Raymond Mashari v Kingdom Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/483/2014
HARARE, 04 JULY 2014
CASE NO.
JUDGMENT NO. LC/H/483/2014
---------




IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO.LC/H/483/2014

HARARE, 04 JULY 2014		           	       CASE NO. LC/H/APP/136/14

AND 01 AUGUST 2014

In the matter between:-

RAYMOND MASHARI 					Applicant

And

KINGDOM BANK						Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		T. Marimo (ZIBAWU)

For Respondent		N.P. Timba (Legal Practitioner)

MAXWELL, J:

This is an application for condonation of late filing of an application for leave to appeal to the Supreme Court.  In terms of Rule 36 of the Labour Court Rules SI 59/2006 leave to appeal to the Supreme Court from any decision this Court must be made within thirty (30) days from the date of that decision.  In this case the decision sought to be appealed against was made on 13 September 2013.  The present application was filed on 21 May 2014, after nine months from the date of judgment.

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 for the non-compliance with the rules of Court and there must be strong prospects of success on appeal.

See Paul Gary Friendship v Cargo Carries Limited and Another SC 1/13.

Grant v Plumbers 1949 (2) SA 470.

At the hearing of the matter Applicant brought an application to include new evidence that had been filed the very morning of the hearing.  Applicant was seeking to introduce correspondence between the parties’ representatives dating back to more than a month ago.  Respondent objected on the basis that the evidence was not new as Applicant had it from 29 May 2014.  Respondent’s counsel had been served with a copy of the application a few minutes before the commencement of the hearing.  The application was dismissed and the matter proceeded on the merits.

What reason has Applicant given for the delay in seeking leave to appeal to the Supreme Court?  Applicant states that he was not aware that judgment had been handed down until March 2014 when the Registrar of this court confirmed that judgment had been handed down in September 2013.  Applicant states that he had challenges in getting the actual judgment and only received it in May 2014.  He ascribes his decision to delay in checking on the availability of the judgment to “structural challenges of backlog at Court”.  According to him Judges are trying their best to clear backlog and hence the outcome of cases is delayed.  The explanation is lame and totally unacceptable.  In any event if it had been true, Applicant should have attached confirmation from the Registrar of this Court that the situation was as he explained.  The fact that the judgment was delivered in September 2013 and he only checked in March 2014 shows that Applicant was not diligent in the pursuit of the outcome of his case.  Respondent aptly referred to the case of Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation (Pvt) Ltd SC-31-08 as authority that lack of knowledge of a judgment cannot be an acceptable explanation for non-compliance with rules of Court.  Applicant had a duty to follow up and ascertain if judgment was available.  His failure to do so on the assumption that there were delays due to backlog is not excusable.  I find the explanation for the delay not acceptable.

Are there any prospects of success on appeal?  In the draft grounds of appeal Applicant is raising the issue of the jurisdiction of the Grievance and Disciplinary Committee (G & DC) to deal with an appeal by the employer.  He also accuses the Judge of failing to find that no appeal lies on a decision by the hearing officer.  He also accuses the Judge of altering a collective bargaining agreement SI 273 of 2010.  The grounds of appeal raise the question, what issue was placed before the Judge on appeal?  The appeal before the Judge was against a ruling of the National Employment Council for the Banking Undertaking.  The grounds of appeal deal mainly with the question of the penalty that was prescribed by the National Employment Council for the Banking Undertaking.  Applicant did not challenge the jurisdiction of the G & DC in a cross appeal.  It is therefore incompetent for Applicant to seek to raise the issue through an appeal from a decision that was not concerned with the issue.  An appellant can only appeal against the decision of an issue that had been before the Court.  See James Kandoma v Shades of Black Cosmetics (Pvt) Ltd SC 115/04.

C Kambuzuma & 22 Others v The Athol Evans Hospital Home Complex SC 118/04.

Fungai Gwangwara Khumalo v Zibage Rural District Council SC 21/05.

I therefore find that Applicant has no prospects of success on appeal as he is raising issues that were not before this court

I find no merit in the application and it therefore fails.  Accordingly I order that it be and is hereby dismissed with costs.

KANTOR & IMMERMAN, Respondent’s legal practitioners