Memory Marimira v Buhera Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/750/2014
HARARE, 19 SEPTEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/750/2014

HARARE, 19 SEPTEMBER 2014	              CASE NO. LC/H/APP/205/14

AND 07 NOVEMBER 2014					  LC/H/733A/12

In the matter between

MEMORY MARIMIRA						Applicant

And

BUHERA RURAL DISTRICT COUNCIL 			Respondent

Before The Honourable P. Muzofa, Judge

For Applicant	-	J. Chaka (Trade Unionist)

For Respondent	-	T. Mukwindidza (Legal Practitioner)

MUZOFA, J:

This is an application for leave to appeal to the Supreme Court.  The respondent raised an preliminary point that the application is improperly before the court in the absence of an application for condonation.

The applicant noted an appeal to this court which was dismissed.  The court made an ex-tempo ruling on the 4th of June 2013.  A written judgment was handed down on 14 June 2013.  This application was made on 6 June 2014 exactly twelve months after the judgment was delivered.

Rule 36 of the Labour Court Rules clearly sets out the time within which an appeal  in terms of section 92E (2) of the Labour Act should be made.  The section provides

“An application in terms of section 92 E (2) of the Act seeking leave to appeal from any decision of the court shall be made to the President of the Court who made the decision within 30 days from the date of that decision.”

Surely it is as clear as water that applicant has failed to comply with the rules of this court.  For some reasons unknown applicant did not even seek to make an application for condonation for the late noting of the application.  Instead the applicant sought to give an explanation for the delay.  This is undesirable.  The court rules were put in place to ensure smooth processing of cases.  Where a litigant has failed to comply with such rules, the door to exercise his rights is not closed.  There is an avenue to right the wrong through an application for condonation.  However where a litigant flagrantly decides not to seek the court’s indulgence such indulgence cannot be extended.  Where an application is not brought within the time specified in the rules an application for condonation must be sought see generally Forestry Commission v Moyo 1997 (i) ZLR 254 (SC).

Both parties delved into issues when the applicant became aware of the written judgment.  In my view the court cannot decide on that issue since it is improperly before the court.  These are issues that are canvassed in the application for condonation.  There was no application for condonation before the court.  What was before the court was an application in terms of section 92E (2) of the Act.  The said application prima facie was made twelve months after the judgment being sought to be appealed against was made.

Respondent requested for costs de bonis propriis on account that the applicant in the face of clear rules opted to make an improper application.  I agree with the respondent that for such arrogance against clear facts, this is a suitable case to award costs de bonis popriis.

I therefore make the following order.

The application being improperly before the court be and is hereby struck off the roll with costs de bonis propiis.

MESSRS BERE BROTHERS, Respondent’s legal practitioners