Nebeth Nyikadzino v NEC Agricultural Industry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/113/2021
HARARE, 3 JUNE 2021
CASE NO. LC/H/APP/246/20
AND 27 AUGUST 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/113/2021

HARARE, 3 JUNE 2021 					CASE NO. LC/H/APP/246/20

AND 27 AUGUST 2021

In the matter between:

NEBETH NYIKADZINO							APPLICANT

versus

NEC AGRICULTURAL INDUSTRY					RESPONDENT

Before The Honourable Manyangadze J

For the Applicant			: 	Mr W. Magaya (Legal Practitioner)

For the Respondent			: 	Mr J. Bakasa (Legal Practitioner)

MANYANGADZE J:

This is an application for condonation of late noting of an appeal. The application stems from the determination of a workplace Disciplinary Authority appointed in terms of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006, (the National Code), in terms of which the applicant was found guilty of misconduct and dismissed from employment.

I must point out, from the outset, that this is a matter that should not detain the court. In fact, the court was initially inclined to simply issue an order granting condonation, without having to write a full judgment. A brief history of the facts and circumstances leading to the application will show why the court was so inclined.

The applicant, who was employed by the respondent as an accountant, was found guilty of misconduct by a Disciplinary Authority appointed by the respondent in terms of the National Code. The Disciplinary Authority’s determination is dated 2 August 2018. It was received by the applicant on 3 August 2018.

The matter was referred as an appeal to a labour officer in terms of s 8 (6) of the National Code. The parties made submissions before the labour officer, who made a ruling in favour of the applicant on 15 March 2019.

Following the provisions of s 93 (5) (a) (b) the labour officer made an application for confirmation of his ruling by this court. Submissions were made before Chivizhe J, who reserved judgment. The judge however, called back the parties for further submissions, in light of the Supreme Court decision in Sakarombe & Another v Montana Carswell Meats (Pvt) Ltd SC 44/20, which was not yet available at the time the application for confirmation was heard. The Supreme Court judgment has clarified that labour officers have no jurisdiction in matters where a determination would have been made at workplace disciplinary proceedings.

In light of the aforesaid Supreme Court decision, CHIVIZHE J, on 26 August 2020, issued the following order:

“1.	The application filed under reference LC/H/LRA/148/19 be and is hereby struck off the roll.

2.	The proceedings before the Labour Officer M. T. Mapfaka be and are hereby set aside.

3.	The 1st Respondent in the matter is directed to file a proper application for condonation of late noting of an appeal with this Court.

4.	Such an application shall be filed within 10 days of the date of this order.

5.	There is no order as to costs.”

The effect of this order is to have the parties revert to the status quo ante i.e the position prior to the ruling of the labour officer, in terms of which the applicant remains dismissed as per the Disciplinary Authority’s determination. It is this determination the applicant intends to appeal against, and in respect of which he seeks condonation of the late noting of appeal.

The factors considered in an application for condonation are well established. The main factors are:

(i)	The length of the delay.

(ii)	The explanation for it.

(iii)	Prospects of success on the merits.

See:

Kombayi v Berkhout 1988 (1) ZLR 53

Bishes v Secretary for Education 1989 (2) ZLR 242

Kodzwa v Secretary for Health 1999 (1) ZLR 313

Mazvimbakupa v City of Harare HH 92/05

Given the background outlined above, it was clearly not the Applicant’s fault that an appeal against the Disciplinary Authority’s decision was not timeously lodged with this court. Both parties went through proceedings that saw them appear before a labor officer and a judge of this court. It is only after the law was clarified in the Sakarombo case, supra, that the applicant was directed to make the instant application.

Thus, there is no issue with the delay and the explanation for it. The respondent conceded as much during the hearing of the matter. The matter should, in my view, have ended there, with condonation being granted to allow the parties to ventilate the substantive issues in a fully contested appeal hearing.

The respondent insisted on its opposition to the application. The result was a hearing in which the only submissions made related to the merits of the matter. This almost converted what was meant to be an interlocutory application into a hearing on the substantive appeal, which is undesirable.

From the authorities cited above, the factors outlined are weighed against each other. Where the delay is inordinate and the explanation for it poor, condonation is granted only if the prospects of success on the merits are strong. It may in fact be denied regardless of the merits. The converse is true – where the explanation for the delay is reasonable, the prospects do not, on their own, become a critical deciding factor. In casu, the delay and the explanation for it have not been put in issue at all.

Be that as it may, the extensive submission made on the merits, contrary to denying condonation, actually justify granting it. The submissions disclosed pertinent issues that need to be ventilated in a full appeal hearing. These include;

Whether or not the applicant authored the document containing the allegedly confidential company information.

Whether or not the nature of the information released can be classified as confidential business data.

Whether or not the applicant was the sole and exclusive custodian of the information in question.

It is, in my view, not in the interests of justice that the matter be disposed of by way of an interlocutory application, when the parties’ submissions have raised these material issues. It is necessary that the parties be allowed to argue such issues for a proper determination of the appeal.

In the circumstances, it is held that the applicant has shown good and sufficient cause for the granting of the indulgence of condonation.

In the result, it is ordered that;

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

granted.

2.	The applicant shall file his notice of appeal within 10 days of the date of this order.

3.	Costs shall be in the cause.

Coghlan, Welsh & Guest. Applicant’s Legal Practitioners

Nyamayaro Makanza & Bakasa, Respondent’s Legal Practitioners