Emson Mandizvidza v Grain Marketing Board & 3 Others

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/279/20
HELD AT HARARE ON 18th NOVEMBER, 2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/279/20

HELD AT HARARE ON 18th NOVEMBER, 2020     CASE NO. LC/H/APP/116/20

AND 27TH NOVEMBER, 2020

In the matter between:-

EMSON MANDIZVIDZA							Applicant

And

GRAIN MARKETING BOARD						1st Respondent

And

MRS S. MUCHIRAHONDO N.O						2nd Respondent

And

MR. N. KARAMBAKUWA N.O.						3rd Respondent

And

MR. ALBERT MANDIZHA N.O.						4th Respondent

Before the Honourable Mhuri, J.

For Applicant	:	In Person

For Respondents	:	Mr. H. Muromba (Legal Practitioner)

MHURI J.

This is an application by applicant for condonation of late filing of an application for review of both Disciplinary Committee’s and Appeal Committee’s proceedings.

The application was set down for hearing on the 18th November 2020 at 10.00 hours but could not take off at the allotted time due to requests for postponement by Mr. Sengwayo the applicant’s legal practitioner then.  The matter was stood down to 14:30 hours to enable the legal practitioner to go through the record and prepare.

At 14:30 hours, applicant, now self-acting as the legal practitioner had renounced agency sought another postponement which was opposed by respondents.  At the respondents instance, and agreed to by applicant, the Court was requested to proceed to consider and determine the matter on the papers filed of record as both parties had filed submissions.

I will proceed to determine the application on the papers filed.

The brief historical background is that, applicant was arraigned before a Disciplinary Committee facing a number of acts of misconduct.  This was in August, September, October and November, 2013.  The disciplinary proceedings were concluded on the 6th November, 2013, wherein applicant was found guilty of some of the acts.

On the 27th November, 2013 applicant noted an appeal against the Disciplinary Committee’s verdict and penalty.  On the 13th December, 2013 applicant, through his

legal practitioners Gunje and Chasakara Law Firm was advised of his appeal results.  The Appeal’s Committee upheld the Disciplinary Committee’s verdict and penalty.

The record shows that after this communication there was no action taken by applicant.  There was a very long lull until the 8th July 2019 when Mtetwa Law Chambers wrote requesting the respondent’s code of conduct which was availed on 9th July 2019.  After this, the next communication was on the 9th January, 2020 from T.K. Takaindisa Law Chambers, requesting the record of disciplinary proceedings.  On the 16th January, 2020 Takaindisa Law Chambers acknowledged receipt of documents requested and availed on the 10th January, 2020.  On the 17th January, 2020 additional documents were availed inter alia, appeal minutes notice and grounds of appeal by applicant.

After the 17th January, 2020 there was another lull by applicant until the 6th July, 2020 when applicant filed this application, even though it was prepared in March.

In its pleadings, respondent raised a preliminary point that the matter which applicant was seeking to bring before the Court has since prescribed.  It relied on Section 15 (d) of the Prescription Act [Chapter 8:11].  The cited section provides for periods of prescription of debts.  It reads:-

“The period of prescription of the debt shall be –

…………………………………………………

…………………………………………………

…………………………………………………

except where any enactment provides otherwise, three years, in the case of any debt.”

It is my considered view that this section does not apply to the matter in casu.  Applicant is not suing for or pursuing a debt.  Neither does Section 94(1) of the Labour Act [Chapter 28:01] apply in this case, as this section applies to disputes and unfair labour practices that are brought before a labour officer.

I find therefore that this preliminary issue was not well taken and is not upheld.

In applications for condonation of late filing, of applications for review or appeal there are requirements which a litigant has to satisfy for him/her or it to succeed.  The length of the delay must be stated.  It must be explained satisfactorily.  Prospects of success must be shown, the convenience of the Court and the other party must be addressed.  See:-

FORESTRY COMMISSION

VS

MOYO   1997 (1) ZLR 254 S

Before the court can delve into these requirements, it must be satisfied that there is a proper application before it.  In casu, applicant is seeking review of:-

the disciplinary hearing and its outcome.

The appeal and its outcome. (paragraph 11 of his founding affidavit)

In paragraph 13 of his founding affidavit he states this is a dual application [Application for Condonation for late filing of Review and the Application for Review] which shall be dealt with simultaneously.

More confusion is seen in applicant’s heads of argument wherein he prays for the granting of condonation and the granting of his review application and a declaration that the entire proceedings and verdict are null and void.

Firstly, applicant cannot seek to have reviewed the Disciplinary Committee’s proceedings at this juncture when he had the opportunity to raise those grounds before the Appeals Committee when he noted his appeal, or he could have sought review in this Court at the conclusion of the Disciplinary Committee proceedings then.  Secondly applicant cannot seek condonation and the granting of the review in one application.  By virtue of this confusion, this application is defective.

However, even if the application was not defective, this application would not be granted.  It has no merits at all.

At first, the length of the delay is too inordinate.  The Disciplinary Committee’s proceedings were concluded on the 6th November, 2013.  In terms of Rule 16 (1) of Statutory Instrument 59 of 2006 (applicable then) applicant was to file his application within 21 days from the date when the proceedings were concluded.  He did not, but only to file this application in July 2020, i.e. 6 years 8 months later.

The Appeal Committee’s proceedings were concluded on the 13th December, 2013.  Applicant had 21 days to file his application.  He did not, only to file it in July 2020, i.e.6 years 7 months later.

This is a very inordinate delay I must say.

Applicant proffers no explanation for the delay for the period November/December, 2013 to July 2019.  He proffers no credible explanation for the delay for the period July 2019 to January 2020.  He proffers no explanation for the delay for the period January, 2020 to July, 2020.

The explanation the applicant proffers is that his requests to be furnished with relevant documents were being ignored by respondents.  I find this explanation very unsatisfactory.  The record shows that the 1st request was by Mtetwa Law Chambers in July 2019 and only for a Code of Conduct.  This was timeously availed.  The next request was in January 2020 and the documents were timeously availed in January, 2020.

Further, in his notice of appeal to the General Manager dated the 27th November, 2013 he states –

“Take notice that appellant hereby appeals against part of the decision and entire penalty of the Disciplinary Committee.

The results of the disciplinary hearing proceedings were served on 14th November 2013 and full record of proceedings was served on 21st November, 2013.”

The underlined goes to show how applicant is not being candid with the Court.

As at the 21st November, 2013 he had the relevant documents for him to file the application for review.

The explanation given is totally unsatisfactory and cannot be accepted.

In view of the above, I will not delve to consider the prospects of success of the review especially considering that he intends to seek review of both the Disciplinary Committee’s and Appeal Committee’s proceedings at one time.

Further the relief he is seeking in his intended application for review is incomplete as it does not state what is to be done when the proceedings are declared null and void.  The relief sought is defective.

The adage there must be finality to litigation is apt.

It would not be just for the court to grant condonation for a matter such as this one, where applicant sat on his laurels and did nothing until years later when he wakes up from his slumber only to put the other party into unnecessary costs in defending such an application.

This application cannot be granted, and for putting respondents into incurring costs defending such a matter, I will grant respondent’s prayer that it be awarded costs on a higher scale.

To that end, the following order is made,

That the application for condonation of late filing of review application be and is hereby dismissed.

Applicant bears respondents’ costs on the attorney/client scale.

KANTOR IMMERMAN – Respondents’ legal practitioners