Innocent Matunga v Zimpost

JUDGMENT NO. LC/147/13

IN THE LABOUR COURT

HELD ON 28TH MARCH, 2013               CASE NO.LC/CON/H/119/12

In the matter between



INNOCENT MATUNGA                       -     Applicant

Versus

ZIMPOST                                -     Respondent



Before The Honourable L. Matanda-Moyo
For Applicant         :   In Person

For the Respondent :      C. Kwaramba (legal Practitioner)




MATANDA-MOYO,L.


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

application to succeed, applicant has to;

   1) Reasonably explain the delay and

   2) Show that he has prospects of success on appeal.



   Applicant submitted that he was not aware of the time frame within

which to note his appeal.     He also submitted that he did not have the

financial resources to get in touch with his worker representative.      The

above reasons do not constitute reasonable explanation for the delay. The




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Applicant received the determination in November 2011. He failed to file

his appeal his appeal within 21days.



   Respondent’s counsel referred me to the case of United Plant Hire (Pvt)

Limited vs Hills and Others 1976 (1) S.A. 717(A) at page 720 F-G where the

court said;
      “it is well settled that in considering applications for condonation, the court has a
      discretion, to be exercised judicially upon a consideration of all the facts; and that in
      essence it is a question of fairness to both sides. In this enquiry relevant consideration
      may include the degree of non-compliance with the Rules, the explanation therefore, the
      prospects of success ----- (on the merits), the importance of the case, the Respondent’s
      interest in the finality of his judgment, the convenience of the court and the avoidance of
      unnecessary delay in the administration of justice.    The list is not exhaustive.”



See also Bishi vs Secretary for Education 1989 (2) ZLR 240(H) and

Mutizhe vs Ganda and others 2009 (1) ZLR 241(S).


      Let me proceed to look at whether Applicant has prospects of

succeeds on the main appeal.               The brief facts are that Applicant was

employed by the Respondent as a postal clerk based at Headlands Post

Office.   Respondent had a contract with RATP Insurance whereby

Respondent would issue RATP Insurance to those applying for licences.

Respondent derived revenue from such an arrangement. In total disregard

of this arrangement Applicant issued Regal Motor Insurance Certificates to

customers. He caused financial prejudice to the Respondent. Applicant

agreed that he was not authorized to issue Regal Motor Insurance

Certificate to customers. To make matters worse Regal Motor Insurance

was cheaper than the one offered by the Respondent.


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      From the above facts it is obvious and clear that Applicant’s

convictions on charges of conflict interest and disregard of standing

procedures were proper. The Respondent proved its case on a balance of

probabilities. An appeal court is not likely to interfere with the conviction.



      With regard penalty it is trite that the issue involves the exercise of a

discretion. An appeal court cannot interfere with the exercise of discretion

unless it is shown that the discretion was improperly exercised. Respondent

referred me to the case of Passmore Malimanjani vs CABS SC 47/07 where

Gwaunza JA said;


      ‘the issue of what punishment to impose after any employee is found guilty of an act of
      misconduct is clearly one of discretion. It is trite that an appeal court does not interfere
      with the exercise of discretion by a lower tribunal unless it is shown that the discretion
      was improperly exercised. As contended by the Respondent, the penalty imposed must
      show a serious misdirection to justify interference by the appeal Court. The misconduct
      with which the Appellant was charged attracts the penalty of dismissal. There is nothing
      in the manner in which the proceedings were conducted --- to suggest any misdirection
      on the part of the employer.’


      The same can be said for the present case. It is most unlikely that an

appeal court may interfere with the penalty of dismissal imposed.                            The

offences committed by the Applicant attracted such a penalty.



      In the absence of reasonable explanation for the delay in applying for

condonation and for the delay in noting the appeal and in the absence of




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any prospects of success on the main appeal this application cannot

succeed.



      Accordingly the application for condonation for late noting of an

appeal is dismissed with no order as to costs.




Mbizvo,     Muchadehama        &   Makoni        -    Respondent’s   Legal
Practitioners




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