Blessing Nyangumbe v Zimbabwe German Graphite Mines (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/793/2016
HARARE 13 OCTOBER 2016 &
CASE NO LC/H/APP/724/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/793/2016

HARARE 13 OCTOBER 2016 &				CASE NO LC/H/APP/724/2016

16 DECEMBER 2016

In the matter between

BLESSING NYANGUMBE						 APPLICANT

Versus

ZIMBABWE GERMAN GRAPHITE				RESPONDENT

MINES (PVT) LTD

Before the Honourable Maxwell J

For the Applicant	L Mundieta (Legal Practitioner)

For the Respondent     J R Tsivama (Legal Practitioner)

MAXWELL J:

This is an application for condonation of late filing of an appeal against the judgment of the respondent’s appeal hearing authority on 28 January 2014.

The applicant was employed by the respondent as a Laboratory Technician. On 21 December 2013 he was arraigned before a disciplinary authority facing allegations of fraud. He was found guilty and was consequently dismissed from employment. The applicant appealed against the decision to dismiss him. The appeal was heard on 28 January 2014. The penalty of dismissal was upheld on appeal.

Instead of appealing to this court as provided for in the Mining Industry Code of Conduct, the applicant approached a labour officer. The matter went through the conciliation and arbitration process. On 16 March 2015 the arbitrator issued an award. The respondent having appealed against the arbitral award, this court ruled that the arbitrator had no jurisdiction and set aside the award on 19 February 2016. On 21 July 2016 the applicant instituted the present application.

The applicant only seeks to explain the delays between 19 February 2016 and 21 July 2016. He gives the impression that the period from 28 January 2014 to 19 February 2016 is excusable as he had wrongly referred the matter to a labour officer. For the period 19 February 2016 to 21 July 2016 he alleges that he was out of Harare and his mobile phone was unreachable resulting in his representatives failing to conduct him. On the prospects of success he alleges that he has prospects as the appeals hearing authority applied the wrong standard of proof. He alleges that proof beyond any reasonable doubt should have been applied as required at law. The applicant contends that the balance of convenience favours the granting of the application as the respondent is not likely to be inconvenienced by the application.

The respondent filed a notice of opposition on 2 August 2016. The affidavit states that the applicant took a gamble by approaching a labour officer with a complaint of unfair labour practice instead of appealing to this court. It further states that the fact that an arbitrator or a conciliator has no place in disciplinary proceedings instituted in terms of a registered code of conduct was made before both the conciliator and arbitrator and also on 23 April 2015 when an appeal was lodged in this court. The opposing affidavit further states that the applicant was aware that judgment had been reserved in the appeal in February 2016 and therefore was expected to check with his representatives once in a while. The respondent contends that the explanation for the delay is woefully inadequate, unacceptable and unreasonable. It further contends that the proposed appeal is completely devoid of merit and has no prospects of success.

At the hearing of the matter counsel for the applicant raised two preliminary issues. The first is that the response to the application is defective and invalid as the appropriate form was not used. The court was of the view that the non-compliance was not fatal. The notice of opposition was detailed enough to provide all the information and facts the respondent relied on in opposing the application. Without suggesting that legal practitioners can willy nilly discard of strict compliance with the rules of this court, I dismissed this point as no prejudice was alleged.

The second point raised was that the deponent to the opposing affidavit had not proved that he was authorised to depose to the affidavit through company resolution or other authority. Counsel made reference to the case of Mall (Cape) (Pty) Ltd v Merino Ko-operasie BPK 1957 (2) SA 347 in support of the preliminary point. Counsel also referred to the case of Total Zimbabwe (Pvt) Ltd v Power Coach Express (Pvt) Ltd HH 64/09. Counsel for the respondent pointed out that the authority of the deponent had not been put in issue prior to the hearing therefore the averment in the first paragraph of the affidavit that the deponent had been duly authorised should be taken as sufficient. Again this preliminary issue did not find favour before me. I associate with the sentiments of GOWORA J (as she then was) in Total Zimbabwe case (supra) that the production of a resolution is required in those circumstances where evidence has been produced that the deponent lacks authority for the litigation.

Having dismissed the preliminary issues the parties addressed the merits of the application. An application for condonation is an application for excusing the negligence of the offending party. Condonation should not be granted for the mere asking. The applicant must satisfy the court that there is good cause to excuse the negligence and grant the indulgence. See Chimpondah & Anor v Muvami 2007 (2) ZLR 326. The factors generally taken into account when considering an application for condonation are well established. They include:

The length of the delay

The explanation for the delay

The merits of the application

Prejudice to the interests of justice

I am of the view that a consideration of the reasons for the delay and the prospects of success will dispose of the application.

Reasons for the delay

Counsel for the applicant did not proffer any authority for the position that the period in which the applicant pursued a wrong process should be disregarded. His heads of argument relate to the period after this court’s judgment of 19 February 2016. As stated for the respondent applicant did not appeal against the decision of the appeal hearing authority when he approached the labour officer. He filed a complaint of unfair labour practice. The decision to appeal was therefore an afterthought. No reasonable explanation has been given for not appealing in time.

In any event, the trade union representatives were not responsible for the entire period up to 19 February 2016. When the respondent appealed against the arbitral award, there is an indication that the applicant was then represented by legal practitioners. No explanation has been given as to why the legal practitioners did not advise their client of the correct procedure. It is trite that a litigant cannot escape the result of his attorney’s lack of diligence. See Saloojee & Anor v Minister of Community Development 1952 (2) SA 135. I therefore find that no reasonable explanation has been given from the period between 28 January 2014 and 19 February 2016.

The applicant’s counsel explained the delay for the period after 19 February 2016. The reason given is that the applicant was in the rural areas where there was problems of network such that the mobile phone was unreachable. It is contended that the applicant only visited his legal practitioners on 11 July 2016. As stated for the respondent, the applicant was not diligent to follow up on the judgment that was reserved on 10 February 2016. As stated in the case of Mutizhe v Ganda & Ors 2009 (1) ZLR 241, the applicant and his legal practitioners were under the duty to make regular inquiries with the Registrar as to when judgment would be given. He cannot be excused for going away and not checking until July when the judgment had been reserved in early February, 2016. I therefore find that the reason given for the delay is not acceptable.

Prospects of Success

In paragraph 11.4 of the applicant’s heads of argument it is stated that he has strong prospects of success considering the fact that his matter was determined in such a fashion that portrays gross bias, irregularities and inequity. In terms of section 92 E of the Labour Act as amended bias and irregularities are grounds for review. It therefore follows that the applicant cannot have prospects of success on appeal where he intends to proceed on appeal on grounds for review.

The applicant indicates that the intended appeal criticises the Appeals Hearing Authority for dismissing him without sufficiently proving the essential elements of fraud as provided for at law. The applicant’s heads of argument make reference to authorities that deal with criminal matters. Counsel for the applicant did not address whether or not the Mining Industry Code of Conduct defines fraud. Neither did he comment on the submission in the respondent’s heads of argument in paragraph 8 that:

“… all that would be required of this Honourable Court is to determine whether such facts constitute fraud as envisaged by the Mining Industry Code of Conduct.” (underlining for emphasis)

I find that no proper basis has been laid for the criticism against the appeals hearing authority.

The applicant also indicates that he intends to appeal against the decision of the appeals hearing authority to dismiss him without considering other options. The applicant made reference to section 12B of the Labour Act [Chapter 28:01] where it is stated that the adjudicating authority should consider whether there is any mitigation justifying action other than dismissal. In his view the misconduct he was charged and convicted of was too trivial, minor and isolated and did not go to the root of the contract of employment. In response the respondent stated that the Code of Conduct provides for dismissal for fraud and there is nothing to suggest that the disciplinary authority had misused or abused its discretion. Such an averment was neither made nor proved therefore the appeals hearing authority cannot be faulted for upholding the dismissal of the applicant. There is therefore no prospect of success on that aspect.

The applicant also indicates that he intends to challenge the decision by the appeals hearing authority to dismiss him unreasonably and improperly without justifying the fairness of its determination. As stated above, the submission by the respondent that the code of conduct provides for a penalty of dismissal for fraud was not challenged. In any event, it is trite that the penalty to be meted in a particular case is at the discretion of the employer. See Malimanji v Cabs 2007 (2) ZLR 77. The appeal court will not interfere with the exercise of discretion unless it can be proved that the discretion was exercised unreasonably. I am not persuaded that the circumstances of this case warrant any interference with the employer’s discretion. There is therefore no prospect of success on that basis.

I am not persuaded that a case has been made for this court to excuse the negligence of the applicant in not complying with the set requirements for noting an appeal. The following order is therefore appropriate:

The application for condonation of late noting of appeal be and is hereby dismissed with costs for lack of merit.

Zvinavakobvu Law Chambers, applicant’s legal practitioners

Sawyr & Mkushi, respondent’s legal practitioners