Tawanda Chimbwanda v ZESA Holdings (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/496/16
HELD AT HARARE
12 JULY 2016
CASE NO
JUDGMENT NO LC/H/496/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/496/16

HELD AT HARARE 12 JULY 2016				CASE NO LC/H/APP/209/16

& 19 AUGUST 2016

In the matter between:

TAWANDA CHIMBWANDA				Applicant

And

ZESA HOLDINGS (PVT) LTD				Respondent

Before The Honourable Murasi, J

For Applicant			B Ndlovu (Legal Practitioner)

For Respondent		Miss P Chihombe (Legal Practitioner)

MURASI J:

Applicant was employed by the respondent as a line worker.  Following allegations of misconduct, applicant was charged with misconduct.  It was alleged that applicant had been apprehended by members of the public stealing property belonging to the respondent.  Applicant was brought before a Disciplinary Committee which convicted him and recommended his dismissal.  Applicant appealed against the decision in terms of the respondent’s Code of Conduct.  This appeal was unsuccessful.  Applicant subsequently filed an appeal with this court on 30 March 2015.  This appeal was withdrawn on 22 February 2016.  Applicant alleges that the appeal was erroneously filed and in its place the applicant should have filed an application for review.  The applicant is therefore applying for condonation for late noting of the application for review.

Mr Ndlovu for the applicant stated that he abided by the documents filed of record and did not have anything else to add by way of oral submissions.  The filed affidavit from the applicant reveals the following as the main thrust of the application:

“I filed an appeal against the determination as it was not fair in the interest of justice.  All along I have been in dark until my now legal practitioners advised me, which advice 1 believe to be correct that I was supposed to file an application for review as the grounds call for a review.

My delay was never wilful and I have demonstrated a keen interest to defend myself although I took the wrong channel.  I humbly pray to  the court to condone my late filing of a review which was caused by lack of funds and no access to legal representation in time.

From the explanation given above it cannot be said that there was an inordinate delay in bringing the application.  I have great interest in the matter because I am no longer employed by the respondent and have no source of income to sustain my family hence the main application has a priceless value towards the up-keeping of my family.”

In his submissions, Mr Ndlovu stated that the disciplinary proceedings were tainted with irregularities and that the applicant should be allowed to ventilate his side of the story if given the opportunity.  It was further submitted that the applicant has prospects of success on review as the respondent had clearly failed to adhere to the provisions of the Code of Conduct in that the Disciplinary Committee was not properly constituted.  He urged the court to grant the application.

Miss Chihombe also stated that she was going to abide by the documents filed of record and had nothing to add by way oral submissions.  In her written submissions, Miss Chihombe stated that applicant had been represented at the hearings before the respondent and thus the allegation that he had not been represented was incorrect.  It was further submitted that the delay in filing the application for review was as a result of lack of diligence.  It was argued that no reasonable explanation had been tendered before the court for applicant’s failure to file the application timeously.  Miss Chihombe further argued in the written submissions that applicant did not have any prospects of success even if the application were to be granted.

Precedent has shown that in applications of this nature, the case stands or falls according to the papers filed in support of the application.  I have reproduced applicant’s affidavit in extenso in order to show the paragraphs on which the applicant chiefly relies upon.  In applications of this nature, it is trite that the factors usually considered by the court include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of matter, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.

As observed earlier in this judgment, the original appeal was filed on 30 March 2015 and was withdrawn on 29 February 2016.  This was some 12 months later.  The applicant attested to the founding affidavit on the same date that the original appeal was withdrawn.  In paragraph six (6) of the affidavit, applicant alleges he was “in the dark” until the current legal practitioners came to his rescue.  What is evident from this information is that the applicant does not state when the legal practitioners came to his rescue.  This is so given the fact that there is a period of 12 months which has not been explained by the applicant.  The applicant does not take the court into his confidence by explaining what was happening in the 12 months which led to the withdrawal of the original appeal.  It should be noted that 12 months is indeed a long time when issues of litigation are in question.  The applicant has not stated what the legal practitioner did and when upon the realisation that the wrong papers had been filed with the court.  The court remains in the dark.  It is also a well established principle that a court has the discretion to grant condonation when the principles of justice demand it.  However this can only happen when the reasons for non-compliance with the rules have been explained by the applicant to the satisfaction of the court.  What the court should proceed to determine is whether the explanation tendered by the applicant in the founding affidavit constitutes a reasonable explanation.

Applicant was represented by trade union officials during hearings before the respondent.  The notice of appeal was filed by one Gibson Mushunje on behalf of the Energy Sector Workers Union of Zimbabwe.  These are representatives chosen by the applicant.  The applicant does not state that the union did not have any mandate to file the appeal on his behalf.  The applicant does not state that the union was not qualified to understand the difference between an appeal and a review.  Such issues are missing from the applicant’s affidavit coupled with the delay of 12 months.  Does this then amount to a reasonable and acceptable explanation?  I think not.  MULLER JA had this to say P E Bosman Transport Works Committee & Others v Piet Bosman Transport (Pty) Ltd 1980 () SA 794 (A) at 799 D-E:

“In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and indeed in respect of other periods of delay, no explanation at all, the application should in my opinion, be granted whatever then prospects of success may be.”

I do not find that the applicant has any prospects of success.  The record of appeal shows that when applicant was given an opportunity to make his representatives available, he could not as these were supposed to be on a collective job action.  The respondent could not wait forever and proceeded to hear the matter.   Applicant has not stated that he was prejudiced in any way.  The court also notes that applicant would have raised the delay as a technical issue which he subsequently raised on appeal.  On the facts, applicant does not dispute the arrest by members of the public.  It is also not in dispute that he was subsequently convicted by a criminal court and sentenced to perform hours of community service.  In this respect, I do not see any prospects of success.

In the result the application is dismissed with no order as to costs.

Bothwell Ndlovu Attorneys at Law, applicant’s legal practitioners

Baera & Company Legal Practitioners, respondent’s legal practitioners