Charles Kazembe v Highveld Primary School Trust

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/07/2021
HARARE, 12 NOVEMBER, 2021
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IN THE LABOUR COURT OF ZIMBABWE 	        JUDGMENT NO. LC/H/07/2021

HARARE, 12 NOVEMBER, 2021  		         CASENO.LC/H/APP/17/2021

AND  14 JANUARY, 2022

In the matter between:

CHARLES KAZEMBE		                                              APPELLANT

Versus

HIGHVELD PRIMARY SCHOOL TRUST                                 RESPONDENT

Before The Honourable Kachambwa J

For the Appellant			:  G. Tavenhave

For the 1st Respondent	          :  T.G. Mukwindidza

KACHAMBWA J:

The Application

1.	This is an application for condonation for late noting of appeal and for extensive      of time within which to make the appeal if condonation is granted.

The law on Condonation

2.	Both parties captured the law on such an application adequately.   Applications are granted on a discretion properly exercised on consideration, cumulatively, of the following aspects –

1.  extent of the delay

2.  explanation for the delay

3.  importance of the case jurisprudentially;

4   prejudice to the other party;

5.  convenience in the administration of justice

6.  prospects of success; and

7.  need for finality in litigation.

3.	The parties also provided many precedent cases on the subject.  This is not    surprising as applications for condonation are the order of the day and has been so for a long time as can be seen from the cases noted.

The Arguments

4.	The applicant delayed by three months.  The cause was said to be the fact that he had referred his case to a labour officer who took time to decline jurisdiction.  If he had appealed to the Labour Court then he would have been in time.  The labour Officer declined jurisdiction in line with the new exposition of the law.  Hitherto the matter would have been heard by the labour officer.  The delay of three months was argued not to be inordinate in the circumstances.  The respondent’s contention was that the reference to the labour officer was due to ignorance of the law which is no defence.  It also said that the delay was inordinate.  The ignorance of the lawyer should visit the client.

5.	The applicant also said that the covid virus pandemic also contributed to the delay in the sense that some offices including the labour offices were closed on some days hence the delay in the decisions to decline jurisdiction.  In other words had the labour officer declined earlier the delay period would have been shorter.  To this the respondent’s position was that blame lies with the applicant and his lawyers for not knowing the law of which ignorance of the law is no excuse.

6.	The applicant said that the case was important to him because the employment was his source of living.  To this the respondent said that that is ordinary as it is invariably the case for everyone who loses employment.  It follows the loss.  What was required is an important legal point that would be established by the case.

7.	The applicant did not see any prejudice to the respondent if the application is granted.  For the respondent, there was prejudice in the administration of the school as provision had to be made for the case.  Further the publicity or knowledge by the public on the fact that there was litigation was negative to the image of the school.  Therefore there was need to curtail the litigation.  Finality is important.

8.	The applicant considered his prospects of success to be high arguing that there was no evidence to convict and if there was the penalty of dismissal was too harsh in the circumstances.  The respondent was of the opposed view.  It saw the applicant as seeking to re-argue the facts which would be improper as an appeal his to be on points of law.

9.	None of the parties addressed the issue of convenience to the courts or administration of justice as such.  Indeed this is an aspect that is not usually dealt with by parties in this type of application.  It is regularly overlooked and yet it is an important aspect.  A lot of the court’s time is being taken to hear these applications most of which would be avoidable by an exercise of due diligence.

Analysis

10.	The real reason for the delay is the ignorance of the law by the applicant and his lawyers.  The procedure that he adopted had been declared to be wrong in June and here they are in November still in the dark.  The point has to be taken that the route they had taken had been in place for many many years. Even today some litigants are not aware of the change.  The applicant may not blame anyone else but himself and his lawyer for being unaware of the change in the law.  None but themselves to blame.  There was a new interpretation of the law.  The delay of three months is not all that inordinate though.  The litigation process was indeed being affected by the covid pandemic.

11.	The respondent may suffer some prejudice if clients don’t want to be associated with a school that is involved in litigation with it’s employees but that seems remote.  The issue of budgetary provisions for the case is also a remote prejudice.  No jurisprudential importance of the case was argued and none seems to present itself.

12.	The prospects of success on appeal is a debatable matter.  It cannot be said that this is a completely hopeless case.  It has now been stated that there is no need to say that there was so serious a misdirection on the facts that no person presented with the same facts would have come to such a decision.  This position could be said in different ways.  An applicant merely has to show an arguable case.  It must not be a hopeless case.  Applicant’s is not hopeless on the face of it.

Dispositions

13.	The court’s duty is indeed very onerous.  That is why despite the court’s plea that applications for condonation have become a growth industry the cases keep rising.  The power to grant relief has been described in Kodzwa v Secretary of Health and Anor 1991 (1) ZLR 313 (S) by the late Sandura JA  as follows –

“The court’s power to grant relief should not be examined arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the Applicant.  In the determination of whether a sufficient case has been shown the basic principle is that the court has a discretion to be exercised judicially upon consideration of all the facts and in essence it is a matter of fairness to both sides, in which the court will endeavor to reach a conclusion that will be the best interests of justice.”

14.	Now, with that in mind it appears to this court that the best interests of justice would be served by allowing the application for condonation.  The major cause of the delay is understandable in view of the long time that all the courts and lawyers have allowed the wrong procedure to be followed.  But applicant bears a measure of blame and for that no costs would be awarded in his favour. In the event that the applicant does not succeed in the eventual litigation an order of costs should fairly compensate the respondent.  For now the interests of justice is best served by allowing the application. It is therefore accordingly ordered as follows

1.	the application for condonation of late noting of appeal and extension of time within which to appeal be and is hereby granted.

2.	the applicant shall file his notice of appeal within ten (10) days of this order.

3.	each party to bear it’s costs.