Enoch Hamadziripi & 2 Ors v Cresta Hospitality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/253/2016
HARARE, 12 JUNE 2016 &
22 APRIL 2016
CASE NO LC/CON/H/127/2013
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/253/2016

HARARE, 12 JUNE 2016 &			       CASE NO LC/CON/H/127/2013

22 APRIL 2016

In the matter between

ENOCH HAMADZIRIPI							1ST APPLICANT

And

EDGAR MAGARA								2ND APPLICANT

And

MARY KANDIKO								3RD APPLICANT

Versus

CRESTA HOSPITALITY							RESPONDENT

Before the Honourable L F Kudya J

For the Applicant      E Ndlovu  (Legal Practitioner)

For the Respondent   G Makings  (Legal Practitioner)

KUDYA J:

This is an application for condonation of the late noting of an appeal by the applicant in cases which pitted them and the respondent employer. Judgment was reserved in June 2015 on the understanding that the parties would file their heads of argument after the court had heard oral submissions. The applicants’ heads were not forthcoming until 17 March 2016 when there were brought before the court. On their face they are stamped 23 June 2015 but they did not find their way to the court in time for it to rule on the application. This explains the inordinate delay on the handing down of the judgment in this matter.

As regards the application itself it is premised on the fact that the applicants have always been desirous of appealing against the decisions of the respondent’s disciplinary committees which found them guilty and dismissed them from employment. They allege that they however fell prey to a trade unionist who they believed had filed their appeals yet in truth and in fact he had not done so as late as November 2013 yet they had been dismissed in February/March 2013. It is within that realm that they say they then lodged the instant appeal to allow them to file their appeal out of time. They argued that they have good prospects on the merits of their cases as they believe that their guilt was founded upon unsubstantiated allegations levelled against them by the respondent.

The application was opposed by the respondent which maintained that at the outset the application was not properly before the court as it sought to join parties who were subject to separate disciplinary proceedings in particular as regard Hamadziripi and as regards the other two applicants. The respondent maintained that on account of that misjoinder the application should fail. It however hastened to argue that even if the parties were correctly joined the application was still without merit.

This is so because the disciplinary hearings giving birth to the applicants’ dismissal were done in February and March 2013 and as far back as November 2013 the applicants claim that they made condonation application yet the application at stake seems to have been brought up again in 2015. It therefore queried why there was such a delay and maintained that the delay was so inordinately long that the application for condonation should not succeed.

On the merits the respondent maintained that the applicants gain said that they had not been found guilty on substance but on conjecture yet they failed to amplify that submission to demonstrate why they argued that the guilty verdicts were products of conjuncture and speculation. Besides, as for the applicant Mary she was said to have absented self from the hearing and a default decision was handed down in her matter. To that extent the respondent wondered how such an applicant who did not present self at the hearing could argue that her matter was concluded on conjencture. In the result the respondent prayed that the application for condonation be dismissed as it lacks merit and also on account of the misjoinder attendant to it.

Before dealing with the main merits of the condonation application the court needs to dispose of the point in limine which was raised by the respondent. A reading of the matters at stake shows clearly that charges which were preferred against Hamadziripi were indeed different from those preferred against Magara and Kandiko. To that extent it is clear that the parties were misjoined and the application is defective on that account and need to be struck off on account of that misjoinder.

Being that as it may the court is persuaded that the misjoinder notwithstanding the court should nevertheless rule on the merits of the case as these have already been pleaded and submitted on hence it is only fair and just that they be ruled on.

Delay

As regards this component a reading of papers filed on record show that the instant application was filed on 26 November 2013 round about the time when the applicants claim that they discovered that no appeal had been filed with the Labour Court on their cases. The record bears a 2013 case number being LC/Con/H/127/13 which is in sync with the fact that the applicants lodged this application in 2013 November. To that extent the argument raised by the respondent that condonation was sought in 2013 is without merit and that point should fail.

The period which should therefore only concern the court is the March 2013 to November 2013. A reading of the respondent’s response demonstrates that its argument about inordinate delay is mainly centred on the 2013 argument. It being without merit should not avail it. The court therefore has no basis to hold the excuse preferred by the applicants vis the delay as being outrageous. The explanation being cogent is therefore accepted by the court.

Merits of the Case

On account of the fact that the matter involves three separate disciplinary processes it also means that the merits have to be looked at individualistically. All that the applicants placed before the court were bald averments that they were not found guilty based on concrete evidence. The submissions on the record and the heads filed by the applicants fail to demonstrate with sufficient detail why the applicants claim to have good cases on the merits.

To the contrary, a reading of the record of proceeding in relation to Hamadziripi, shows that he was accused of not making payments or disbursing monies as required by the respondent’s procedures. He conceded the fact but argued that he trusted his superiors. Such a defence cannot by any chance be taken to be a serious defence making up a good case on appeal. As regards Magara all he could tell the committee was that he bent the rules to keep the employer afloat and that again cannot be constituted as making for cogent prospects on appeal.

As for Mary, given the fact that her guilt was decided in her absence it is difficult to see what prospects on appeal she can claim to emanate from the default order. The cumulative effect of the delay and the porous appeal grounds lead to one inescapable conclusion that no good case for condonation was made out on behalf of the applicants. The application should therefore fail.

IT IS ORDERED THAT

The application for condonation of late noting of appeal being devoid of merit it be and is hereby dismissed with costs.

Mabundu Law Chambers, applicants’ legal practitioners

G T Makings, respondent’s legal practitioners