Nelson Sihlahla v Murowa Diamonds (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/53/2021
HARARE, 25 NOVEMBER 2020
CASE NO.
JUDGMENT NO. LC/H/53/2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/53/2021

HARARE, 25 NOVEMBER 2020		                CASE NO. LC/H/APP/57/20

AND 21 MAY 2021

In the matter between:-

NELSON SIHLAHLA					Applicant

And

MUROWA DIAMONDS (PVT) LTD			Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Ms R.R. Mutindindi (Legal Practitioner)

For Respondent		Mr W. Magaya (Legal Practitioner)

CHIDZIVA, J:

This is an application for condonation for late filing of an application for Review and Appeal against the decision by the Respondent to dismiss applicant from employment.

The brief background of the matter is that;

The applicant was employed by the Respondent as an Artisan.

In January 2019 he was charged with wilful disobedience of a lawful order. He appeared before the disciplinary committee on the 16th January 2019 and he was dismissed from employment on the 29th of January 2019.

He then appealed to the internal appeals committee which upheld the decision of the disciplinary committee.

Applicant then filed an application for review and appeal to this court on the 11th of March 2019.

The applicant then withdrew the appeal and application for review after assessing the opposition filed by the Respondent.

Applicant then approached the Ministry of Labour where he was advised that he had approached the wrong forum because he was supposed to approach the Mining Industry National Employment Council.

Upon approaching the NEC on the 20th of November 2019 he was advised that it had no jurisdiction to deal with the matter.

The case of Kombayi vs Berkout 1988 (1) ZLR 53 stipulated the principles to be followed in applications of this nature as follows;

“The broad principles the court will follow in determining whether to condone the late noting of an appeal are therefore the extent of the delay, the reasonableness of the explanation for the delay and the prospects of success. If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

Extend of the delay and reasonableness of the explanation for delay

The applicant had filed her appeal and Review application to this court by the 11th of March which was well within time. He then withdrew it and later brought it back to court 8 months later. He argues that the delay is not inordinate as he was pursuing the wrong forums upon the advise of his legal practitioner. On the other hand the Respondent argues that the applicant willingly withdrew his appeal and review. The Respondent further argued that the applicant cannot escape the consequences of the lack of diligence on the part of his on her legal practitioner.

In the case of Kadungure v Kadungure SC 19/07 it was held that legal practitioner should take the court rules seriously. It was also held that it is the duty of the legal practitioner to his client to ensure that he is well versed with the Rules of the court in which he is to appear. Therefore withdrawing the matter on the advice or suggestion of the other party does not make sense.  Further on moving from one forum to another clearly shows lack of diligence on the part of applicant’s legal practitioner. Bhunu JA in the case of Ilasha Mining (Pvt) Ltd v Yatakala Trading (Pvt) Ltd T/A Viking Hardware Distributors SC 61/18 also stated that there is need for a supporting affidavit from the former offending legal practitioners if a party is to be granted condonation. In this case there is none and there is no explanation for that.

Prospects of Success

The applicant was charged with leaving the mine site very well knowing that he did not have permission to go off. During the hearing the applicant indicated that he was aware that no one should leave the mine site without authority. He had even written an e-mail challenging this issue. In the circumstances the Respondent’s findings cannot be faulted since there was evidence to prove the charge.

In so far as the application for review is concerned applicant did not clearly state the procedural irregularities that warrant the vitiation of a finding. The evidence adduced proved the charge that was laid against him. Therefore there are no prospects of success on review and appeal.

In the circumstances this court finds that the appeal and application for review are unmerited.

It is therefore ordered that the application for condonation be and is hereby dismissed with costs.

Caleb Mucheche & Partners Law Chambers, applicant’s legal practitioners

Coghlan, Welsh & Guest, respondent’s legal practitioners