Gerald Kambadza v Lilford Nhandara and Zimbabwe Leaf Tobacco Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/190/2020
HARARE, 12 JUNE, 2020
CASE NO. LC/H/APP/849/18
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/190/2020

HARARE, 12 JUNE, 2020		     	     CASE NO. LC/H/APP/849/18

Xref: LC/H/APP/849/18

AND 14 AUGUST, 2020

In the matter between:-

GERALD KAMBADZA							Applicant

Versus

LILFORD NHANDARA							1st Respondent

ZIMBABWE LEAF TOBACCO COMPANY (PVT) LTD		2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				In Person

For Respondents:				Gill, Godlonton & Gerrans Legal Practitioners

HOVE J:

This is an application for condonation for late filing of an application for review.

Factual Background

The applicant who was employed by the 2nd respondent was charged with Habitual and substantial neglect of his duties in terms of section 4 (g) of Statutory Instrument 15/2006.

He was found guilty and dismissed. His internal appeals were not successful and the matter was eventually referred to a Labour Officer.

The Labour Officer made a draft ruling upholding the decision to dismiss the applicant on 20 August 2018.

The applicant thought that the Labour Officer would apply for confirmation and on 25 September 2018 he wrote to the Labour officer asking him to apply for confirmation.

To date there has been no progress in the confirmation process. The 2nd respondent’s lawyers had indicated in a related matter as follows;

“I need to alert this honourable court of the Supreme court decision in Drum City (Pvt) Limited vs Brenda Garudzo SC57/18, page 6 thereof, in which the Supreme Court held that this honourable court would have no jurisdiction to confirm and register a draft ruling by the Labour Officer which is made in favour of an employer against an aggrieved employee”.

Perhaps this is why the confirmation proceedings have not progressed to date being that the ruling was in August 2018. I am not sure and it is really not relevant to the determination of the current application.

It is against this background that the applicant has decided to file this application for condonation for late noting of an application for review.

In considering an application of this nature, the court must consider several factors which include;

Whether or not the delay involved was inordinate.

The prospects of success should the application be granted.

The possible prejudice to the other side should the application be granted.

See – Civil Aviation v Hall 1990 (2) ZLR 354

Dc Kuszaka –Damowskiet Uxor v Steel No. 1966 RLR 60

Lamin 	(Pvt) Ltd v Bedford and anor SC 65/88

The court will consider seriatin the issues for consideration.

The length of the delay

The ruling which is being sought to be reviewed, should this application succeed, was on 20 August 2018. The application for condonation was filed on 23 March 2020. This is roughly 19 months after the ruling by the 2nd respondent.

The delay is clearly inordinate. The rules of court require that an application for review be filed within 21 days. The applicant submits that he became aware of the draft ruling on 25 September 2018. From September 2018 the date of this application is a period of 18 months. The applicant, from his affidavit, new that he wanted to challenge the draft ruling on procedural issues but he did not, choosing rather to wait until the application by the Labour officer for confirmation of the draft ruling

The applicant waited and nudged the Labour officer to make the application when all he needed to do was file the application he is now seeking to file. The delay of over one and half years is ordinate.

The explanation for the delay

The explanation profered by the applicant is that he was of the view that the Labour Officer would file an application for confirmation of the draft ruling and it is then that he would have challenged the draft ruling.

The applicant realized after continued research and scrutiny of the 2nd respondent’s responding affidavit that he would not realize his desired route of challenging the draft ruling and it is only then that he was jolted into seeking another way of challenging the draft ruling.

He was thus ignorant of the fact that he could have filed an application for review even while he waited for the confirmation proceeding as these are two independent processes which could have run concurrently.

This explanation is a plea in ignorance of the law. It is trite that being ignorant of the law is not an acceptable defence. The applicant could have sought legal advice and filed his application for review within the prescribed time from September 2018 instead of waiting until March 2020 to seek condonation. The explanation is unacceptable.

See in this regard the case of Martin Jongwe v National Foods Limited and anor HB 147/18.

Prospects of success on the merits of the intended application

The applicant believes that he has good prospects of success because the 1st respondent, the Labour officer erroneously dealt with the matter as a forum of first instance and this led him to adopt a wrong procedure and erroneously issue a draft ruling when he ought to have dealt with matter as an appeal hearing.

The applicant does not substantiate his claims that the procedure adopted was wrong. He makes the bold averments and does not proceed to substantiate the averments.

The Labour Act [Chapter 28:01] the act provides the process that was followed by the Labour Officer when a matter is referred to him, and the parties are not reconciled, he shall determine the matter and issue a draft ruling. This is what was done. The court was not referred to any provision of law or case authorities that support the applicant’s averments. He failed to establish that he had good prospects of success. The position of law is now trite that he who alleges must prove. See the case of Astra Holdings v Peter Chadamburuka SC 27/17 and also Book v Davidson 1988 (1) ZLR 365.

Possible prejudice to the other side

The other side has since August 2018, held the view that the matter had been finally resolved in terms of law. This is born out by the belief it expressed that in terms of the Drum city case (supra) there could not be any further process like application for confirmation proceedings. The 2nd respondent most likely proceeded to conduct its affairs in the belief that the dispute had been resolved to finality.

Calling it to answer to this application and a possible reopening of the dispute 19 months later would seriously prejudice it.

On the other hand the applicant only has himself to blame for failing to be diligent in the defence of his rights. The law is clear that the law will only assist the vigilant.

“It is a policy of law that there should be finality in litigation”.

See:

Ndebele v Ncube 1992 (1) ZLR 288

The applicant has thus failed to make a good case for condonation as all the considerations have been decided against him.

In the result the application is dismissed with no order as to costs.

Gill, Godlonton & Gerrans 	-	Respondent’s Legal Practitioners