner)

MAXWELL, J:

This is an application for condonation of late filing and extension of time within which to file an application for leave to appeal to the Supreme Court against a judgment of this court handed down on 18 September 2015.  In terms of Rule 36 of S.I. 59/06, an application for leave to appeal to the Supreme Court is to be made within 30 days from the date of the decision sought to be appealed against.  Applicant avers that he only became aware of the judgment on 15 December 2015.  The present application was filed on 17 December 2015.

It is trite that for an application for condonation to succeed, the court must be satisfied that

The delay involved is not inordinate.

The applicant has given a reasonable explanation for the non-compliance.

There are prospects of success on appeal; and

That there is no prejudice to the other party.

See Bishi v Secretary for Education 1989 (2) ZLR 240; Director of Civil Aviation v Hall 1990 (2) ZLR 354.

EXTENT OF THE DELAY

Applicant submitted that the application was filed 33 days after the expiry of the dies

Induciae.  That translates to 63 days after the date judgment was handed down.  Applicant was legally represented in the prior proceedings.  The matter was heard on 22 July 2015.  Four counsel to wait until December 2015 without finding out the status of the matter is unacceptable.   The supporting affidavit by counsel for applicant is silent on any efforts that were taken to check the status of the matter prior to 15 December 2015.  I therefore find the delay inordinate.

THE EXPLANATION FOR THE NON-COMPLIANCE

Applicant’s counsel submitted that at the hearing of the matter parties were

advised that the Registrar of this court would advise them on availability of judgment.  It is the practice of this court to notify the parties telephonically that judgment will be handed down on a particular day.  In addition, notice is posted on the notice board listing all the judgments that will be handed down that week.  Applicant and his counsel claim they were not aware that judgment had been handed down until three months later.  That is a clear indication that neither of them had interest in the matter.  Despite the months going by from the date of hearing, no inquiry was made with the Registrar until close to five months after the date of the hearing.  Applicant did not act like a diligent litigant.

See Elizabeth Mutizhe v Loveness Auxilia Ganda & 2 Others SC 17/09, Metro International (Pvt) Ltd v Old Mutual Property Investments Corporation (Pvt) Ltd SC 31/08 I am therefore not persuaded that the explanation given for the non-compliance is reasonable.

PROSPECTS OF SUCCESS

Applicant seeks to capitalise on an error in the judgment, which error was influenced

by applicant’s heads of argument in the prior hearing.  The arbitral award clearly states in the background that applicant finally left employment in June 2012.  That finding of the arbitrator was not appealed against.  The finding sought to be appealed against is factual.  It cannot be said to be so grossly unreasonable that no sensible person applying his mind to the facts would arrive at such a conclusion, when regard is had to the discrepancies between the applicant’s heads of argument in the prior hearing and the arbitral award.

The draft grounds of appeal mainly contain factual issues.  I am not persuaded what any questions of law arise from this court’s findings on those issues.  Applicant’s counsel submitted that this court ought to have quantified the arrear salaries that applicant is owed.  Counsel ignored the fact that one of the grounds of appeal was the fact that the issue of the arrear salaries was not part of the Terms of Reference before the arbitrator and that the arbitrator acted ultra vires the Terms of Reference.  For this court then to proceed on an issue that was not part of the Terms of Reference would be irregular.  I am therefore not persuaded that there is any prospect of success on this issue either.

Consequently I find no merit in the application and it cannot succeed.  For that reason, the following order is appropriate.

The application for condonation of late filing and extension of time within which to file an application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

J Mambara & Partners, applicant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners