No. SC 50/07
Appeal No. 69/05
NEWPEAK MANUFACTURING (PVT) LTD
COURT OF ZIMBABWE
SEPTEMBER 12, 2007
Applicant in person
P Machaya, for the respondent
Chambers, in terms of r31 of the Supreme Court Rules.
After hearing the parties, I dismissed the application and
indicated the reasons would follow. These are the reasons.
The applicant sought an order granting him leave to appeal, out of
time, against the judgment of the Labour Court in Case No.
LC/H/262/2002. In that judgment dated 25 January 2005, the Labour
Court dismissed the applicant’s appeal against his retrenchment
from employment with the respondent.
In his founding affidavit, the applicant correctly noted that it
was incumbent upon him to –
give a good explanation for the delay in filing his notice of
show that he had good prospects of success on appeal.
In relation to the first point, that is, the delay in filing his
appeal, the applicant explained that even though the judgment
Labour Court was dated 25 January 2005 and despite numerous
enquiries, he had only been availed of the judgment on 11 March
The respondent in its opposing affidavit conceded the truth of this
averment, since it had also received the same judgment
The applicant asserted albeit without any substantiation, that the
Labour Court had attributed the delay in availing the judgment
parties, to the fact that the relevant file had “somehow”
In view of the fact that the respondent too, was not able to access
the judgment until March 2005, I was inclined to give the applicant
the benefit of the doubt regarding the reason for his failure to
access the judgment in question timeously. It follows from this
the applicant had given a satisfactory explanation for the delay in
filing his notice of appeal.
Having passed the first test, the applicant still had to persuade the
Court that he enjoyed good prospects of success on the merits
In para 15 of his founding affidavit, the applicant asserted only as
follows in this respect:
“Therefore on prospects of winning the case, I was simple (sic)
victimized by the management of Newpeak Manufacturing for legally
trying to safeguard my interests.”
The Labour Court considered this averment and made a factual finding
encapsulated in the following comments lifted from its judgment:
“Apart from the mere say so from the bar by Mr Sithole,
(appellant’s counsel) there is no evidence that shows that
appellant was victimized. The appellant was in Court and Mr
did not see it fit to put him on the stand to adduce evidence of his
victimization… So, in the absence of any evidence
victimization, this ground is dismissed.”
Before me, no new argument was advanced to challenge the
correctness of this factual finding by the Labour Court. The
did not, in other words, establish that if the Labour court
erred in this finding, it did so so grossly that it erred on a point
I found accordingly, that he had failed to prove any prospect, much
less a good one, for success on appeal, on this ground.
The applicant sought to rely on one other main argument in a bid to
persuade the Court that he had good prospects of success on
He charged that the court a quo erred by finding that the
correct procedures were followed in the process of his retrenchment.
In particular, the appellant charged
that the Minister of the Public
Service, Labour and Social Welfare had signed the relevant
retrenchment papers “under duress”.
Quite apart from the fact that the Minister himself has not tendered
any evidence on the alleged duress, the appellant did not
possible pressure could have been applied on the Minister, by whom,
or why, to induce him to sign the retrenchment papers.
respondent observed in this respect, and justifiably so on the
evidence before the Court, that the Minister concerned had
not in any
event been made a party to these proceedings. Thus, even if for some
reason the Minister had indeed been forced to
sign the papers under
duress as claimed by the applicant, the latter would have had some
difficulty in proving this point, without
involving the Minister in
The Labour Court, in my view, correctly dismissed this particular
ground of appeal. I was accordingly not persuaded any prospects
success on appeal could flow from it.
The applicant made other submissions relating to factual findings of
the Labour Court, without averring, much less proving, that
Labour Court had so grossly erred in such findings as to have erred
When all was said, the applicant, I found, had failed to show that he
enjoyed any prospects of success on the merits of his intended
Hence my dismissal of the application.
Coghlan, Welsh & Guest, respondent’s legal