Munyaradzi Samapundo v Proton Bakery

### Preamble
JUDGMENT NO LC/H/108/2014
HARARE, 24 JANUARY 2014
CASE NO LC/CON/H/46/2013
28 FEBRUARY 2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/108/2014

HARARE, 24 JANUARY 2014 &		CASE NO LC/CON/H/46/2013

28 FEBRUARY 2014

MUNYARADZI SAMAPUNDO				APPLICANT

Versus

PROTON BAKERY						RESPONDENT

Before The Honourable R FManyangadze   :	Judge

The Applicant in Person

For the Respondent	T M Rugoho (Human Resources Manager)

MANYANGADZE J:

This is an application for condonation of late noting of appeal.

The applicant was dismissed from employment on 24 September 2010 after the respondent’s disciplinary committee found him guilty of misconduct. He had been charged with misconduct in terms of s 4 (a) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006. The applicant had used a cellphone in the factory where bread is produced, in violation of the respondent company’s standing instruction which stated:

“… use and carriage of cell phones in the production and despatch area is prohibited, this is to avoid production interruptions and endangering others during production.”

The applicant appealed to the National Employment Council against the dismissal. He lodged the appeal with the Designated Agent for the National Employment Council (“NEC”) on 22 August 2011, eleven months after his dismissal. The NEC Designated Agent dismissed the appeal, on the basis that it was filed out of time. The applicant was supposed to lodge his appeal within seven days of the Disciplinary Committee’s decision.

The NEC decision is dated 13 December 2012.

On 3 May 2013, the applicant filed an application for condonation of late noting of appeal in this court. He was supposed to note his appeal within twenty-one days from the date of receipt of the NEC decision, in terms of the Labour Court Rules.

Factors to consider in an application for condonation for non-compliance with the court’s rules were well set out in the case of Mazvimbakupa v City of Harare HH-92-2003. They include, inter alia:

The degree of non-compliance with the rules;

The explanation thereof;

The prospects of success on the merits.

In the instant case, the delay adds up to five months. There is therefore a high degree of non-compliance with the rules.

In his Founding Affidavit, para 5 thereof, the applicant avers that he was not advised of the seven day time limit provided for in SI 15 of 2006, within which to appeal to the NEC. That is the only point in the applicant’s papers touching on the reasons for the delay. It will be noted that he is addressing the delay in filing his appeal with the NEC. There is no mention of the delay in this court. As already indicated, the NEC delay was eleven months. This is what he is at pains to explain. Even that explanation is wholly inadequate, given the length of the delay. He first says he was advised of his right to appeal to the Ministry of Labour or the NEC, as provided for in S I 15 of 2006. He then goes on to say he was not told the appeal must be filed within seven days.

During submissions in the hearing, it was pointed out that the applicant was a member of the Baking Industry Trade Union. In fact, at the disciplinary hearing, he was represented by that Union. Having been aggrieved by the dismissal, and properly advised he could appeal, it is baffling he stayed at home for the next eleven months, doing nothing about it. He cannot seriously argue the reason for such inaction was that he was not advised he had seven days within which to appeal.

When he eventually appealed, nearly a year later, his appeal was dismissed on the basis that he did not file it within the required seven days. Incredibly, he waited another five months before noting an appeal to the Labour Court. One would think he would have learnt his lesson, and avoid making the same mistake. In his papers, he tried to explain the eleven months delay. It is as if he was asking the court to condone the earlier delay, and not making an issue of the subsequent delay.

Noticing this gap in his papers, the court asked him to address it on the delay in noting an appeal in this court. Again, he averred that he was not advised about the applicable time frames. This explanation is difficult to accept, coming from someone who had his trade union representatives, and who had once suffered the misfortune of having his appeal dismissed for being out of time.

The court has a discretion on whether or not to condone non-compliance with its rules, in terms of r 26 (a) of the Labour Court Rules. It hasa fairly wide latitude in the exercise of this discretion. The latitude, however, cannot be stretched too wide. There must be a satisfactory basis upon which it is exercised. The applicant has proffered no satisfactory explanation for his repeated and inordinate delays. The court needs to safeguard the integrity of its own rules and procedures. They may be rendered meaningless if they are disregarded willy-nilly, with those disregarding them looking forward to condonation as a mere formality.

The applicant cannot hide behind the fact that he is a lay person. During the hearing, he was reasonably articulate, appeared to appreciate the issues at stake, and did not cast the impression of a simple and unsophisticated litigant.

Having regard to the inordinate delays, the applicant, in my view, is not a deserving candidate for condonation. He struck me as one of those litigants who show little interest in the prosecution of their cases. It seems to me one of those unfortunate and classical instances where the principle in the case of Ndebele v Ncube 1992 (1) ZLR 288 applies. In that case, it was pointed out that the law helps the vigilant and not the sluggard.

The delays in the two instances were inordinate. That means the degree of non-compliance was gross. There was no reasonable explanation. In fact in respect of the second instance, which is the application before this court, the applicant’s papers contain no explanation at all for the delay. In Mashave v Zimbabwe United Passenger Co Ltd &Anor 1998 (1) ZLR 567, condonation of late filing of an application for review by the respondent company’s workers who had been retrenched, was dismissed, mainly on the basis of a fifteen months delay in bringing the application. The court had this to say about the delay, and the onus that lay on the applicants to explain the delay, at page 572:

“The applicant himself has not advanced any explanation for the delay. It has been left to his new counsel to raise the point in argument. That argument presupposes that this court should deduce the facts for the explanation from the inferences to be drawn from the papers and then test the reasonableness of the explanation from those facts. That is unacceptable. The onus is on the applicant. He must set out the facts on which he asks the court to exercise its discretion in his favour. If he does not do so, it is not for the court to search out or infer possible explanations from other facts in the papers”.

The delay even overshadowed the aspect of prospects of success on the merits, prompting the court to remark at page 573:

“The delay in proceeding with this application has clearly caused prejudice to United. For fifteen months it has worked on the basis that Mashave has been lawfully retrenched. Its affairs have been so organised. Mashave has now come forward, at a late stage and without proper explanation for the delay, seeking the aid of the court to set all that aside. The disadvantage and prejudice to United is obvious and is not outweighed by any of the arguments raised by Mashave.”

The applicant in casu has clearly failed to discharge the onus resting on him. As already indicated, the delays were inordinate, totalling 16 months and there was no proper explanation thereof.

The application for condonation cannot, in the circumstances, be upheld.

It is accordingly ordered that:

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

Each party shall bear its own costs.

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MANYANGADZE J