Dili Dili v Bindura Nickel Corporation Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/746/14
HELD AT HARARE 23RD OCTOBER 2014
CASE NO
JUDGMENT NO LC/H/746/14
---------




IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/746/14

HELD AT HARARE 23RD OCTOBER 2014		CASE NO LC/APP/H/266/14

& 7TH NOVEMBER 2014

In the matter between:-

DILI DILI							Applicant

And

BINDURA NICKEL CORPORATION LTD			Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr T Chipato (ZMCWU)

For Respondent		Ms D Ndawana  (Legal Practitioner)

MAXWELL, J:

This is an application for condonation of late noting of appeal.  Applicant was employed as a Dump Truck Operator by respondent.  He was dismissed from employment on 24 March 2014 after having been found guilty of stealing diesel and selling it to a third party.  On 26 March 2014 he appealed to the Disciplinary and Grievance Committee.  On  2 April 2014 the Disciplinary and Grievance Committee confirmed the dismissal and advised the applicant of his appeal rights to this court.  In terms of Rule 15 of S.I. 59/2006 applicant had twenty-one days within which to appeal to this Court.  The application for condonation was filed on 20 June 2014, about fifty days after the internal appeal was dismissed.

Respondent aptly outlined the requirements for such an application to be successful.  In paragraphs 3 to 6 of the heads of argument, it outlined these as the need to show good cause which is through considering the following factors

the degree of non-compliance with the rules

the explanation thereof

the prospects of success on merits

the importance of the case

the degree of prejudice to the respondent

the convenience of the Court, and

the avoidance unnecessary delay.

Respondent referred to the case of Katembende v City of Harare

LC/H/98/13.

Applicant’s case was mainly that there were irregularities in the composition of the Disciplinary Committee.  No cogent reasons were given for the delay in noting the appeal.  The only explanation given was that applicant was being represented by the Zimbabwe Congress of Trade Unions which failed to advise him properly.  According to applicant, the Zimbabwe Congress of Trade Unions had engaged the respondent with the hope that the matter would be resolved easily.  They engaged in negotiations with a view to influence the employer to change his mind on the penalty meted out to applicant. When applicant realised that nothing was being achieved, he then approached the Zimbabwe Mining and Construction Workers Union for representation.  It seems to me that applicant is of the view that an affidavit obtained after his dismissal will sway the appellate court in his favour and therefore in his view he has bright prospects of success on appeal.

Applicant is mistaken in law as to seek to rely on evidence that was not placed before the Disciplinary Committee and the Disciplinary and Grievance Committee.  The affidavit introduced through the present application is improperly before the court and will be disregarded.  In any event it does not address the issue of the delay in filing the appeal in this case.

Applicant has not been candid with the court.  There is no proof on record that the Zimbabwe Congress of Trade Unions at any time represented him.  There are no specific details and dates on the alleged negotiations in which the Zimbabwe Congress of Trade Unions was allegedly involved.  As stated by ZIYAMBI JA in Paul Gary Friendship v Cargo Carriers Ltd & Anor SC 1/13, applicant must satisfy the court that there are compelling circumstances which would justify a finding in his favour.  There is no acceptable explanation justifying the indulgence of condonation and therefore I find it unnecessary to consider if there are any prospects of success  on appeal.  See Tshivhase Royal Council and Another v Tshivhase and Another 1992 (4) SA 852.

Consequently the application be and is hereby dismissed with costs.

Gill, Godlonton, Gerrans, respondent’s legal practitioners