ZIMBABWE CATERING & HOTEL WORKERS UNION
TANGAAT HULLET ZIMBABWE
t/a HOTEL WORKERS UNION
SUPREME COURT OF ZIMBABWE
HARARE, JUNE 10, 2014
Mr P Mabundu, for the applicant
Ms M Mafo, for the respondent
Before GWAUNZA JA, in chambers in terms of r 5 of the Rules of the Supreme Court, 1964.
At the end of the hearing in this matter, I dismissed the application with costs. Despite the final effect of the order, the applicant has requested that it be furnished with full reasons thereof. These are they.
The applicant seeks an order condoning the late noting of an appeal and extending the time within which to appeal, against the judgment of the Labour Court in terms of Rule 6 of the rules of this Court.
EXPLANATION FOR THE DELAY
It is now trite that;
“The broad principles an appellate court would have regard to in determining whether to condone the late noting of an appeal are; the extent of the delay; the reasonableness of the explanation proffered for the delay; and the prospects of success of the appeal. See de Kuszaba-Dabrowski et Uxor NO 1996 RLR 60 (A) at 62 and 64; 1966 (2) SA 277 (RA); HB Farming Estate (Pty) Lt & Anor v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T) at 134A-B; Kombayi v Berkhout 1988 (1) ZLR 53 (S) 57 G-58A. And as BEADLE CJ observed in R v Humanikwa 1968 (2) RLR 42 (A) at 44B;
“The longer the delay in applying for condonation in the late noting of an appeal the more certain the court must be that there is a real chance of the appeal succeeding.”
The explanation given by the deponent to the applicant’s founding affidavit, Mr Magodi, for the delay in noting the appeal is that he only became aware of the order of the court a quo (granting leave to appeal to this Court), almost five months later on 26 March 2014. It is on this date that the applicant’s legal practitioners were addressed by the respondent’s legal practitioners, in a letter dated the same day, protesting at the applicant’s failure to file the appeal in question. The order granting leave to appeal to this Court was granted on 29 October 2013. Mr Magodi avers that he thereafter, and personally made efforts to secure a copy of the order of the court a quo without success until he was advised to get a copy from the court a quo’s own file copy of the order. He only managed to do so on 15 April 2014 hence could not file the appeal within the fifteen (15) days stipulated in the rules. No explanation has been tendered as to what efforts, if any, were undertaken by the appellant or its legal practitioners to obtain the order in question, before receipt of the respondent’s letter of 26 March 2014. A lack of due diligence on their part is therefore clearly exhibited.
I find accordingly that the applicant has not proffered a reasonable explanation for its failure to file its appeal with this court timeously.