Michael Mamina v CaFCA Limited

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/239/24
HELD AT HARARE 3RD JUNE 2024 AND
CASE NO LC/H/230/24
In the matter between
MICHAEL MAMINA
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 3RD JUNE 2024 AND

In the matter between

MICHAEL MAMINA

APPLICANT

And

CAFCA LIMITED

RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE.

FOR THE APPLICANT : H. MUPONDI
FOR THE RESPONDENT: W. MAGAYA

MAKAMURE J:

This is an application for condonation of late filing of an application for reinstatement of an appeal. It is opposed.

At the commencement of the hearing a preliminary point was raised on behalf of the respondent. That preliminary point will therefore be determined first.

The preliminary point raised was that the applicant’s claim has prescribed.

The facts of the matter which appear not to be in dispute are as follows. The applicant was dismissed from the respondent’s employ on 8th December 2020. He appealed internally. His appeal failed and he was advised of this on 18th December 2020. On 30th December 2020 he filed a notice of appeal with this Court. He however did not serve the respondent with such notice. This means that the respondent was not aware of the intended appeal. There is no proof of service on record. The said appeal was deemed abandoned for failure to file a certificate of service. It is not known as to when the abandonment occurred. It is against this background that the application for condonation of late application of reinstatement of appeal is being made.

Mr Magaya who appeared on behalf of the respondent argued that the matter has prescribed both in terms of S94 of the Labour Act, Chapter 28:01 (the Act) and provisions of Rule 19(1) (e) of the Rules of this Court Statutory Instrument 150/2017 as well as in terms of provisions of S19(2) of the Prescription Act Chapter 8:11. Mr Magaya argued that the failure by the applicant to serve the notice of appeal on the respondent means that there never was an appeal. What the applicant did on 30th December 2020 was an attempt to appeal and further that as far as the respondent is concerned, they are only aware of the current application. Mr Magaya further argued that the question of prescription is governed by statute and as such the Court cannot exercise any discretion. That being the case, it was submitted that there is nothing to reinstate. In the circumstances it was submitted that the application ought to be dismissed. Mr Magaya referred the Court to the case of **Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999(1) ZLR 41** and other authorities in support of his submissions.

In response Mr Mupondi who appeared on behalf of the applicant conceded non-compliance with the statutory provisions. He went on to argue that there were circumstances peculiar to the present application. The circumstances were that there was the Covid-19 pandemic. This disabled the applicant from making proper follow-ups with the Court. Further Mr Mupondi argued, the applicant’s erstwhile legal practitioners were placed under curatorship and this affected the prosecution of the matter. This is why the applicant was not aware that the other party was never served. Had he known asserted Mr Mupondi, he would have done it himself. Mr Mupondi was however not able to furnish the Court with any documentary evidence either from the concerned legal practitioners or from the Law Society in support of his assertions. Mr Mupondi also argued that the applicant has got a right to be heard. Failure to be heard submitted Mr Mupondi, would prejudice the applicant.

In reply Mr Magaya submitted that in view of the respondent’s failure to comply with the statutory provisions, prescription was never interrupted and the matter has therefore prescribed. Mr Magaya argued with respect to the applicant’s right to be heard that prescription did not take away the applicant’s right to be heard but that it only restricted it to the two-year period which is stipulated in the Act.

After listening to the parties, I now turn to the law.

Rule 19(1)(e) provides as follows:

‘19. Appeals and cross appeals

(1) A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following—

(a) …

(b)…

(i) …

(ii) …


(iii)…

(iv)…

(c) …

(d) …

(i) …

(ii) …

(iii) …

(e) serve one copy of the notice of appeal, together with a copy of the documents, if any, referred to in paragraph (b), on the respondent within ten days of; and

(f) …’(My underlining for emphasis).

AND

s92(1) and (2) of the Act provide as follows:

94 Prescription of disputes

‘(1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless—

(a) it is referred to him; or

(b) has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.
 (2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.’

While S92 of the Act refers to disputes to be dealt with by labour officers, I believe the period of prescription holds true for any labour dispute.

S19 (1) and (2) of the Prescription Act provide as follows:

‘19 Judicial interruption of prescription

(1) In this section—

“process” includes—

(a) a petition;

(b) a notice of motion;

(c) a rule nisi;

(d) a pleading in reconvention;

(e) a third party notice referred to in any rule of court;

(f) any document whereby legal proceedings are commenced.

(2) The running of prescription shall, subject to subsection (3), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.’(My. underlining for emphasis).

In terms of the Prescription Act, service of a document on a debtor interrupts prescription. In the present case, the notice of appeal was not served on the respondent. Equally R19(1)(e) of the Rules requires that service of process be made on the respondent in order for an appeal to be valid. The Act provides that a dispute shall be entertained within two years from the date when the dispute or unfair labour practice arose. The applicant’s dispute with the respondent arose in December 2020. The present application was filed in 2024. This was long after the expiry of two years.

In **Conju Incorporated (Private) Limited v Registrar of the Supreme Court and Three Others SC28/20** the Supreme Court stated that:

‘The legal principle governing applications for reinstatement of appeals is now settled in this jurisdiction. It is that in an application for the reinstatement of an appeal that was regarded as abandoned and deemed to have lapsed the applicant must show good cause for the default. In doing so, the applicant is required to satisfy the court firstly, that he or she has a reasonable explanation for the delay in question and secondly, that his or her prospects of success on appeal are good.’

In the present matter the intended appeal was never served on the respondent. The respondent was therefore not aware of the appeal or intended appeal. This being the case prescription was never interrupted. The dispute has therefore prescribed. The date of abandonment is not known. Thus, the reasonableness or otherwise of the delay has not been explained. I therefore agree with Mr Magaya that there is nothing to reinstate.

In view of the foregoing, it is ordered that

1. The application for condonation of late filing an application for reinstatement of an appeal be and is hereby dismissed.

2. There is no order as to costs.

**MACHEYO LAW CHAMBERS, APPLICANT’S LEGAL PRACTITIONERS.**

**COGHLAN WELSHAND GUEST, RESPONDENT’S LEGAL PRACTITIONERS.**


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