Treger Products (Pvt) LTD V Taona Murova & 14 ORS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT LC/H/332/2016
HARARE, 13 NOVEMBER 2015 &
CASE NO LC/H/APP/629/2015
27 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	                JUDGMENT LC/H/332/2016

HARARE, 13 NOVEMBER 2015 &		            CASE NO LC/H/APP/629/2015

27 MAY 2016

In the matter between

TREGER PRODUCTS (PVT) LTD					APPLICANT

Versus

TAONA MUROVA & 14 ORS						RESPONDENT

Before the Honourable L F Kudya J

For the Applicant      J Samukange  (Legal Practitioner)

For the Respondents   B Makururu (Legal Practitioner)

KUDYA J:

On 13 November 2015 at the hearing of this application for condonation of the late noting of an appeal by the applicant employer against the respondents employees, parties agreed that judgment be reserved on the basis that it would be written out based on the heads of arguments and other documents filed of record. This therefore is the judgment in that matter.

The background to the matter is that the respondent employees lost their jobs following disciplinary action taken against them by the applicant employer on a matter where they allegedly violated the applicant’s code of conduct be engaging in an illegal job action and by failing to obey a lawful order to return to work from their unauthorised absence from work. They appealed internally without success and ended up at arbitration where the arbitrator ruled in their favour.

The applicant employer was irked by the arbitral order and appealed against it in the labour court. In the Labour Court the appeal was struck off the roll on 8 May 2013 for failing to comply with the rules that is it allegedly did not raise points of law as required by section 98 (10) where one wants to appeal against an arbitral award. It is the striking off order which prompted the applicant to file the application which is the subject matter of this judgment.

The basis for seeking condonation is not explained in the application save for the applicant to state simply that the action is prompted by the desire to fulfil the provisions of Practice Directive 3 of 2014 where a party whose matter has been struck off the roll is given thirty days within which to regularise the non-observance of the rules. It also tersely states that the grounds which were struck off had been inelegantly crafted because they had not been done by a legal practitioner.

It is however worth noting that the supporting affidavit by the applicant’s human resources manager states that even though the original grounds were struck off on account of them not raising points of law he verily believed that though inelegantly crafted they did raise points of law.

The law relating to condonation is aptly set out on the authorities cited by both parties in their heads of argument. Since this is apparent on the papers before the court no effort is made to restate same as that would not serve any meaningful purpose. Essentially, the applicant, need to demonstrate that it has a merited case on appeal. In the context of the facts of the instant case the question is whether the applicant has shown that the arbitrator was in breach of the law to the extent that the appellate court should be called in to have the award or order vacated.

It is pertinent to note that a reading of the grounds of appeal now filed under counsel’s hand are not materially different from those which were struck off. In essence the new grounds make the same narrations which were done in the struck off ones and that does not in any way demonstrate the merit of the application.

Whilst the applicant argues that instant application was filed within the thirty day time frame to comply with the practice note it does not demonstrate clearly why it says it has a merited case on appeal calling for this court to condone its failure to comply with the rules in the first place. The court is satisfied that the test for condonation has not been satisfied in the case at hand and the application for same should consequently fail.

IT IS ORDERED THAT

The application for condonation of late noting of an appeal being without merit it be and is hereby dismissed. Each party to bear own costs.

Venturas & Samukange, applicant’s legal practitioners

Musoni Masasire Law Chambers, respondents’ legal practitioners