Muchaparara Ngondonga v Mbizi Game Park

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/308/24 HARARE 29 MAY, 2024
CASE NO LC/H/281/24
AND 17 JULY, 2024
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/308/24 HARARE 29 MAY, 2024		CASE NO LC/H/281/24

AND 17 JULY, 2024

In the matter between:

MUCHAPARARA NGONDONGA		APPLICANT MBIZI GAME PARK	RESPONDENT

Before the Honorable Hove, Judge:

For Applicant	L Seremani (Legal Practitioner) For Respondent	(Legal Practitioner)

HOVE, J: INTRODUCTION

This is an application for condonation for late noting of an appeal and extension of time within which to file the appeal. This application is opposed.

BACKGROUND FACTS

The applicant was employed by the respondent as an operations manager. Sometime in April 2021, the applicant was arraigned before a disciplinary committee over allegations of misconduct particularly that he had contravened Section 4 of the National Employment Code of Conduct which is; for any act, conduct or omission inconsistent with the fulfillment of the express or implied conditions of the employee’s contract of employment after having demanded books of accounts from one Mellisa Chikara and Sharon Jackson. The applicant was found guilty and subsequently dismissed from employment in May 2021. The applicant then appealed to the Labour Court and the appeal was struck off the roll by Honourable Murasi J in May 2022 because of a defective  notice  of  appeal.  The  applicant  then  filed  an  application  for  condonation  before

Honorable Kudya J and the same was withdrawn by the applicant for a defective notice of appeal hence the present application for condonation.

ISSUES FOR DETERMINATION

Whether or not the degree of non-compliance is inordinate?

Whether or not there is a reasonable explanation for the delay?

Whether or not there are prospects of success on appeal?

APPLICATION OF THE LAW TO THE FACTS

In Zimslate Quartize (Pvt) Ltd and Ors vs Central African Building Society SC 43-17, the court held that:

“An applicant who has infringed the rules of the Court before which he appears must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences including that of condonation are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

The requirements for an application for condonation were captured in the case of Kombayi v Berkout 1988 (1) ZLR 53 wherein the court listed them as follows:

The extent of the delay

The reasonableness of the explanation for the delay

The prospects of success

In the case of KM Auctions (Pvt) Ltd vs Adencish Samuel and Registrar of Deeds SC 15-12,

the court held that:

‘It is trite that in considering an application such as this, the court will amongst other considerations, consider the following factors:

The degree of non-compliance

The explanation for it

The importance of the case

The prospects of success

The respondent’s interest in the finality of the case

The convenience of the court

The avoidance of unnecessary delay in the administration of justice.’

Further in Maheya vs Independent African Church SC 58-07, the court reiterated the same principle in the following terms:

‘In considering applications for condonation of non-compliance with its rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that maybe considered and weighed one against the other are the degree of non-compliance, the explanation thereof, the prospects of success on appeal, the importance of the case, the convenience to the court and avoidance of unnecessary delays in the administration of justice.’

The degree of non-compliance

The applicant delayed with 21 months. In my view, this delay was inordinate as seen in the case

Bishi vs Secretary for Education 1989 (2) ZLR wherein the court held as follows:

‘The degree of non-compliance with the requirements of the rules in his case is considerable. A review has to be commenced within 8 weeks. In the present case about 18 months elapsed after the review should have been launched. A delay of 18 months is clearly inordinate.’

In casu, the appellant has delayed with a period of 21 months. In my view, this delay is too long and hence inordinate. However, this requirement is not considered independently of all the other requirements. In the case of Melane v Santam Insurance Co.Ltd 1962 (4) SA 531, it was held that,

“ordinarily these facts are interrelated, they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation”

The reasonableness of the explanation

In the case of Lunat vs Patel SC 47-22, Chatukuta JA held that:

‘A party seeking condonation and extension of time must satisfy the court that a valid and justifiable reason exists as to why compliance did not occur and why non compliance should be condoned. Further, regardless of the prospects of success, a court may decline to grant condonation where it considers the explanation for failure to comply with the rules unacceptable.’

The applicant has submitted that he failed to comply with the Rules because he was looking for fees to engage a legal practitioner.

In the case of Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and others (2010) 31 IJL 1413 (LC) at para 13 it was held that;

“in explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the Court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events

which took place during the period in question without an explanation for the time lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be”

In Du Plessis v Wits Health Consortium (Pvt) Ltd [2013] JOL 30060 (LC) at para 16 the Court held as follows;

“it is clear from the above and other judgements that a claim of lack of funds on its own  cannot constitute reasonable explanation for the delay. In other words, when pleading lack of funds as the cause of delay, the applicant needs to provide more than a mere claim that the reason for the delay is lack of funds. In this respect the applicant has to take the court into his or her confidence in seeking its indulgence by explaining when, not only that he or she finally raised funds to conduct the case, but also how and when did he or she raise those funds. The ‘when’ aspects of the explanation are important, as it provided the Courts with information as to whether there was any further delay after raising the funds and whether an explanation has been provided for such a delay.”

These two authorities are not Zimbabwean case authorities but they are persuasive. A full explanation is indeed necessary to enable the Court to properly consider the reasonableness of the explanation. The Court will not be in a place to properly exercise its discretion on whether or not the explanation is reasonable. I am therefore persuaded by the two authorities and find that the applicant has in casu failed to take this Court into his confidence in seeking its indulgence by providing a detailed explanation as required from the above authorities. The necessary detail is not provided in respect of when the funding was requested, when it was obtained and from whom it was obtained etc.

In any event, the further explanation that he had initially filed a defective notice and as a result he was now seeking legal advice is not explained fully seeing that he had the advice of a seasoned Labour Practitioner, a Trade Unionist. The Court and the respondent are not told of what specific advice the applicant was seeking, when, and from whom he obtained such advice.

The prospects of success

In the case of Essop vs S 2016 ZASCA 114, the court in defining the prospects of success held as follows:

‘What the test for reasonable prospects of success postulates is a dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore the appellant must convince the court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorized as hopeless. There must, in other words, be a sound rational basis for the conclusion that there are prospects of success on appeal.’

In the case of Unki Mines (Private) Limited vs Dohne Construction Private Limited SC18-23,

the court held that:

‘The applicant has the obligation to satisfy the court that once an application for condonation is granted, it has prospects of succeeding on the merits of the matter. These prospects need to be explained in depth in order to convince the court to grant the application. The applicant failed to convince the court to advance a case upon which its prospects of success can be assessed.’

In casu, the submissions before this honorable court show that indeed the appellant actually admitted to committing the misconduct laid against him. The applicant admits that he requested for the financial reports because he wanted to be able to prepare his reports. This conduct of requesting for the financial reports was outside his duties and thus he contravened Section 4 of the National Employment Code of Conduct as laid against him. This admission clearly shows that the applicant has no prospects of success on appeal because the finding that he acted outside the corners of his contract does not amount to a gross misdirection by the disciplinary committee.

It is my view that the applicant has failed to satisfy the requirements of an application for condonation. The applicant has been fully honest with the court regarding the reason why he delayed with filing of the appeal. He has also not taken the Court into his confidence and has no prospects of success on appeal.

In the result, the application must fail.

Disposition

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

Each party shall bear its own costs.