Chronicle Editor
Mashudu Netsianda, Senior Court Reporter
THE Supreme Court has given former Victoria Falls housing director Mr Lot Siatimbula the greenlight to launch an appeal against a Labour Court ruling which dismissed his application for leave to appeal against its decision.
Last year, Mr Siatimbula lost a bid in the Labour Court to be reinstated to his job and subsequently applied for a leave to appeal at the Supreme, which was dismissed by Justice Mercy Moya-Matshanga.
Dissatisfied with Justice Moya-Matshanga’s ruling, Mr Siatimbula filed an application at the Supreme Court seeking leave to appeal against the judgment.
Mr Siatimbula was employed as director for Housing and Community Services until February 2017 when his contract was terminated after misconduct charges were levelled against him.
This was after he allocated a housing stand to his nephew Mr Sena Mumpande in 2016, purporting that council had made a resolution for the beneficiary to buy the stand number 1585 at 15 percent of the total cost of US$48 410.
Mr Siatimbula paid for the 3 300 square-metre stand on behalf of Mr Mumpande and he later sought a reversal of the payment before council raised the charges and suspended him.
He was eventually dismissed from work after an external disciplinary committee led by Advocate James Moyo of Calderwood, Bryce Hendrie and Partners found him guilty and recommended his dismissal from work.
He made a number of unsuccessful applications at the High Court seeking to reverse his dismissal before approaching the Labour Court with an application for condonation for late noting of an appeal.
Justice Evangelista Kabasa, who was then a judge at the Bulawayo Labour Court, in July 2019 struck off his application which was made in terms of Rule 22 of the Labour Court Rules Statutory Instrument 150/2017.
The latest ruling by Supreme Court judge Justice Tendai Uchena follows an application for leave to appeal by Mr Siatimbula through his lawyer Mr Zibusiso Ncube of Ncube and Partners.
In papers before the court, the City of Victoria Falls was cited as a respondent.
Justice Uchena granted Mr Siatimbula leave to appeal against the Bulawayo Labour Court judge Justice Moya-Matshanga’s decision under case number LC/MT/29/21.
“The applicant be and is hereby granted leave to appeal against the decision under LC/MT29/21 to the Supreme Court.
“The notice of appeal should be filed within 10 days of the granting of this order, and the costs shall be in the cause,” ruled the judge.
In his founding affidavit, Mr Siatimbula said that Justice Moya-Matshanga misunderstood his intended first ground of appeal.
He argued that the Labour Court was wrong when it relied on Practice Directive 3 of 2013 to conclude that the application for condonation of late filing of an appeal and its extension was a nullity.
Mr Siatimbula said the correct application ought to have been for reinstatement of the appeal that was struck off by Justice Kabasa under case number LC/B/107/19.
“Since the Labour Court made a substantive finding that the application before it was a nullity then surely it could not have dismissed a nullity.
“There can be no dismissal of a matter on the merits where there is a finding that the proceedings are a nullity and not properly before the court,” said Mr Siatimbula.
“I am of the firm view that the points raised on the draft notice of appeal raise questions of law. There is reasonable possibility that the Supreme Court may arrive at a different finding from that of the Labour Court.”
Mr Siatimbula argued that the intended appeal has prospects of success and leave ought to be granted.
In its heads of argument through its lawyers Dube, Nkala and Company, the City of Victoria Falls argued that Mr
Siatimbula has not been prudent in bringing his appeal, saying it lacked prospects of success.
“The applicant (Mr Siatimbula) delayed the matter by more than three years and during that time he also dragged the council to multiple fora. The council suffered extensive costs due to the applicant’s mishandling of the matter,” said the lawyers.
The council said Mr Siatimbula has no prospects of success on appeal, arguing that an external and neutral disciplinary authority, upon considering all material evidence placed before it found the applicant guilty of misconduct that he was charged for.
The City of Victoria Falls said Mr Siatimbula failed to show that the factual findings as well as the sentence of the disciplinary authority were grossly unreasonable.
“Furthermore, the disciplinary authority was appointed by both parties to settle the dispute as to whether the applicant has committed misconduct.
“The evidence placed before the disciplinary authority clearly showed that the applicant had violated various departmental procedures and the terms of his contract of employment,” said the lawyers.
“Wherefore, respondent prays for the application for leave of appeal be dismissed with costs awarded in favour of the council.” — @mashnets
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