Court name
Supreme Court of Zimbabwe
Case number
SC 41 of 2007
Civil Application 318 of 2006

Shumba v Commercial Bank of Zimbabwe Ltd. (318/06) (SC 41 of 2007, Civil Application 318 of 2006) [2007] ZWSC 41 (09 July 2007);

Law report citations
Media neutral citation
[2007] ZWSC 41












REPORTABLE ZLR 35


Judgment No
SC. 41/07


Civil
Application No. 318/06








LYTON
SHUMBA v COMMERCIAL BANK OF ZIMBABWE LIMITED








SUPREME
COURT OF ZIMBABWE


HARARE,
OCTOBER 25, 2007








T
Biti,
for the applicant





P
Machaya,
for the respondent







Before
CHEDA JA: In Chambers in terms of r 31 of the   Supreme
Court rules.









After this matter was set down for hearing on appeal it was struck
off the roll because the notice of appeal had been filed out
of time
and no application for condonation had been made.







This is the application now before me.







In considering an application of this nature the following broad
principles need to be taken into account -








  1. the extent of the delay;



  2. the reasonableness of the explanation for the delay;



  3. whether the litigant himself is personally responsible for the
    delay;



  4. the prospects of success on appeal, should the application be
    granted;



  5. the possible prejudice to the respondent should the application be
    granted.








The first three and the fifth considerations present no difficulty in
this case.







In De Kuszoba Dabrivski & Anor v Steel No 1966 RLR 60 (A)
it was held that the negligence of the applicants attorneys should
not be overstressed in penalizing an applicant
if he is not
personally at fault.







In this case an explanation has been given, and I accept that the
appellant was not personally at fault.







However, it is the fourth consideration which is most important in
this matter. I point out here that I am dealing with this matter
as
a chamber application. It was served on the respondent on 9 October
2007. There is no response from the respondent as at this
date, 31
October 2007. However, the fact that there are no opposing papers
does not bar me from dealing with the matter as I see
it fit.







I have not invited the applicant to file any Heads of Argument as the
matter was ready for appeal,both parties having filed their
Heads.







I do not consider that on the merits there can be any other issues
for submission by the applicant which are different from what
has
been submitted in his heads for purposes of appeal.







I will therefore take into account what the parties have submitted in
their appeal Heads as reflecting their position on the merits.







The applicant was employed by the respondent (hereinafter referred to
as “CBZ”). At some stage the respondent moved him and
other
employees to the CBZ’s nominees. A dispute arose over the
applicant’s status of employment. He argued that he was
still
employed by CBZ and succeeded in the High Court.







Subsequent to that, CBZ offered some of its employees a retrenchment
package. The applicant got to know about the package.







In his own words, in the affidavit supporting this application, he
says:



“Over the course of time, CBZ Nominees completed the process of
collecting the debt due to the respondent and in many cases wrote
off
the debt. The net result was that there was an effective shut down
of CBZ Nominees, resulting in it taking the unilateral
decision that
it wished to retrench those employees that were working for it. I
applied for that voluntary retrenchment
, on the basis that this
was a mere thank you for the service that I had rendered to CBZ
Nominees and without prejudice to my rights
against the employer, the
respondent in casu (my underlining).







On 30 August 2002 I signed an agreement, in which I accepted a
retrenchment package but made it clear that this was not with
prejudice
to my rights against the respondent.”











The applicant is either confused or is simply being dishonest on
this point.







Having contended that CBZ Nominees were not his employers it is
strange that he could ask to be retrenched by them instead of
being
retrenched by his proper employers.







In fact the letter by CBZ Nominees dated 17 January 2002, shows
that the employees, including the applicant, asked that the
retrenchment packages that CBZ offered its employees be extended to
them.







The retrenchment package was certainly that of CBZ and not its
Nominees.







The letter which he signed on 30 August 2002 clearly made reference
to his conditions of employment and all the benefits, Medical
Aid,
School fees, the Bank’s Group Funeral Cover Scheme and Mortgage
Bond Cover.







He does not suggest that he had such a package arranged with CBZ
Nominees who were not his employers.







I am satisfied that the applicant fully understood the retrenchment
package and its effect when he signed it, and that in fact
he had
asked for it when he learnt that CBZ had offered that package to its
employees.







I am also satisfied that in view of the above the appeal that he
wishes to pursue has no merit and will not succeed.







In the result, the application for leave to note his appeal out of
time should not be allowed.







The application is dismissed with costs.



















Honey & Blanckenberg, applicant’s legal practitioners



Gollop & Blank, respondent’s legal practitioners