Marjorie Chanaiwa v Cotton Company of Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/129/2020
HARARE, 9 APRIL 2020
CASE NO. LC/H/APP/404/19
AND 5 JUNE 2020
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO. LC/H/129 /2020

HARARE, 9 APRIL 2020				           CASE NO. LC/H/APP/404/19

AND 5 JUNE 2020

In the matter between:

MARJORIE CHANAIWA						APPLICANT

AND

COTTON COMPANY OF ZIMBABWE LIMITED		RESPONDENT

Before The Honourable Chidziva J

For the Applicant			Mr J. Mutonono  (Legal Practitioner)

For the Respondent 			Ms R. Makumbe (Legal Practitioner)

CHIDZIVA J:

This is an application for condonation for late noting of an appeal against the decision of the Disciplinary Committee that was handed down on 24 May 2019. The Disciplinary Committee found the applicant guilty of all the three charges that were raised against her and she was dismissed from employment.

The brief facts of the matter are that.

(i)	The applicant noted an appeal against the decision of the Disciplinary Committee.

(ii)	The applicant later withdrew the appeal after the Respondent had raised some

preliminary objections.

(iii)	The time limit within which to appeal lapsed hence the application for condonation.

The applicant in her application has submitted that:

(i)	She has always been genuine in her desire to note an appeal.

(ii)	The preliminary points that were raised by the Respondent which caused her to

withdraw her appeal are that:

(a)	She had omitted the word “limited” when she cited the Respondent in the appeal.

(b)	She had also used form LC 3 in the appeal instead of using form LC 4 as provided

by SI 150/17.

(iii)	By the time she withdrew the appeal the time limit of 21 days within which she was supposed to lodge her appeal had lapsed.

(iv)	She also argued that she has strong prospects of success on appeal as shown by the grounds of appeal.

In response the respondent argued that;

(i)	The applicant delayed by 60 days and the negligence of a legal practitioner cannot

be used as a shield by a part employing the practical. The wrongs of a legal practitioner will always be imputed on the litigant.

(ii)	The applicant also took 20 days to withdraw the defective appeal.

(iii)	The applicant did not show that she has prospects of success on appeal.

The requirements to be proven in applications for condonation were stated in the case of Forestry Commission v Moyo 1997 (1) ZLR 254 as follows:

(a)	Inordinacy of the delay.

(b)	Reason ableness of the explanation for the delay.

(c)	Prospects of success.

(d)	Prejudice to the other party.

Guvava JA in the case of Dzvairo v Kango Products SC 35/17 also stated that:

“It is pertinent to note that it has been stated in a number of cases that a person seeking condonation … should give a reasonable explanation”

In the case of Kombayi v Berkout 1988 (1) ZLR 53 Korsah JA stated that:

“The broad principles the court would follow in determining whether to condone the late noting of appeal are: the extent of the delay; the reasonableness of the explanation for the delays, and the prospects of success. If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

The delay

The applicant has submitted that when she filed her appeal the Respondent raised some preliminary objections. By the time she withdrew the appeal the prescribed 21 days had expired. It was applicants’ explanation that the withdrawal was as a result of the errors which had been made by her lawyers. In the case of Saloofee & Anor NNO v Minister of Community Development 1965 (2) SA 135 at 141 it was stated that:

“There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the court. Considerations and misericordium should not be allowed to become an invitation to laxity.”

(The applicant) It has been argued that applicant has not explained why it took her 12 days to withdraw the matter. She has not explained why it took her 20 days to apply for condonation.

Applicant engaged an expert to deal with this matter. The expert knew the rules governing these applications. When objections were raised it is the lawyer who knew what was supposed to be done given the applicant’s interests. After withdrawal the lawyer knew what was supposed to be done.

In my view a delay of 53 days cannot be said to be inordinate. Applicant has also given a reasonably explanation for the delay. The delay cannot be said to be on the extreme side.

Prospects of Success

In the case of Mapfoche v State HH 438/18 it was stated that:

“The most critical factor rests on the prospects of success on appeal. I am mindful of the fact that although a judge dealing with such an application is not sitting in the appellate court per se but non the less is required to assess the prospects of success on appeal and not the success of the appeal. The proposed notice of appeal becomes very relevant in such consideration.”

The applicant in his founding affidavit as well as the notice of appeal has presented facts which if proven on appeal will prove the prospects of success on appeal. If applicant was not given the chance to respond to certain documents presented after the hearing but which were allegedly used to come up with a decision, then that decision could be wrong.

In the circumstances, I find that there are prospects of success on appeal. In my view the reason for the delay and explanation given for delaying if filing the application for condonation are reasonable.

In the circumstances I order that;

1.	The application for condonation be and is hereby granted.

2.	There shall be no order as to costs.

Chadyiwa & Associates, Applicant’s Legal Practitioners

Dube, Manikai & Hwacha, Respondent’s Legal Practitioners