Vengai Mupariwa and 5 Others v C.P.L. (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/616/14
HELD AT HARARE ON 13th JUNE, 2014
CASE NO. LC/H/APP/78/14
AND 12TH SEPTEMBER, 2014
JUDGMENT NO. LC/H/616/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/616/14

HELD AT HARARE ON 13th JUNE, 2014    CASE NO. LC/H/APP/78/14

AND 12TH SEPTEMBER, 2014

In the matter between:-

VENGAI MUPARIWA AND 5 OTHERS 				Applicants

And

C.P.L. (PRIVATE) LIMITED					Respondent

Before the Honourable G. Mhuri, Judge

For Applicants: 	Ms. W. Nyakudanga

(Organising Secretary ZGWU) with

Mr. Chimhuka (General Secretary ZGWU)

For Respondent: 	Ms. G. Ncube (Legal Practitioner)

MHURI J.:

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

In an application such as this one the Court has to consider:

the length of the delay

the explanation for the delay and

the prospects of success on appeal.

The applicants intend to appeal against an arbitral award, which award was issued on the 23rd September, 2013.  This application for condonation was filed in this Court on the 2nd May, 2014.  This is a delay of 7 months.

Seven months delay is an inordinate delay I must say.

The Applicants’ explanation for the delay is stated in Vengai Mupariwa’s founding affidavit to which the other four applicants have associated themselves.  In paragraphs 4, 5 and 6 of the affidavit Applicants state that:

on the 30th September, 2013 through their Union made an application for review which was dismissed by this Court.

On the 28th March, 2014 judgment was handed down in which the application for review was dismissed.

The reasons for dismissal were that the first two grounds lacked merit and the third ground was a ground of appeal.

The Applicants further explained that the delay in filing the appeal was due to the fact that they were pursuing the review on the advice of their Union representative which advice was erroneous.  It was after they obtained the judgment on the 28th March, 2014 that they realized they ought to have appealed after the review application had been dismissed.

As stated earlier, Applicants intend to appeal against the arbitral award of the 23rd September, 2013.  After having received this Court’s judgment on the 28th March, 2014 Applicants waited until the 2nd May, 2014 to file this application.  Whilst the delay from September, 2013 to March, 2014 has been explained, the delay of 1 month i.e. March to May has not been explained at all.  The failure to explain this delay has dented Applicants’ case.  Applicants ought to have been vigilant enough and filed their appeal immediately they got hold of the judgment instead of waiting a month to do so.

In their intended notice of appeal Applicants state two grounds of appeal.  These are:-

the arbitrator erred at law in relying on a wrong statutory instrument.

the arbitrator erred at law in failing to hold that the Applicants were permanent employees of the Respondent.

As regards the 1st ground, Applicant had included it as a ground of review in their application.  It was after receiving the judgment on the 28th March, 2014 that they then decided to make it a ground of appeal.

As for the second ground, Applicants have raised it in this notice as a ground for appeal, seven months after the issuance of the award.

No explanation was proffered as to why the Applicants did not file the notice of appeal at the time they filed the application for review.  This procedure is provided for in terms of Rule 15 sub-rule 3 of the Labour Court Rules Statutory Instrument 59 of 2006.  The Rule provides:-

(3)	“A person making an appeal under this rule who also wishes to seek review of the proceedings in respect of which he or she makes the appeal shall, at the same time, complete in three copies of a notice of review in form LC4 …”

The explanation given for the delay September to March (7 months) relates to the first ground of appeal.  No explanation was given for the second ground.  Consequently I find that the Applicants have failed to pass the second hurdle.

Moreover the first ground was however dealt with in detail by the Honourable Judge in the application for review as Applicants had laid it down as a ground for review:  The Court dismissed the ground on the basis that it had no merit.  “There is therefore no merit in this ground of review as well.” (page 4 of the cyclostyled judgment.)

Applicants wanted to capitalize on what the judge said, to the effect that she agreed with Respondent’s submission that this ground was a ground of appeal.  As stated, the ground was comprehensively dealt with by the Court and was found to be meritless, as such I find that there are no prospects of success on appeal.  Applicants want to have a second bite of the cherry and this they cannot be allowed to do.  The adage, there must be finality to litigation is apt.

To that end, condonation of late filing of appeal cannot be granted.

The application is therefore dismissed with costs.

Zimbabwe Graphical Workers Union–Appellant’s Legal Practitioners

Coglan, Welsh and Guest–Respondent’s Legal Practitioner