Rebecca Mhlanga v Zimbabwe United Passenger Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/161/2016
HARARE, 22 FEBRUARY 2016 &
18 MARCH 2016
CASE NO LC/H/APP/875/2015
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/161/2016

HARARE, 22 FEBRUARY 2016 &			   CASE NO LC/H/APP/875/2015

18 MARCH 2016

In the matter between

REBECCA MHLANGA							APPLICANT

Versus

ZIMBABWE UNITED PASSENGER COMPANY			RESPONDENT

Before the Honourable FC Maxwell J

For the Applicant	  J Dondo  (Legal Practitioner)

For the Respondent      B Ngwenya (Legal Practitioner)

MAXWELL J:

This is an application for condonation of late filing of an application for leave to appeal to the Supreme Court. On 29 May 2015 this court upheld a point in limine that the grounds of appeal in case number LC/H/1056/14 are attacking factual findings without alleging that the findings are grossly irregular amounting to a misdirection in law. Consequently I dismissed the appeal with costs. On 27 July 2015 the present application was filed. The applicant alleges that the judgment of 29 may 2015 was not brought to her attention on time as it was only delivered to her on 9 July 2015. She alleges there are prospects of success and therefore condonation should be granted.

The respondent opposed the application. It stated that the explanation given for the late filing of the application is lame. It further stated that the application is hopeless on the merits.

For an application of this nature to succeed the applicant must reasonably explain his delay and show that there are good prospects of success on appeal. See Paul Friendship v Cargo Carriers Ltd & Anor SC 1-13.

Explanation for the delay

The applicant states that neither she nor her legal practitioners were informed that judgment would be handed down on 29 May 2015. This court posts on its public boards the days on which judgments are handed down. In addition to the notice on the board, the Registrar reminds the parties’ lawyers telephonically that judgment would be handed down on the date specified on the notice board. As submitted by the respondent, it is unthinkable that the Registrar would only make a handing down of judgment reminder call to the respondent’s lawyers alone and not to the applicant’s lawyers. In any event, after the hearing on 11 March 2015 the applicant and her lawyers had a duty to check on when judgment would be handed down. There is no indication that any of them ever ascertained from the Registrar when judgment would be handed down. The appellant’s situation is akin to that of the applicant in the case of Elizabeth Mutizhe v Loveness Axcillia Ganda & Ors SC 17-09 in which DCJ MALABA remarked:

“Is the explanation for the delay reasonable? Apart from saying she did not know that the judgment had been delivered on 27 February 2008 the applicant did not say why steps were not taken by her or her legal practitioners which would have enabled her to acquire that knowledge. The court a quo had reserved judgment at the end of hearing of evidence in the trial of the action. The applicant and her legal practitioners were under the duty to make regular inquiries with the Registrar as to when the judgment would be given. To provide a reasonable explanation for compliance with rules of Court it is generally necessary to say why the applicant or his legal representative failed to act in a manner a diligent litigant or his legal practitioner would reasonably have been expected to act. (Underlining for emphasis)

I am therefore not persuaded that the explanation given for the delay is reasonable.

Prospects of Success

I am not persuaded that there are prospects of success on the intended appeal to warrant the granting of condonation. The applicant contends that the grounds of appeal raise questions of law and as such there is likely (sic) hood that the Appeal Court will agree with her. As I stated in the judgment sought to be impugned, reaching a conclusion not acceptable to a litigant is not the same as a misdirection I am alive to the position stated by the Supreme Court in Jainos Zvokusekwa v Bikita Rural District Council SC 44-15 that:

“One must … be guided by the substance of the grounds of appeal and not the form. Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

In casu, the applicant’ s grounds of appeal did not demonstrate that the arbitrator made a finding that was contrary to the evidence led or was not supported by such evidence. Neither did they show that the arbitrator mistook the facts and consequently reached a wrong conclusion.

As submitted for the respondent, this court made factual findings in the judgment sought to be impugned. The applicant does not show how the factual findings constitute gross misdirection giving rise to questions of law. Clearly there are no prospects of success on appeal. Consequently I am not persuaded to grant the indulgence of condonation.

Accordingly I order as follows:

The application for condonation of late application of leave to appeal be and is hereby dismissed with costs.

Dondo & Partners, applicant’s legal practitioners

Chinawa Law Chambers, respondent’s legal practitioners