Isdo Ruzvidzo v Delta Beverages (PVT) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/169/2021
HARARE, 7 JUNE 2021
CASE NO LC/H/APP/277/20
22 OCTOBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/169/2021

HARARE, 7 JUNE  2021&				   CASE NO LC/H/APP/277/20

22 OCTOBER  2021

In the matter between: -

ISDO RUZVIDZO					APPLICANT

And

DELTA BEVERAGES (PVT) LTD		RESPONDENT

Before the Honourable Kudya J

For the Applicant			Mufunda P. (Legal Practitioner)

For the Respondent			T. Pasirayi (Legal Practitioner)

KUDYA, J:

At the hearing of a condonation for late noting of an appeal by the applicant employee the respondent raised points in limine which are the subject of this judgment.  The respondent contends that the applicant is prematurely before the court since the Works Council decision which is the one appealable to the Supreme court was only given to the applicant on 15 October 2020. To that extent appellant had up to 4 November 2020 to file his appeal. His condonation application of 13 October 2021 is therefore prematurely before the court.

The respondent reasons further that if indeed there was a delay between the verbal and written notification of the determination of the Working Council decision such was so insignificant that it could not vitiate the proceedings. Besides, no prejudice was demonstrated to flow from the alleged delay.  The respondent finally contends that there is no good case for condonation since there is no proper notice of appeal attached to the condonation demonstrating the prospects. It therefore stands to reason that applicant is in breach of rule 22(2) Labour Court rules. In the result respondent prays that the point in limine be held and that the matter be struck off the roll with costs on a legal practitioner client scale for being bad at law.

In response to the point in limine applicant is adamant that his application is properly before the court.  He reasons that his condonation application is in relation to the decision of the head of department level.  He contends further that the Works Council decision is not before the court hence not the subject of the condonation. He states further that the Code of conduct spells out clearly that the determination of the initial appeal has to be made and concluded within 30 days from the commencement of proceeding.  He thus says that since he only got the determination on day 35 it means the same was communicated late to him thus putting respondent in breach of the time lines. In the result he prays that the point in limine be dismissed and that the matter proceeds to be heard on its merits.

A reading of the Code of conduct in paragraph 11(2) speaks clearly to the fact that it is only the appeal from the Appeals Council which in the case at hand is the Works Councils which lies to the labour court. See hierarchy of the hearing structure set out in paragraph 1(2) of the Code of Conduct.  It is the court’s view that if there are any delay issues these can only be discussed within the context of that structure.  It is patently clear from the record that the Works Council decision was for 15 October 2020 hence making a condonation application against it on 13 October 2020 a premature one.  It seems to the court that applicant misses that important fact that an appeal to the labour court against a Head of Department decision is not provided for in the Code of conduct.  To that extent any purported condonation premised on the breach of time lines vis the Head of Department decision is bad at law.

It is also pertinent to note that no reaction was made to the argument that the condonation application is defective for want of attachment of the notice of appeal.  It is settled law that what is not contested is as admitted See Chipadza v Tekere HB-10-17  In like manner the silence on this aspect of this matter is a concession by applicant that his condonation application is bad at law. Equally the issue of prejudice has not been spoken to thus admitted in the court’s view.

In the ultimate it is clear that no good case for objecting to the points in limine has been made out by the applicant. The point in limine should therefore succeed.

As regards costs no clear basis has been laid out why application should be penalised for pursuit of his right albeit in inelegant manner. The court is convinced therefore that no good case for the grant of costs on a higher scale has been made out.  It is therefore just and equitable to let each party bear their own costs.

IT IS ORDERED THAT.

The point in limine raised by the respondent being well place d it be and hereby succeeds.  The condonation application be and is hereby struck off the roll with each party bearing own costs.

Mufunda and Partners Law Firm, Applicant’s Legal Practitioners

Messrs Gill, Godlonton and Gerrans, Respondent’s Legal Practitioners