Kenneth Nanitenga & 8 Others v Rock Chemical Fillers (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/522/2016
HARARE, 3 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/522/2016

HARARE, 3 MARCH 2016			   CASE NO. LC/H/APP/1126/15

AND 9 SEPTEMBER 2016

In the matter between:-

KENNETH NANITENGA & 8 OTHERS				Applicants

And

ROCK CHEMICAL FILLERS (PVT) LTD			Respondent

Before Honourable L. Hove, Judge

For Applicants	Mr Obey Shava (Legal Practitioner)

For Respondent	Mr T.R. Tanyanyiwa (Legal Practitioner)

HOVE, J:

In this case, the applicants are seeking condonation and extension of time within which to note an application for leave to appeal to the Supreme Court against a decision of the Labour Court.

The Labour Act [Chapter 28:01] (the act) requires a litigant who wishes to appeal to the Supreme Court against a judgment of the Labour Court to file an application for leave to appeal.  Section 92F (2) provides that;

“Any party wishing to appeal from any decision of the Labour Court on a question of law in terms of subsection (1) shall seek from the President who made the decision, or in his or her absence, from any, other President leave to appeal that decision.”

Such application is to be made within 30 days in terms of rule 36 of the Labour Court rules.

The applicants failed to apply for leave to appeal within the prescribed 30 days and hence this application for condonation.

It is settled law that in applications for condonation, an applicant must show that he or she has a reasonable explanation for the delay and further that he or she has good prospects of success on the merits.

Grant v Plumbers P/L 1949 (2) SA 470

Elson Madoda Jakazi & Anor v The Anglican Church of the Province of Central Africa & 2 Ors SC 10/13

Anna Marange v Joseph Chirodza SC 29/12

The above case make the point that an applicant must give a reasonable explanation for the delay and further show that he has good prospects of success on the merits of the intended appeal.

The Explanation

The applicant’s legal practitioner swore to the founding affidavit in which were given reasons for the delay in filing the application for leave to appeal.

Firstly, he says that he did not become aware of the Labour Court Judgment which had been handed down on 12 June 2015 until he was served with respondent’s application for leave to appeal to the Supreme Court on 24 July 2015.

Secondly, His clients were scattered all over the country and he did not manage to get instructions until 30th July 2015.

Thirdly, he miscalculated the time and assumed that his client’s application was still within the prescribed time limits.

The court did not find that the explanation for the delay was reasonable.  This was so because, the respondent in opposing the application stated that it was not true that the applicant’s lawyers only became aware of the Judgment of the Labour Court upon being served by the respondent’s application for leave to appeal on 24 July 2015.  The respondent submitted so because the applicant’s legal practitioner wrote a letter to the respondent on 16 June 2015 and attached to that letter was the court’s judgment.  As earlier stated the judgment had been handed down on 12 June 2015.  The applicant’s legal practitioner therefore became aware of the court’s judgment on or before 16 June 2015 when they sent a copy of it to the respondent.

The explanation in this regard is therefore false and can’t be considered as reasonable.

The other reason given that the legal practitioner miscalculated the dates is again an unreasonable explanation.  The legal practitioner, negligently conducted his duties in failing to accurately calculate the period within which he was supposed to file his client’s application for leave to appeal.  Negligence on his part cannot constitute a reasonable explanation for delay.

The applicants cannot seek to rely on their lawyer’s negligence to succeed.  They too must be penalized For their lawyer’s negligence, as was stated in the case of Saloojee & Anor NNO v Minister of Community Development 1952 (2) SA 135 (A).

I agree with the respondent that the fact that the applicant’s lawyer has not been truthful, in itself, makes the applicants unsuitable candidates for condonation.  The court cannot exercise its discretion in circumstances where the applicants are not being completely honest with the court.

The courts have also held that where there is an unreasonable explanation, the court may refuse to condone irrespective of the applicants’ prospects of success.  See in this regard the case of Anna Marange (supra).

Prospects of success

The applicant’s prospects of success on appeal are also poor.

The Supreme Court in the case of S v McGown 1995 (2) ZLR 81 held that;

“If the prospects are reasonable, the application should be granted otherwise it should be refused.  It is not enough to make out an “arguable case.”

The applicant’s argument is that the court erred in reviewing its own decision when it granted the employer the option to pay damages as opposed to reinstatement which it had previously ordered:

It is a principle of law that there must be finality to litigation.  The law also provides that the court cannot force an employer to employ particular persons.  But where the employer cannot be forced to employ, it must be made to pay damages and in casu, the court merely gave the applicants damages were the employer had refused or neglected to reinstate.  The court is unable to compel one person to employ against his will another as his servant.

It is trite that damages can be paid in lieu of reinstatement and the court granted the applicants the right to be paid damages in lieu of reinstatement.

It is for these reasons that I, on 6 April 2016, refused to exercise my discretion to condone applicant’s failure to comply with the rules. I gave the following order;

The application for condonation for late noting of an application for leave to appeal be and is hereby dismissed for the following reasons;

The explanation for delay is unreasonable.

The applicants do not enjoy good prospects of success on appeal.

Mbidzo, Muchadehama & Makoni, applicants’ legal practitioners

Messrs Manase & Manase, respondent’s legal practitioners