Ocean Machokoto v Murowa Diamonds

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/657/2013
HARARE, 15 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/657/2013

HARARE, 15  NOVEMBER 2013	    		            CASE NO. LC/CON/H/70/13

AND 06 DECEMBER 2013

In the matter between:-

OCEAN MACHOKOTO					Applicant

And

MUROWA DIAMONDS					Respondent

Before The Honourable F.C. Maxwell,: Judge

For Applicant			R. Zvimba (Legal Practitioner)

For Respondent			T. Sibanda  (Legal Practitioner)

MAXWELL J.;

This is an application for condonation for late filing of an application for review.  Applicant seeks to be condoned because

As a self actor he was not aware of the time limit within which to file an Application for Review.

He had filed a notice of appeal out of time LC/H/114/12 on 27 February 2012.  The appeal was withdrawn by his legal practitioners as it was defective.

This legal practitioner filed another notice of appeal under case number LC/H/143/12 also out of time.  They subsequently withdrew it.

He was advised by his legal practitioners that an application for review was appropriate but needed condonation since he was out of time.

His late filing was neither willful nor deliberate as he is a lay person and only got to know of the Court procedures and time limit after seeking legal counsel.

The Applicant contends that he has prospects of success as Respondent flouted procedure and violated the audi alteram partem rule.

Respondent opposes the application on the basis that:

Applicant sought legal advice on or before 8 March 2012.  The present application should have been filed around that time.

There is no explanation as to why Applicant’s legal Practitioners took more than twelve calendar months to file this application after Applicant engaged them.

There is no merit in the review application as the disciplinary hearing was conducted properly and the Applicant was afforded all the opportunity to defend himself.

It is pertinent to note that it has been stated in a number of cases that a person seeking condonation should give a reasonable explanation, not only for the delay in applying for appeal or review, but also for the delay in seeking condonation.

see Ganda and 13 others v First Mutual Life Assurance Society SC 1/05.

Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135.

The Supreme Court has held that

“Condonation is an indulgence which may be granted at the discretion of the Court.  It is not a right obtainable on demand.  The applicant must satisfy the Court/judge that there are compelling circumstances which would justify a finding in his favour.  To that end it is imperative that an applicant for condonation be candid and honest with the Court.

Certain criteria have been laid down for consideration by a court/judge in order to assist it in the exercise of its discretion.  Among these are, the extent of the delay and the reasonableness of the explanation therefore, the prospects of success an appeal, the interest of the Court in the finality of judgments and the prejudice to the party who is unable to execute his judgment.  The list is not exhaustive.”

Per Ziyambi JA in Paul Gary Friendship v Cargo Carries Limited and Another SC 1/2013.

Applicant has not proffered a reason for the delay of more than twelve calendar months to approach this Court.  Counsel for Applicant conceded that the degree of the delay was quite high.  Only a chronology of blunders by the legal practitioners was given, that, the Court finds unacceptable.

For instance in explaining the reason for the delay counsel for Applicant submitted that:

“There was another appeal under LC/H/143/12 which was prepared at our offices by another legal practitioner who was handling the matter then.  It was never served on Respondent.  The appeal was consequently withdrawn after I personally realized that the crux of the matter was procedural irregularity and therefore review was appropriate.  I proceeded to file the present application to file review out of time.”

The papers filed of record reveal that the grounds for review give notice that:

“Appellant hereby appeals against the whole decision ……..”

and further that

“…the Appellant’s grounds of appeal below shall be used in support of this appeal”

The submissions for Applicant are silent as to why having engaged legal practitioners Applicant did not approach the Court for a period in excess of twelve months.  That conduct cannot be condoned.

As far as prospects of success are concerned Applicant alleges procedural irregularities for the hearing before the disciplinary committee held on 2 February 2012.  In my view that approach is bound to fail.  Applicant appealed to the Appeals Committee and a determination was given on 17 February 2012.  Accordingly what Applicant should be challenging before this Court are the proceedings before the Appeals Committee.  I am not satisfied that there are any prospects of success in these circumstances.

Accordingly the application must fail.  Counsel for Respondent urged the Court to grant costs on a higher scale de bonis propiis.  I am not persuaded that this is warranted.  However a case for the award of costs has been made.

Wherefore it is ordered that:

The application for condonation of late filing of application for review, being without merit, be and is hereby dismissed with costs.