Fresh Taste Bakery v Enerst Pikinini

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/01/2014
MASVINGO, 20 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/MS/01/2014

MASVINGO, 20 MARCH 2014 &		 CASE NO  LC/CON/MS/34/2012

11 APRIL 2014

In the matter between:

FRESH TASTE BAKERY							APPLICANT

Versus

ENERST PIKININI							RESPONDENT

Before The Honourable P Muzofa  : Judge

For the Applicant		R Chavi   (Legal Practitioner)

For the Respondent       I Muzuru (Trade Unionist)

MUZOFA J:

This is an application for condonation for late noting of an appeal.

The case of Kodzwa v Secretary for Health &Anor 1999 (1) ZLR (S) 315 enunciated what the court has to take into consideration in an application such as this one, being:

The degree of non-compliance and the reasonableness of the applicant’s explanation for the default;

The prospectsof success; and

The respondent’s interest in the finality of the case, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.

The degree of non-compliance and the explanation

The arbitral award was issued on 17 July 2012. The applicant submitted that it became aware of the award on 31 October 2012, collected it on 14 November and filed this application on 3 December 2012. The respondent opposed the application on the basis that on 24 July 2012 he left a copy of the award with the applicant. As such the applicant was aware of the award as early as July and chose to do nothing about it. There was no proof that the applicant was served as alleged, and the applicant denied that it was served with the award. Although the delay is not unreasonable the manner in which the applicant conducted itself lacked seriousness. If indeed the applicant became aware of the award on 31 October 2012,how is it that it only collected the award on 14 November 2012. Thereafter it filed the application for condonation on 3 December 2012. Going by the date the applicant became aware of the award on 31 October 2012, by the time an application for condonation was filed the twenty one day period had lapsed. The applicant was not diligent in pursuing its matter. I do not believe there is a reasonable explanation for the delay. There was no explanation why the award was collected some two weeks later.

Prospects of Success

According to the applicant the arbitrator denied the applicant its right to be heard by proceeding to determine the matter without the applicants’submissions. It is difficult to appreciate this submission. From the arbitral award it is clear that both parties were represented before the arbitrator. The applicant’s representative made an undertaking to furnish the arbitrator with certain information. The information was not provided to the arbitrator. Consequently the arbitrator was left with no option but to determine the matter with the information that was before him. In my view the arbitrator was not enjoined to wait forever for the information considering that there should be finality in cases. I do not believe the applicant has prospects of success on appeal.

The above two considerations adequately dispose of this application. Accordingly the following order is made:

The application for condonation for late noting of an appeal be and is hereby dismissed.

Each party to bear its own costs.

Kwirira&Magwaliba, applicant’s legal practitioners