Dumisani Nyathi v The Republic of South Africa

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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 3RD
JUDGMENT NO. LC/H/26/25
CASE NO LC/H/759/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 3RD OCTOBER 2024 AND 23 JANUARY 2025

In the matter between

JUDGMENT NO. LC/H/26/25

CASE NO LC/H/759/24

DUMISANI NYATHI	APPLICANT

And

THE REBUBLIC OF SOUTH AFRCA	RESPONDENT

BEFORE THE HONOURABLE E. MAKAMURE, JUDGE .

FOR THE APPLICANT: T. MARIMO FOR THE RESPONDENT:M. MBUYISA MAKAMURE J:

This is an application for condonation for late noting of an application for review . It is opposed.

It is trite that in order for an application of this nature to succeed the applicant must meet certain requirements which include the following:

The degree of non-compliance ;

The explanation therefor;

The prospects of success on the merits should the application succeed;

The importance of the case;

The party’s interest in the finality of the judgment;

The convenience to the court and

The avoidance of unnecessary delays.

Bessie Maheya v Independent Africa Church SC58-07. See also Kombayi v Berkout 1988(1)ZLR 53(SC); Doves Funeral Assurance (Private) Limited v Harare Motorway (Private) Limited & Ors SC64/23; Forestry Commission v Moyo 1997(1) ZLR 254 (S).

The background of this matter is that the applicant was dismissed from the respondent’s employ in 2017. His internal appeal failed. He noted an appeal (case No.LC/H/ 134/19; Order No. LC/H/ORD/ 225/2022) with this Court which was struck off roll by consent on 30th March 2022 .He filed an application ( Case No LC/H/483/22 ; Judgment No LC/H/ 184/2023)with this Court for leave to lead further evidence which application was struck off the roll as such application is not provided for in the Rules of the Labour Court ,2017 .He

has now filed the present application.

The applicant has always been legally represented. The delay in filing the present application is five (5) years. There is no explanation why the applicant did not file the application for review in 2019 at the time that he noted an appeal. Accepting that he was concerned with the question of the record of proceedings, he could at the very least have made the application in 2023 after this Court had struck off his application referred to above . There does not appear to be any reasonable explanation as to why he did not do so. As correctly submitted on behalf of the respondent , the extend of the delay is inordinate. In Chibanda & Ors v City of Harare SC 83/21 which is one of the authorities relied on by the respondent , the Supreme Court held that a delay of three and half years was inordinate. If the applicant could approach the court seeking leave to lead further evidence, he could during that same period have made the application for review or the present application. In his founding affidavit he does not explain why he did not do so. He appears to have been dissatisfied with the judgment of this Court LC/H 483/22. He however did not appeal against that judgment, although he appears to have appreciated the dicta in that judgment regarding the need for the respondent to act fairly.

The applicant has also not addressed the respondent’s assertion regarding when exactly he requested for the record of proceedings. Thus, in the circumstances of this case the delay is inordinate and there has not been a reasonable explanation for such delay. On the prospects of success, the applicant submitted that the respondent failed to avail the record of proceedings. However, what prompted the applicant to approach this court in the first place was that he was applying for leave to lead further evidence on appeal. What this shows is that he considered the record which he had to be inadequate. This means that the applicant indeed had a record of proceedings. Consequently, there is no basis for him to even apply for review.

In view of the foregoing, the applicant has not satisfied the basic requirements for him to be granted the application. There is therefore no merit in the application. The application can only fail.

In the result it is ordered that:

The application for condonation and extension of time within which to note an application for review be and is hereby dismissed.

Each party bears its own costs.

MABUNDU& NDLOVU LAW CHAMBERS, APPLICANT’S LEGAL PRACTITIONERS. MTETWA & NYAMBIRAI LEGAL PRACTITIONERS, RESPONDENT’S

LEGAL PRACTITIONERS.