Pias Nago v Pungwe Breweries and Marketing (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/MC/2/14
HELD AT HARARE ON 24TH JANUARY, 2014
CASE NO. LC/MC/29/10
AND 31st JANUARY, 2014
JUDGMENT NO. LC/MC/2/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/MC/2/14

HELD AT HARARE ON 24TH JANUARY, 2014   CASE NO. LC/MC/29/10

AND 31st JANUARY, 2014

In the matter between:-

PIAS NAGO								Applicant

And

PUNGWE BREWERIES AND

MARKETING (PRIVATE) LIMITED				Respondent

Before the Honourable G. Mhuri, Judge

For Applicant	: E. Mandipe(Organising Secretary

Zimbabwe Catering Workers Union)

For Respondent: T. Mukwindidza(Legal Practitioner)

MHURI J.:

On the 30th January, 2013 this Court dealt with an application for quantification of damages, the judgment which was delivered on the 2nd August, 2013.

Applicant was aggrieved by the judgment and his recourse was to appeal to the Supreme Court in terms of Section 92F of the Labour Act [Chapter 28:01].

In terms of Rule 36 of this Court’s Rules SI 59/2006 an application for leave to appeal to the Supreme Court must be made within 30 days from the date of that decision.

Applicant was supposed to make such application by the 17th September, 2013.  He did not, until the 3rd October, 2013 when he filed the current application for condonation of late filing of the application.  Applicant was eleven(11) days out of time.

Eleven days out of time is a long delay in my view.  Where time periods are provided for in a statute or legislation, it is intended to ensure the expeditious resolution of matters and therefore the principal litigant must prosecute its case with due expedition.

See:- SCOTFIN LIMITED V MTETWA 2001 (1) ZLR 249 (H).

Applicant’s explanation for this delay as per his founding affidavit is that he was looking for a legal practitioner and when he failed to engage one due to financial constraints, he then decided to self-act.

In today’s hearing, as was in all the other prior hearings, Applicant was represented by the Organising Secretary of the Union (Zimbabwe Catering Workers Union)

It was during his oral submissions that the Representative divulged that actually Applicant approached them and they gave him wrong advice and that it is them that prepared and filed the documents in this court on his behalf.

It is not true that Applicant is a self-actor.  This untruth was told in a bid to sway this court in his favour.

In view of the fact that Applicant had the benefit of his Union representative right through the entire proceedings (dating back February, 2011) to the present proceedings, I find that the explanation for the delay is not satisfactory at all.

It is trite that an application stands or falls on the averments made in the founding affidavit.

See :-	ALFRED MUCHINI V

ELIZABETH MARY ADAMS

SHEPHERD MAKONYERE N.O.

ESTATE LATE ALVIN ROY ADAMS

REGISTRAR OF DEEDS

MASTER OF THE HIGH COURT

SC 47/13.

in which ZIYAMBI JA quoting Herbstein and Van Winsen the Civil Practice of the Superior Courts in South Africa 3rd edition page 80, had this to say

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny….” (Underlining for emphasis).

I also find that the relief being sought in terms of the Draft Order is not the relief one can seek in an application such as this one.

Applicant is seeking that:-

The application succeeds and this the matter be referred to the Supreme Court.

That Applicant shall be paid the awarded amount as interim relief.

The first term of the order can only be granted in an application for leave to appeal and not for condonation.

The second term of the order can only be granted in an application for interim relief which is not the case in casu.

On that note, the application is fatally defective and ought to be dismissed.

A look at the grounds of appeal, shows that Applicant has no prospects of success on appeal. Most of the grounds do not raise any point of law.  The Learned President considered the evidence and documents placed before her and it is on the basis of those that she came up with the sum to be paid.  The pay slips placed before her did not show that they belonged to Applicant hence she rejected them.  The leave issue, is a calculation error which could have been cured by an application in terms of Section 92C (1)(c) of the Labour Act.

Overally I find that Applicant cannot be granted the indulgence he is seeking.

To that end, the application is dismissed with costs.

Zimbabwe Catering Workers Union–Appellant’s Legal Practitioners.

Bere Brothers–Respondent’s Legal Practitioner.