Jabulani Mukonde v Graten Investments t/a Olam Cotton

### Preamble

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO

LC/H/754/2014

HARARE, 26 SEPTEMBER 2014

CASE NO

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/754/2014

HARARE, 26 SEPTEMBER 2014 & CASE NO LC/APP/276/2014

21ST NOVEMBER 2014

In the matter between

JABULANI MUKONDE APPLICANT

Versus

GRATEN INVESTMENTS RESPONDENT

t/a OLAM COTTON

Before The Honourable P Muzofa: Judge

For the Applicant B Ngwenya (Legal Practitioner)

For the Respondent G Gapu (Legal Practitioner)

MUZOFA J:

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

The court in considering such an application has to make the following considerations as set out in the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

The extent of the delay

The explanation

Prospects of success

Prejudice

The Extent of the Delay

The applicant was charged and dismissed from employment with effect from 6 May 2013. The applicant noted an appeal to the Managing Director who dismissed the appeal on 20 May 2013. The applicant was advised in the letter confirming the dismissal to appeal to the Labour Court within fourteen days of receiving the said determination. The application for condonation was filed with this court on 24 June 2014 almost thirteen months’ delay. Depending on the circumstances of a case, precedent has shown that even shorter periods have been deemed to be inordinate. The delay in this case is long. The rationale for putting timelines for litigants to note appeals is to bring finality to litigation. It is the policy of law that there should be finality in litigation. The respondent in casu would have considered the matter finalised after the Managing Director’s decision when the fourteen days within which the applicant was entitled to appeal lapsed. The respondent considered this matter as water under the bridge. It is therefore undesirable to open cases after such a period. It is the court’s finding that the delay is manifestly inordinate.

The Explanation

The onus rests on the applicant to show that there was sufficient cause for the delay. The court has to exercise its discretion judiciously upon a consideration of the facts and balancing the interests of both parties. See generally Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A). The right to appeal is not to be lightly taken away from any litigant, as it provides a platform to test the correctness of the decision sought to be appealed against. This right can only be interfered with where there is a good reason for interference.

The applicant’s explanation is that he approached legal practitioners Kanoti & Partners to note an appeal against the respondent’s decision. It is not indicated when the applicant approached the said legal practitioners. The correspondence filed of record by Kanoti & Partners to the designated agent is dated 18 December 2013. The letter to me does not appear as a follow up letter. It advises that the said legal practitioners represent the applicant. Although this letter was filed as proof that the erstwhile legal practitioners noted the appeal to the NEC for the Cotton Industry. I believe it also sheds light as to when the applicant started his efforts to note an appeal. If the decision confirming the applicant’s dismissal was made on 20 May 2013 and the applicant had fourteen days within which to appeal by 18 December 2013 the applicant was already out of time. There was no explanation for the delay occasioned between May 2013 and December 2013. That failure to explain the delay is fatal to the applicant’s case. It is unnecessary to decide on whether or not the cause of action albeit an incorrect procedure by Kanoti & Partners to appeal to the NEC is a sufficient cause. This is so because even before instructing Kanoti & Partners the applicant was out of time and there is no reasonable and acceptable explanation advanced.

Prospects of Success

The applicant has no prospects of success. There was evidence that the applicant instructed a subordinate to sign for the truck without satisfying himself that it was properly loaded. The truck was loaded in the absence of both the subordinate and the applicant. This was therefore within the applicant’s knowledge. In any event the evidence before the disciplinary committee showed that the applicant’s department which he was the supervisor was not conducting its duties according to the laid down procedures. The applicant gave reasons why they did not comply with the laid down procedures in the face of such evidence on a balance of probabilities the applicant has no prospects of success.

Having made the foregoing findings there is no need to consider the rest of the considerations to be taken into account. Clearly there was a flagrant breach of the rules, there was no acceptable explanation for it and there are no prospects of success, the indulgence of condonation should therefore be refused.

The following order is made:

The application for condonation of late noting of appeal be and is hereby dismissed with costs.

Chinawa Law Chambers, appellant’s legal practitioners

Scanlen & Holderness, respondent’s legal practitioners