Peter Chisambiro v Zimbabwe Red Cross Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 24 SEPTEMBER, 2024
JUDGMENT NO LC/H/97/25 CASE NO
LC/H/693/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 24 SEPTEMBER, 2024 & 6

MARCH 2025

In the matter between:-

PETER CHISAMBIRO

ZIMBABWE RED CROSS SOCIETY

JUDGMENT NO LC/H/97/25 CASE NO LC/H/693/24

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Applicant	T. Nyakunika	Legal Practitioner

For the Respondent	Magaya	Legal Practitioner

KUDYA, J:

This is an application for condonation for late noting of an appeal and extension of time within which to file the appeal. The background of the matter is that applicant who was in the respondent’s employment as a National Training Centre Manager was brought before a disciplinary committee on allegations that he had sexually abused 2 of his subordinates who were female trainers with the respondent.

He was also accused of having performed his managerial duties in a manner that suggested incompetence or inefficiency to the detriment of the respondent’s affairs. Following the disciplinary hearing, he was found guilty and dismissed from employment. He was unhappy about his job loss so he appealed to the Labour Court against the guilty verdict and the dismissal penalty.

His appeal was challenged on the basis of seeking improper relief. Despite the respondent’s protesting about the improper relief, he went ahead to file heads of argument on the defective appeal. The heads were rejected by the IECMS system because they had been filed a day out of time. The appeal was therefore deemed abandoned.

Applicant consequently withdrew the appeal and decided to file this instant application where he seeks to now file a proper appeal and be heard on its merits. The respondent is opposed to the grant of condonation relief. Its attitude is that applicant has been casual in the prosecution of his appeal and that is consistent with the fact that he has a hopeless appeal. It therefore prayed that the application be dismissed with costs on a high scale for lack of merit.

The test for condonation is settled. See Jansen vs Acavalos 1993(1) ZLR216. Each of the tenets is discussed below:-

Excuse and extent of delay

Applicant is out by almost a year to appeal judging from the date when he filed the instant application. His excuse is that his lawyers were not diligent when they filed the 1st appeal on time. In particular, it is them who endorsed irregular relief on the appeal and it is also them who caused the late filing of heads of argument resulting in the abandonment and then withdrawal. He hastened to mention that all the infractions attendant on the appeal are technical as they are not dispositive of the matter.

It is granted that the applicant has that long history of sluggishness but that need to be viewed in the context of the case of Mapondera v Freda Rebecca Gold Mine SC81/22 where it was emphasised that matters should be concluded on merits and not on technicalities. The court notes that the improperly worded relief could be cured by a properly worded order by the court if one takes into account that a party’s draft order does not bind the court. It is the court which gives the order instead.

The question of the delayed heads could be settled by seeking condonation for late filing of heads. That again is not dispositive of the matter. The year delay is acknowledged but it need be noted that the condonation test is conjunctive. See Forestry Commission v Moyo 1997(1) ZLR254

The long delay can still be made up for by the prospects tenet and the rest of the condonation tenets.

Prospects/ Merits

The employer’s argument was that the applicant could not argue that he has merits yet he has not favoured the court with the record of proceedings to assess same. On the hearing date the applicant indicated that the employer was holding on to the record despite his request for the same. It took the court to make an order that such record be filed in the system so the excuse which the employer wanted to rely on was improper.

That being as it may, the employer eventually complied and filed the record in the system. A reading of that record demonstrates that there is indeed something that can detain the court on appeal. The evidence of the complainants as against that of the applicant has to be carefully analysed to assess whether indeed it can be said that the trier of fact acted in a grossly unreasonable fashion to determine the matter as it did See Hama vs NRZ 1996(2) ZLR664 for the test of appeals to the Labour Court

It need be observed that on the condonation level of the matter the court only needs to be satisfied that the matter has issues which the appeal court can engage with to decide on whether to uphold or dislodge the decision of the trier of fact. At this stage the court is not called upon to rule conclusively on the complete merits of appeal. In any event it cannot do so in the matter at hand when the record was only furnished after the court had asked about why it was not made part of the proceedings.

It is therefore imperative for the parties to demonstrate to the appellate court whether the decision complained about should stand or be vacated. As already indicated above the prospects scale in the case at hand is such that it is the kind of case where the appeal court can engage with the issues raised and conclusively rule on the merits of the matter. It thus passes the prospects test.

Finality to litigation, convenance of the court and importance of the case.

These tenets are discussed all at once as they are mainly offshoots from the principal tenets that is the excuse test and the merits test. In the case at hand finality to litigation can only be achieved when the appeal court puts closure to the diametrically opposed positions of the matter which led to the applicant’s job loss. It is therefore in the interests of justice that the appeal be determined on the merits. The case is important to both parties in that it gives closure on the issues which the parties are haggling over. It is convenient for the court to have the matter concluded on its merits than concluding it on a technical plane.

In the ultimate it is clear that the condonation application is merited as already discussed above.

On costs each party is to bear its own costs if regard is had to the fact that the employer was equally to blame when it held on to the record of proceedings which parties should have engaged with at the condonation level but could not do so because it had not been favoured to the employee by the employer. The application therefore succeeds with each party bearing its own costs.

IT IS ORDERED THAT;

Application for condonation for late noting of an appeal and extension of time within which to file the same be and is hereby granted with each party bearing own costs.

Applicant files his appeal within 10 days from the date of this order.

Thomas Nelson Attorneys		Appellant’s Legal Practitioners Coghlan, Welsh and Guest	Respondent’s Legal Practitioners