Innocent Sithole v Zimbabwe Revenue Authority

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/130/25
HELD AT HARARE 28TH JANUARY 2025
CASE NO. LC/H/1053/24
---------


1

IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 28TH JANUARY 2025

AND

JUDGMENT NO.LC/H/130/25

CASE NO. LC/H/1053/24

In the matter between

INNOCENT SITHOLE	APPLICANT

And

ZIMBABWE REVENUE AUTHORITY	RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE.

FOR THE APPLICANT : T.J. MAFONGOYA

With him C.MUTSENEKI

FOR THE RESPONDENT M.N. CHIDEMBO

MAKAMURE J:

[1]This as an application for condonation for late noting of an appeal . It is opposed.

[2]The applicant is a former employee of the respondent . He was dismissed from

employment following disciplinary proceedings for ‘Carrying out any conduct which is

inconsistent with the express or implied conditions of contract of employment’ in violation

of the applicable code of conduct. The basis of the charge was that the applicant during the

course of his duties as a Revenue Officer charged rent for certain goods and such rent was

below the stipulated amount and therefore contrary to both legislation and the terms of his

2

contract of employment. As part of his defence, the applicant raised the issue that he was

charged in terms of an expired contract of employment.

The dismissal was in June 2021. An internal appeal was noted but in August 2022 the

Appeals Committee dismissed the appeal .

[3]The applicant then filed an application for condonation for late noting of appeal with this

Court which application was granted unopposed on 29th January 2024.The applicant was

granted ten days within which to note the appeal. Instead of noting the appeal within ten days

as ordered by the Court the applicant through his trade union on 23 February 2024 filed a

notice of appeal. This was well outside the ten- day period ordered by the Court. The appeal

was struck off the roll on the 28th of May 2024 as it was filed out of time and also the grounds

of appeal were found to be not clear and concise . He filed another application for

condonation for late noting of appeal and extension of time within which to note the appeal

on 4th July 2024. That too was defective in the relief being sought and on the 26th of

September 2024 was struck off the roll. It is pertinent to note that when the application was

struck off the roll on both on 28th May 2024 and 26th September 2024, the applicant was

represented by a trade unionist and a legal practitioner respectively.

[4] The reason or reasons why the applications failed were errors incurred by the applicant’s

representatives. After the initial application for condonation was granted the applicant was

granted ten days within which to note the appeal. However, the applicant’s representative

filed it after twenty-one days. The trade unionist who made the error did not file a supporting

affidavit. The said trade unionist is said to be of ill health and therefore could not file an

affidavit in support of that assertion. There was no affidavit from the trade union itself in

support of the assertion that one of its own was not well . The applicant in his founding

affidavit expects the Court to ‘understand’ that the said trade unionist was not able to submit

3

a supporting affidavit due to ill-health. Unfortunately, the Court cannot simply ‘ understand’

the applicant upon his mere say so. There has to be proof to that effect. An affidavit from the

relevant trade union would have been useful. Thankfully the error by the trade unionist was

overtaken by events in the sense that after the notice of appeal was struck off, the next

application was struck off on the basis of an error by a different representative who is a legal

practitioner. The legal practitioner in question duly filed an affidavit explaining their error

and took measures to file an appropriate prayer. The applicant has now filed the present

application.

[5]It is trite that the requirements for an application of this nature are well established .They

include the following:

1. The extent of the delay.

2. The reasonableness of the explanation for the delay.

3. The prospects of success on appeal.

4. The respondent’s interest in the finality of the judgment in his/her favour.

5. Convenience of the court.

6. Avoidance of unnecessary delay in the administration of justice.

Ismail Moosa Lunat v Mohammed Patel SC47/22.

[6]It was the applicant’s position that the delay which is eight(8) months is not inordinate

given the explanation which was given to the Court. It was argued that the first grant of

condonation was still extant. It was further argued that the explanation was reasonable. It was

also argued that there were high prospects of success on the merits should the application be

granted. It was submitted that the applicant was candid with the Court and that the application

should be granted. It was further submitted that under the circumstances the parties should

be allowed a chance to ventilate merits of the main matter. The applicant relied on case

4

authorities which included the following: Mapondera and 55 Others v Freda Rebecca

Mine SC 81/22;ZIMASCO v Marikano SC4/14;Proton Bakery (Pvt) Ltd v Takaendesa

2005 (1) ZLR 60 (S);Mashonaland Turf Club v George Mutangadura SC5/12;Tshova

Mubaiwa Transport Co-Operative Ltd and Ors v Mpofu and Ors HB 167/04 ;DHL

International (Pvt) Ltd v Tinofireyi SC 80/14;Magodora &Ors v Care International

Zimbabwe SC24;Reserve Bank of Zimbabwe v Granger SC 34/01.

[7]The position of the respondent on the contrary, is that the application is defective in that

the notice of appeal is defective, the delay is inordinate with no reasonable explanation and

there are no prospects of success. It was argued that the defect lies in the fact that applicant is

seeking to introduce new issues in the grounds of appeal which issues were not dealt with in

the lower tribunal.

[8]On the question of inordinate delay, it was submitted that there was no adequate

explanation. It was submitted that the applicant failed to utilize the chance he was granted

when the initial application for condonation was granted unopposed. It was argued further

that where fault lay with the trade union , the trade union in question ought to have submitted

evidence in support of the assertion against it or against one of its members. It was argued

further that where the rules of court were flouted because of ignorance of the same rules ,

such cannot be used as an excuse as ignorance of the law is no excuse. The following are

some of the authorities relied on by the respondent: Tendai Tamanikwa & Ors v ZIMDEF

& Anor SC73/17v Madyavanhu v Saruchera & Ors SC75/17; Jani v The Commissioner

of Police & Ors HH550/15;Muringi v Air Zimbabwe & Anor 1997 (2)ZLR 488;

Chamboko v Dorowa Minerals Limited SC 26/15;University of Zimbabwe v Jirira and

Anor 12/18; Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC);Happison

Muchechetere v ZBC & Anor SC143/21;

5

[9]In Kodzwa v Secretary for Health &Anor (above) the court referred to the learned

authors Herbstein & van Winsen in their book The Civil Practice of the Supreme Court 4th

Ed by Winsen and Loots and went on to state that:

‘Condonation of the non-observance of the rules is by no means a mere formality. It is for

the applicant to satisfy the court that there is sufficient cause to excuse him from

compliance…

The court’s power to grant relief should not be exercised arbitrarily and upon the mere

asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being

shown by the applicant. In the determination whether sufficient cause has been shown, the

basic principle is that the court has a discretion, to be exercised judicially upon a

consideration of all facts and in essence, it is a matter of fairness to both sides in which the

court will endeavor to reach a conclusion that will be in the best interests of justice. The

factors usually weighed by the court in considering applications for condonation… include

the degree of non- compliance, the explanation for it, the importance of the case, the

prospects of success, 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.” S’

[10]In Rinos Terera v George Lentaigne Ingram Lock & Ors SC93/21 the Supreme

Court stated that where a litigant has fallen foul of the rules of court, they ought to apply for

condonation without delay. The Court further stated that the applicant must be candid with

the court in the explanation in order to satisfy the court that the explanation is candid and

deserves the empathy of the court and that there are prospects of success.

[11]In the present matter it is common cause that the initial application for condonation was

granted without opposition. Had the applicant seized that opportunity , maybe the situation

would have been different. But that was the beginning of his problems and the problems were

6

largely caused by his representatives. It is trite that a litigant’s chosen representative is his or

her agent and is therefore bound by what they do and the legal practitioner has a duty to be

familiar with the relevant procedures required by the court. Kombayi v Berkhout 1988(1)

ZLR 21 (SC). At the same time, it is clear that the applicant in the present matter has always

been desirous of prosecuting his appeal. In Tshova Mubaiwa Transport Co-operative &

Ors v Mpofu & Ors (above) the court stated that:

‘In casu, no doubt the delay has been over a year which indeed is long under the

circumstances. The reason for such delay is that of the ineptitude of their legal practitioner.

While these courts have on many occasions held that a litigant chooses his legal

representative and it is through that choice that he should either succeed or fail in that

litigation. However, this approach should not be adopted as a cut and dry principle.’

[12]Equally in the present matter when the explanation by the applicant is considered, the

delay though inordinate has been explained . I find the explanation reasonable. With respect

to prospects of success if there is any truth with respect to the contract of employment and his

duties according to that contract then there appear to be prospects of success. Further with

respect to the defects raised on behalf of the respondent, they can best be dealt with when

merits of the matter are being considered. It is clear from submissions from both parties that

they are aware of the need for finality to litigation. It is therefore my considered view that the

applicant has satisfied the basic requirements for the present application to be granted .

The application therefore succeeds.

[13]In the result it is ordered that:

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

2.The applicant is granted ten (10) days from the date of this order within which to note the

appeal.

7

3. Costs be costs in the cause.

MAFONGOYA &MATAPURA , APPLICANT’S LEGAL PRACTITIONERS.

KANTOR & IMMERMAN, RESPONDET’S LEGAL PRACTITIONERS.