Douglas Chinawa v Zimnat Life Assurance Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/217/2023
HARARE, 12 JULY 2023 & 18 JULY 2023
CASE NO LC/H/244/23
In the matter between:-
DOUGLAS CHINAWA
APPLICANT
ZIMNAT LIFE ASSURANCE LIMITED
RESPONDENT
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE  JUDGMENT NO LC/H/217/2023

HARARE, 12 JULY 2023 & 18 JULY 2023  CASE NO LC/H/244/23

In the matter between:-

DOUGLAS CHINAWA  APPLICANT

ZIMNAT LIFE ASSURANCE LIMITED  RESPONDENT

Before the Honourable Kudya J

For the Applicant  T.H. Gunje (Legal Practitioner)

For the Respondent  T. Chagudumba (Legal Practitioner)

KUDYA, J:

This is an application for condonation of late filing of an application for leave to appeal to the Supreme Court. Applicant intends to appeal to the Supreme Court against part of the Labour Court decision which quantified what was due to the estate of the late Dikinya who was unlawfully dismissed by ZIMNAT on allegations of misconduct. Applicant is however out of time by 14 days to make the leave application hence the instant condonation application. The condonation application is opposed by ZIMNAT.

It is settled that condonation is not for the mere asking but that one has to profer a plausible excuse for the default and also show that he has prospects on the subject matter of the condonation application. See Jansen v Acavolas 1993(1) ZLR 216. In the matter at hand the applicant’s excuse is that the delay was occasioned by the delays in communication between the instructing counsel, the advocate and the widow of the deceased employee. He also maintains that he has a good case for leave to appeal if regard is had to the fact that the court ordered part of the quantification in United States Dollars yet ordered the other part in Zimbabwe dollars a currency with minimal value. It is his view that he should be allowed to proceed to the Supreme Court for it to determine whether it was proper for the court to quantify the damages as it did. In the result he contends that he has a plausible case that warrants the grant of condonation relief.

In response ZIMNAT maintains that the advocate and the instructing counsel are both legal fundis who both appreciate the importance of adhering to time lines set by the court rules for the proper administration of justice. It reasons that the excuse that there was communication between the widow and the counsel is not well founded if regard is had to the fact that it is the instructing counsel and the advocate who appreciated how the matter should have proceeded. The court notes that whilst 14 days cannot be adjudged inordinate the excuse given is very porous. A respondent rightly noted it is the legal minds who were seized with matter who ought to have appreciated the time lines and the need to observe the same. They however fell short of what was expected of them.

As regards the merits the judgement giving rise to the leave to appeal application shows clearly that the award of US dollars on the school fees component was informed by the type of currency that had been expended by the deceased employee. It is for that reason that the court awarded the US Dollars. As regards the damages component the record is replete with evidence that the salary was pegged in Zimbabwe dollars. It is equally for that same reason that the court made the award in Zimbabwe dollars. With the above background the court is not persuaded that there is any merited appeal based on the argument that it was irregular for the court to order the payment of 2 different currencies in the matter. The court is therefore satisfied that there is no cogent basis to want to approach the Supreme Court where facts of the case are as clear as has been explained above. The interests of justice dictate that there be finality to litigation in this matter. See Stumbles & Row v Stephens 1989 (1) ZLR 172. The matter has spanned to close to 2 decades and should at least have closure. For the above reasons the court is satisfied that no good case for condonation has been made out. The application should consequently fail.

IT IS ORDERED THAT

Application for condonation for the late noting of an application for leave to appeal being without merit it be and is hereby dismissed. Each party to bear own costs.

Chinawa Law Chambers, Applicant’s Legal Practitioner

Atherstone and Cook, Respondent’s Legal Practitioners
--- END OCR FALLBACK ---