Naison Makwanya v Telone (Private) Limited

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/313/24
HELD AT HARARE 17TH MAY 2024
CASE NO. LC/H/251/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17TH MAY 2024

AND 31 JULY 2024

In the matter between

NAISON MAKWANYA

And

JUDGMENT NO. LC/H/313/24 CASE NO. LC/H/251/24

APPLICANT

TELONE (PRIVATE ) LIMITED	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE , JUDGE.

FOR THE APPLICANT	: L.SEREMANI FOR THE RESPONDENT	: MS. N KATSANDE

MAKAMURE J:

This is an application for condonation for late filing an application for review. At the commencement of the hearing a preliminary point was raised on behalf of the respondent. I heard the preliminary issue raised and thereafter heard merits of the application and reserved judgment on both.

This is not the first time that a preliminary issue has been raised on behalf of the respondent. On 9 February 2024 this Court made an order striking this same matter off the roll for non - compliance with the rules of this Court. This followed a preliminary point which was raised on behalf the respondent. Another preliminary point has once again been taken on behalf of the respondent. The Court did not enquire as to why counsel for the respondent has adopted the attitude of raising preliminary issues in a piecemeal fashion. The respondent could have raised the present preliminary issue at the same time that the Court heard the other preliminary issue. The manner in which the respondent is raising preliminary issues is

therefore discouraged. It only prolongs the duration of litigation. There is need for finality to litigation. Ndebele v Ncube 1992 (1) ZLR 288 (S).

Preliminary Issue

The respondent raised a preliminary issue to the effect that the draft notice for review attached to this application is defective in that the Form LC5 is incomplete as it does not state the procedural rights of the respondent. It was argued that this draft will be the actual notice in the intended review application. It was submitted that under the circumstances the application is defective and ought to be struck off the roll.

In response Mr Seremani who appeared on behalf of the applicant conceded the point but asked the Court to condone this as this is a minor infraction of the rules and it does not prejudice the other party. It was further argued on behalf of the applicant that the purpose of a draft is to inform the Court of the intended review. It was further argued that the issue of compliance in the present matter is of a technical nature and that what was omitted can be captured in the actual review application. The Court ‘s attention was drawn to the provisions of R32 of the Rules of this Court ,2017 which empower the Court to depart from the rules in the interests of justice, fairness and equity. Reference was also made to the case of Edmore Mapondera and Fifty -Five Others v Freda Rebecca SC81/22 where the Supreme Court discouraged the Court from being embroiled in technicalities which may act as a barrier to industrial justice. The Court was urged to dismiss the preliminary issue.

In reply it was argued on behalf of the respondent that the error in not a condonable infraction. It was argued that failure to read procedural rights is not minor and it cannot be said that the other party would not suffer any prejudice. The Court was referred to the cases of Zimbabwe Open University v Mazombwe 2009 (1)ZLR (H) and Muranga v Linde

HMA 34/22 .It was submitted that the applicant was required to comply with peremptory provisions of the rules. The Court was urged to strike the matter off the roll.

In the case of Edmore Mapondera and Fifty Five Others v Freda Rebecca Gold Mine Holdings Limited (above) the Supreme Court had this to say:

‘[23]	In Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor MATHONSI JA had occasion to make similar remarks when he said:

“This is a court of justice which is required to resolve the real issues between the parties. It

should not dabble too much into small technicalities.”

[24]	It is therefore clear from the authorities that the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.’

Rule 32 of the Rules of this Court provides as follows :

‘32. Departure from rules

At any time before or during the hearing of a matter a Judge or the Court may—

direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the Judge or Court is satisfied that the departure is required in the interests of justice, fairness and equity;

give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the Judge of the Court to be just, expedient and equitable.’

Rule 22 of the Rules of this Court requires that an application for condonation be accompanied by a draft of the intended notice of appeal or review.

After considering the documents and argument it is not disputed that the draft notice does not articulate the procedural rights of the respondent. However, this is a draft. What is under consideration is an application for condonation to enable the application for review to be considered. Since it is a draft , the point has been made that the applicant intends to make an application for review. This Court will not scrutinize the grounds as if it was considering the review application. The reason for attaching a draft is to show the Court that there is actually an intention to make such an application. There is therefore substantial compliance . For this reason, I am in respectful agreement with what the Supreme Court said in the Mapondera case (above). I am also of the view that this is a case where the Court can invoke the provisions of R32 in the interests of equity. By invoking provisions of R32, the Court is not condoning non-compliance but is acting within its rules and ensuring finality to litigation.

Zimbabwe Platinum Mines (Private) Limited v Marko Phuti SC21/16. In the circumstances the preliminary point is dismissed. It is accordingly so ordered.

Merits

It is trite that in order for an application of this nature to succeed, the applicant must explain , among other things, the extent of the delay in seeking condonation, the reasonableness of the explanation and the prospects of success on the merits should the application be granted.

Viking Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited 1998(2) ZLR 249(S).The applicant has articulated these requirements ,with authorities, in his heads of argument.

In the founding affidavit the applicant states that the delay was that after filing the application he was only advised through his lawyers that the application had been considered in chambers and struck off the roll. Another application was filed and once again it was struck off the roll. It will be noted that yet another preliminary issue has been raised and this could have been upheld leading to the matter being struck off the roll once again. All this has compounded the delay in having the merits of the application being considered. Thus, accepting that the applicant has always been desirous of prosecuting the matter and that had issues not arisen from the very first time that the matter was considered , the application  might as well have been heard to finality. This in my view explains both the extent of the delay and the reasons for such delay. This does not however mean that the Court condones what the applicant considers to be minor infractions of the rules. Non-compliance with the rules is totally discouraged. The Court however , in its discretion has invoked provisions of R32 in the interests of equity in order to ensure finality to litigation.

The applicant must satisfactorily explain the prospects of success on the merits should the application be granted. The applicant stated in his affidavit that he was denied his constitutional right to legal representation. This appears not to be disputed .The background  is that at the commencement of the disciplinary proceedings the applicant did not have legal representation. After two sittings and after the hearing had substantially progressed, the applicant requested that he be granted a postponement so that he could enlist the services of a representative. This request was denied on the basis that the hearing was nearing finalization and also because the applicant himself was not in a position to advise the hearing committee as to the timeframe which he required in order to secure the representation before the matter could proceed. For that reason, the committee could not postpone the matter indefinitely.

Hence it proceeded with the hearing. He also says the committee lacked jurisdiction to hear the matter after his representatives abandoned the hearing. I think it would be inappropriate

for the Court at this juncture to probe further into the reasons why his representatives abandoned the hearing since what is before me is an application for condonation. It is my considered view that the applicant has raised issues which can only be canvassed in the application for review. For this reason, the application succeeds.

In view of the foregoing, is ordered that:

The application for condonation for late filing of an application for review be and is hereby granted.

The applicant is granted ten (10) days from the date of this order within which to file the application for review.

There is no order as to costs.

J.MAMBARA &PARTNERS, APPLICANT’S LEGAL PRACTITIONERS. MAGUCHU&MUCHADA, RESPONDENT’S LEGAL PRACTITIONERS.