Stephen Marufu v City of Harare

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/176/23
HELD AT HARARE 31ST MAY 2023
CASE NO LC/H/840/22
AND 28TH JUNE , 2023
In the Matter between
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==============================IN THE LABOUR COURT OF ZIMBABWE  JUDGMENT NO LC/H/176/23

HELD AT HARARE 31st MAY 2023  CASE NO LC/H/840/22

AND 28th JUNE, 2023

In the Matter between

STEPHEN MARUFU  APPLICANT

And

CITY OF HARARE  RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

For the Applicant : In Person

For the Respondent : Mr N.P.Nyathi (Legal Practitioner)

MAKAMURE J.

This is an application for condonation of late noting of appeal. It is opposed.

Two preliminary issues were taken on behalf of the respondent before the application could be argued. These have to be determined before the main application is heard as they may have the ability to dispose of the matter and therefore obviate the need to determine the merits. See TELECEL Zimbabwe (Private) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe and Others HH446/15. The two issues are that (i) the matter has prescribed and (ii) the application is defective.

The Preliminary Issues

(i) That the matter has prescribed

The applicant is a former employee of the respondent. He was dismissed from the respondent’s employ on 16th October 2000. He noted an appeal internally. That appeal wasdismissed on 16th September 2001. What this means is that the applicant has been out of employment for a period in excess of twenty-one years. He now seeks condonation of late noting of an appeal against a decision that was made then.

It was argued on behalf of the respondent that in terms of both the Prescription Act (Chapter 8:11) and the Labour Act, Chapter 28:01 the matter has prescribed. The respondent also cited case authorities in support of its argument. These included Chidziva & Othres v ZISCO 1997 (2) ZLR 368; John Conradie Trust v Federation of Kushanda Pre-Schools Trust & Others SC12/2017.

(ii) The application is defective

In the affidavit deposed to on behalf of the respondent it was averred that the application is vague and does not address recognizable grounds for condonation. It was pointed out that there is no valid cause of action. Further still the draft prayer itself is invalid at law. It was argued that the record of proceedings which would enable the court to appreciate the matter is not attached to the application. Further there has been a lot of transformation within the respondent and the law which applied twenty years ago is no longer applicable. It was further averred that due to the passage of time the relevant records are no longer available.

In the heads of argument and in his address in Court Mr Nyathi who appeared on behalf of the respondent, submitted that the application does not address the requirements needed in order for the application to succeed namely, factors like prospects of success and prejudice to the respondent. It was argued that there must be finality to litigation. Mr Nyathi also argued that should the application be granted it is likely to open floodgates with catastrophic consequences to the respondent as an administrative body which has dealt with many employees. The authorities relied on by the respondent include: ZIMASCO (Pvt) Ltd v SAN HE Mining (Pvt) Ltd HH654-15; Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626; Florence Chimunda v Arnold Zimuto SC 76/14.

In view of the two preliminary points raised it was submitted on behalf of the respondent that the application ought to be dismissed.

In response the applicant stated that the preliminary points were raised prematurely and that they should be raised after the granting of condonation. The applicant referred to his illness and how the dismissal from employment has negatively affected his life. He did not meaningfully respond to the issues raised on behalf of the respondent, in particular he did not address the question of prescription and requirements to be met in an application for condonation. He was of the view that if his case is reopened it may help other people.

In response, Mr Nyathi submitted that the applicant only touched the periphery of the matter and that the preliminary points should dispose of the matter. Mr Nyathi prayed for the dismissal of the application with each party bearing its own cost.

**The Law**

Section 15 of the Prescription Act Chapter 8:11 provides the prescription of debts as follows:

*‘The period of prescription of a debt shall be—*

(a) thirty years, in the case of—

(i) a debt secured by mortgage bond;

(ii) a judgment debt;

(iii) a debt in respect of taxation imposed or levied by or under any enactment;

(iv) a debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances;

(b) fifteen years, in the case of a debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor unless a longer period applies in respect of the debt concerned in terms of paragraph (a);

(c) six years in the case of—

(i) a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract;

(ii) a debt owed to the State; unless a longer period applies in respect of the debt concerned in terms of paragraph (a) or (b);

(d) except where any enactment provides otherwise, three years, in the case of any other debt.’ (Emphasis added).


The Labour Act Chapter 28:01 provides for prescription of disputes which would be brought before labour officers as follows:

‘94 Prescription of disputes

(1) (1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless—

(a) it is referred to him; or

(b) has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.

(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.

(3) …’ (Emphasis added).

Rule 22 of the Rules of this Court Statutory Instrument 150/2017 (the Rules) provides for applications for condonation in the following terms:

‘22. Application for condonation of late noting of an appeal or review

(1) A party wishing to apply for condonation of the late noting of an appeal or review shall do so in form LC 1.

(2) An application in terms of this rule shall be accompanied by a draft of the intended notice of appeal or review.’

In John Conradie Trust v Federation of Kushanda Pre-Schools Trust & Three Others SC 12/2017 the Supreme Court stated that:

‘Prescription does not deal with the merits. It simply seeks to extinguish old stale debts not claimed within the prescribed time limits. The rationale for prescription was amply captured by the learned trial judge where he quotes Wessels in the Law of Contracts in South Africa, Vol. II para 2766 where the learned author says:


“Creditors should not be allowed to permit claims to grow stale thereby they embarrass the debtor in his proof of payment and because it is upsetting to the social order that the financial relations of the debtor towards third parties should suddenly be disturbed by the demanding from him payment of forgotten claims.””

Analysis

In the present case the period within which the applicant was supposed to have noted the appeal expired over a decade ago. That makes his claim stale. If the claim is persisted with, it is likely to embarrass the respondent.

From statutory provisions referred to above, from whichever way that the matter is looked at, the claim has prescribed. If the matter would have been heard by a labour officer, it is more than two years after the matter arose. In terms of the Prescription Act the claim being “any other debt”, had to be made within a period of three years. The period of twenty-one years is far in excess of the limit set out in the Prescription Act.

If regard is had to submissions made on behalf of the respondent, namely, that the law within the organization has since changed and some of the records are no longer available, reopening the applicant’s case my not achieve much for him. That exercise will amount to a waste of time for all concerned.

The applicant has placed on record copies of notes from doctors or clinics. However, there is no affidavit from a person qualified in the medical field to explain what effect the condition or conditions stated therein had on the applicant. Obviously, production of medical cards is testimony to the fact that he suffered from some ailment. But that is as far as can be gleaned from those documents. That unfortunately is not useful to the Court.

Dismissal from employment is not a pleasant experience. This is why parties seek the intervention of the dispute resolution system. However, when litigants appear before this Court, they should always bear in mind that there are set guidelines to be followed in order for their goal to be achieved. For that reason, the court’s decision is always guided by provisions of the law. So whatever circumstances surround dismissal, these must be expressed in terms which satisfy the set parameters. See Zimbabwe Platinum Mines (Private) Limited v Marko Phuti SC21/2016.

I will now turn to the applicant’s draft prayer. It reads:


‘IT IS HEREBY ORDERED THAT:’

1. *Condonation for the late noting of appeal to the Labour Court be and is hereby granted.*
2. *Each party shall bear its own costs.*

The draft is not clear. It is not known what will or should happen after the prayer has been granted. A prayer should state the exact relief that the litigant is seeking. In Zimbabwe Newspapers (1980) Limited v Tembani Kufa SC80/21 the Supreme Court stated that a defective prayer cannot be amended. This is the unfortunate fate of the applicant’s prayer in the present matter. The applicant has indeed attached the draft Notice of Appeal in conformity with the Rules. However in view of the inordinate delay resulting in prescription of the claim and the defective prayer, the balance of convenience favours that the preliminary issues raised be upheld. The preliminary issues are accordingly upheld.

**Conclusion**

I am therefore persuaded to agree with the respondent that its case has been proved on a balance of probabilities with respect to the preliminary issues raised. This means that the matter is not properly before the Court.

In view of the fact that the matter is not properly before the Court, the Court cannot dismiss it. It should be struck off the roll.

Consequently, it is ordered that:

1. The application for condonation of late noting an appeal be and is hereby struck off the roll.
2. Each party bears its own costs.

**GAMBE LAW GROUP, RESPONDET’S LEGAL PRACTITIONERS.**
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