Godknows Zimondi v Brown Engineering Group

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//23
---------


IN THE LABOUR COURT OF ZIMBABWE				JUDGMENT NO. LC/H//23

HELD AT HARARE 22 JUNE 2023					CASE NO. LC/H/332/23

AND 26 JUNE 2023

IN THE MATTER BETWEEN:-

GODKNOWS ZIMONDI					APPLICANT

AND

BROWN ENGINEERING GROUP				RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant				Ms Netsai Matongwana

For Respondent			Ms Norest Mangoi

MURASI J:

This is an application for condonation of the late filing of an appeal.

At the commencement of the oral submissions, Ms Matongwana raised preliminary issues relating to the filing of documents by the Respondent. She stated that Respondent’s legal practitioners had not filed an Assumption of Agency as prescribed by the Rules. She also stated that the Respondent had filed the heads of argument two (2) days after the due date and had not applied for condonation. In response, Ms Mangoi stated that due the new system of filing of documents on the IECMS platform, Respondent only realized on perusal of the filed documents that Applicant had already filed heads of argument and proceeded to file the heads of argument. She stated that this non-compliance had not been willful. In respect of the failure to file the Assumption of Agency, she stated that Respondent had assumed that since the Applicant had previously filed an appeal which he had later withdrawn, the representation of the Respondent was known and adequate in the circumstances.

The Court noted that Respondent had not complied with the Rules of Court. However the explanations tendered were reasonable in the circumstances. The court also noted that Applicant had not prayed that Respondent be barred in the circumstances. It is trite that a Court cannot grant a relief which an applicant has not prayed for. The Applicant had also not stated that he had suffered in the circumstances. The Court proceeded to dismiss the preliminary points so that the matter could be dealt with on the merits.

On the merits, Ms Matongwana stated she was going to abide by the documents filed of record. She stated Applicant had previously filed an appeal which was later withdrawn as it was realized to be defective after Respondent had pointed to defect in the Notice of Response. She submitted that the appeal in question was withdrawn in February 2023. The application was subsequently filed in May 2023. A reading of the Founding Affidavit shows that Applicant does not state much. In respect of the “Explanation of Delay” the following is stated:

“7. The delay is not inordinate considering that I previously made an appeal in time under case No. LC/H/1100/22.

8. I withdrew the matter after I noted that the matter was defective.”

In respect of the prospects of success, the following is stated:

“10. My dismissal was not in accordance to the provisions of SI 134 of 2017.

11. The matter is before this Honourable Court thereby constitutes multiple proceedings.

12. I was punished with an offence which is not yet proven that indeed I committed the offence.”

In response, Ms Mangoi submitted that Applicant had not tendered a reasonable explanation in the circumstances. She stated that Applicant argued that Applicant does not explain what the defect in the earlier was. She pointed out that Applicant has submitted wrong information to the Court. She submitted that Applicant withdrew the appeal on 4 March 2023 and filed the present application on 4 May 2023 and that a period of two months had lapsed and Applicant had explained what was happening during the period in question. She further submitted that precedent showed that where there has been a flagrant breach of the rules and no explanation for the delay is tendered, condonation should not be granted whatever the prospects may be. She pointed out that the decision sought to be appealed against was given on 24 October 2022 and the appeal was supposed to have been filed on 22 November 2022 and that the delay was now six months which was inordinate in the circumstances.

On the prospects of success, Ms Mangoi submitted that nothing can be gleaned from the application showing the prospects of success. She argued that an application stands or falls on the basis of the Founding Affidavit. She stated that Applicant had merely listed grounds of appeal which were not explained in the Founding Affidavit. She further argued that the grounds of appeal were not clear in themselves and do not show whether they were on points of law or factual disputes showing lack of precision. She further submitted the issue of multiple proceedings did not relate to the Applicant as this was a Show Cause Order which did not involve the Applicant as an individual.

ANALYSIS

Herbstein and Van Winsen in The Civil Practice of the Supreme Court of South Africa 4th edition, stated as follows at page 549:

“The Court may, on good cause shown, condone any non-compliance with the rules. The circumstances or cause must be such that a valid and justifiable reason exists why compliance did not occur and why non-compliance should be condoned.”

In P.E. Bosman Transport Works Committee and Others vs Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A), MULLER JA had this to say at 799 D-E:

“In a case such as the present, where there has been a flagrant breach of the rules of this court in more than one respect, and where in addition, there is no acceptable explanation for some periods of delay, and in indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.”

A reading of the application shows that Applicant has been economic with the need to explain why there has been a delay in submitting the application for condonation. Indeed Applicant has not explained why there was delay in filing the application for condonation after the withdrawal of the earlier appeal. Indeed Applicant does not ‘own up’ in the Founding Affidavit that he withdrew the earlier appeal because the Respondent had pointed out that the appeal was defective. I have elsewhere in this judgment reproduced Applicant’s ‘explanation’ for the delay. Indeed, there is no explanation at all. In Stevenson v Minister of Local Government and Others 2002 (1) ZLR 498, it was stated as follows at 510D:

“And, as has been said repeatedly, an Applicant must stand or fall by his founding affidavit and facts alleged in it.”

There is clearly a dearth of information in the founding affidavit. The prospects of success are not explained. It can be seen that none are tendered which may be considered by this Court. The application lacks merit.

In the result, the application for condonation of the late filing of an appeal is hereby dismissed with costs.

GEEMCEWU-				Applicant’s representatives

Matsikidze Attorneys-at-Law-		Respondent’s legal practitioners.