Zimbabwe Red Cross Society v Takura & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 13 JUNE 2024
JUDGMENT NO. LC/H/281/24 CASE NO. LC/H/322/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 13 JUNE 2024

AND 1 JULY 2024

IN THE MATTER BETWEEN:-

JUDGMENT NO. LC/H/281/24 CASE NO. LC/H/322/24

ZIMBABWE RED CROSS SOCIETY	APPLICANT AND

AGAINST TAKURA	FIRST RESPONDENT

ALEX CHAMISA	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. W. Magaya

For Respondents	Mr. T.J. Mafongoya

MURASI J.,

This is an application for condonation of the late filing of an appeal.

The basis of the application is contained in the Founding Affidavit as follows:

“The Respondents have since had the award registered with the Magistrates Court for purposes of execution. The Applicant lodged an appeal with this court under case number LC/H/908/23 on the 8th November 2023. The appeal was struck off the roll by this court under judgment number LC/H/133/24. The appeal was struck off the roll on a technicality with the court finding that the appeal as defective in that the Appellant had mistakenly swapped the amounts the figures of the amounts awarded to the Respondents. The Applicant had inadvertently referred to the second Respondent as the First Respondent as it related to the amounts in dispute. The defective notice of appeal and the judgment of this court are attached hereto as Annexure C and D.

While the error is regretted, it is submitted that this is a point that was raised by the court mero motu. Parties had not picked the error and there was never an opportunity for the

Applicant to seek an amendment or to make submissions on whether the error invalidated the appeal. The matter was heard with only the notice of appeal and the notice of response on record because his Lordship Murasi J felt that the matter was straightforward.

When the decision was rendered, the matter was struck off as the court found that the Notice of appeal was defective. The decision of the court was rendered on the 25th of March 2024 and the applicant only accessed the judgment on theb28th of March 2024.

Applicant is applying for condonation for the late noting of appeal to enable it to pursue its appeal. I submit that the delay is not inordinate and the explanation for the delay as given above is not unreasonable. It arises from an error. There is only three days between the handing down of the judgment and the filing of the present application.”

At the commencement of the hearing the Court brought to the attention of Mr. Magaya that an Answering Affidavit had been filed and whether this was properly before the Court. Mr. Magaya agreed that the Answering Affidavit was improperly before the Court and should be expunged from the record. A further matter that Applicant had also filed a Chamber Application for Stay of Execution. Again Mr. Magaya stated that it was not supposed to be part of the documents and should accordingly be expunged from the record.

On the merits, Mr. Magaya confirmed the events narrated in the Founding Affidavit and submitted that the extent of the delay should be calculated from the date when the Magistrate issued the order of registration. As far as the prospects of success were concerned, Mr. Magaya stated that Applicant did not dispute what was awarded to the First Respondent but took issue with what had been awarded to the Second Respondent. He argued that the figure of $5120-00 awarded to the Second Respondent was incorrect. He stated that this was so as the bank statement did not support the award. He went on to indicate that Second Respondent earned a salary of $320-00 and that the award had been simply a multiplication of that figure with 16 months. He also argued that the figure therefore included periods which had been deemed to fall under prescription. Mr. Magaya also submitted that the Labour Officer had ignored the payments which had been made to the Second Respondent during the period in question.

In response, Mr. Mafongoya stated the issue of the extent of the delay was not canvassed in the Founding Affidavit and that the information supplied by Mr. Magaya had been a result of probing by the Court. He submitted that there had been no explanation as to what happened from November 2023 and that Applicant had simply stated that the error was regretted without explaining the cause and nature of the delay. He further pointed out that there was no Supporting Affidavit to confirm what had transpired. Mr. Mafongoya further submitted that the averments made in the Founding Affidavit were incorrect as it was the Respondents who raised the issue of the defective Notice of Appeal and thus it was incorrect to state that the issue had been raised by the Court mero motu. In that regard, he further averred that the explanation was therefore unreasonable.

As far as the prospects of success were concerned, Mr. Mafongoya submitted that the Founding Affidavit should speak to the grounds of appeal as formulated in the Notice of Appeal. In this regard, he brought to the Court’s attention that what had been stated by Applicant’s Counsel was not what was contained in the grounds of appeal. Mr. Mafongoya stated that Resolution of the Applicant showed that authority had been granted to the Manager but the deponent had indicated that he a Director of the Applicant. In the result, he further argued, the office which was authorized was not the office which was speaking.

As regards the first prospective ground of appeal, Mr. Mafongoya stated that it was a mischievous pleading in that the claims placed before the Labour Officer showed the outstanding salaries and that Applicant had actually responded to these. It was also submitted that Applicant had not placed proof of payments before the court and this was not done. It was further argued that the Labour Officer had not been satisfied with the averments made by the Applicant during the hearing. Mr. Mafongoya also pointed to the fact that Applicant stated that it was satisfied with the determination of the Labour Officer in respect of the First Respondent but did not agree with the award in respect of the Second Respondent when in fact it was a single determination whose reasons were the same. He submitted that this was indeed an unreasonable conclusion on the part of the Applicant.

ANALYSIS

In Maheya v Independent African Church S 58-07, it was held as follows:

“In considering an application for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case’ the respondent’s interests in the finality of the judgment; the convenience of the court and the avoidance of unnecessary delays inn the administration of justice.”

In Stevenson v Minister of Local Government & Others 2002 (1) ZLR 498 (S), it was held as follows:

“And, as has been said repeatedly, an Applicant must stand or fall by his founding affidavit and facts alleged in it.”

In Sergeant Mhande and Another v Chairman of the Police Service Commission and Others

SC63/18, it was stated as follows:

“There is one other aspect of this case which has caught my attention. There is no attempt by the applicants to advert to BHUNU JA’s earlier order in this application. There is no appetite by the applicants through their founding affidavit to openly disclose that this application is a second similar application which is being brought to court. That deliberate

attempt to withhold information does not project the applicants in good light. Our courts are not keen to grant favourable orders to litigants who withhold vital information to it.”

In applications, it is a generally accepted norm that courts rely on averments made in affidavits and what is contained therein. It is the evidence. Where a litigant fails or neglects to put forward relevant information in the affidavit, a court is not expected to make a favourable finding for a litigant who falls short in that regard. This brings me to the averments made by Applicant about the reasons for the previous matter being struck off the roll. I have elsewhere inn this judgment reproduced the explanation in extenso. It was averred therein that it was the Court who raised the point mero motu. As clearly pointed bout by Mr. Mafongoya, it was the respondents who raised the matter. It was not the Court. It was an incorrect averment. Mr. Magaya was at pains to admit that the affidavit was telling a lie in respect the assertion in question. There was no Supporting Affidavit from the Counsel who attended the proceedings to state that it was indeed the Court which raised the issue. There is a gap in the explanation. Further, Applicant did not explain the extent of the delay from the time of the determination by the Magistrate. In any event, the ‘error’ referred to was made by Applicant’s legal practitioners. It has been stated in precedent that the lack of diligence and tardiness on the part of a litigant’s legal practitioners is non-availing to a litigant. The Courts have time and again stated that a litigant who is to blame for his/her own errors, or those of his/her legal practitioners, or who treats his/her matters with lackadaisical attitude, gross negligence or wanton recklessness will not get the court’s aid, sympathy or indulgence. I tend to agree that Applicant cannot be a beneficiary of the Court’s indulgence in the circumstances.

In respect of the prospects of success, Mr. Magaya attempted to draw the Court’s attention to some figures which he stated showed that the Labour Officer had been wrong in granting the award to Second Respondent. The first issue is that his oral submissions are not contained inn the Founding affidavit. He tried to paly down the issue by stating that the application contained the documents he was referring to. As pointed out above, such averments were not in the founding affidavit. They are not evidence. The other point is that the same determination is said to be correct in respect of the First Respondent. The reasoning is the same. The facts analysed by the Labour Officer are the same. As pointed out by Mr. Mafongoya, the particular evidence sought to be relied upon by the Applicant is not placed before the Court in the Founding Affidavit.

There is an issue that was raised by Mr. Mafongoya as to the status of the deponent to the Founding Affidavit. He averred that the Resolution by Applicant granted authority to the Manager yet the present deponent ascribed to himself the position of Director. Mr. Magaya tried to explain that the positions were the same. I am of the view that nothing turns out on this as it could be a genuine error in giving titles. The name of the deponent in the authorization document is that of the deponent and it should be taken that he had the authority to represent the Applicant.

In the result, I am of firm view that Applicant has been unable to make out a good case for condonation in the circumstances.

The application for condonation of the late filing of an appeal is hereby dismissed with costs.

Coghlan, Welsh and Guest-	Applicant’s legal practitioners Mafongoya and Matapura Law Practice-		Respondents’ legal practitioners.