Martin Jongwe v National Foods Limited and Labour Court (Bulawayo) – Kabasa J

The applicant, Martin Jongwe, sought leave to appeal against a judgment by Mathonsi J handed down on 14 June 2018 (HB 147/18, case number HC 2606/17). Mathonsi J had dismissed the applicant's application for condonation for late filing of his notice of appeal against a judgment by Kabasa J of the Labour Court. The applicant had earlier made the same application before Makonese J in HC 2016/16, which was struck off the roll on 21 September 2017 as it was improperly before the court, having been filed out of time without seeking condonation. The applicant had explained that although aware of the 8-week requirement for filing a review application, he decided to first try seeking leave to appeal, and after failing, fell back on a review application. He claimed he misunderstood the rules. The applicant appeared in person and filed a condensed 16-page founding affidavit which contained attacks on three judges and contained irrelevant and argumentative matter.

• Whether leave to appeal is required where a judgment is final and definitive in nature rather than interlocutory
• Whether the court can grant leave to appeal against a final judgment dismissing a condonation application
• Whether a judge can revisit and review a judgment by a fellow judge of the same court
• Whether the application for leave to appeal was properly before the court

The applications in both HC 1928/18 and HC 1929/18 were dismissed with costs of suit on the ordinary scale.

Leave to appeal is only required and appropriate when a judgment is interlocutory in nature, not when the judgment is final and definitive. A judge cannot revisit and review a judgment by a fellow judge of the same court. Applications for leave to appeal against final judgments are improperly before the court as there is no legal provision or requirement in the High Court Act or court rules to seek leave to appeal before appealing such judgments. Condonation for late filing is not granted merely because a party has failed in pursuit of some other remedy or after trying luck elsewhere.

The court observed that the applicant's conduct in attacking three judges in his founding affidavit, sometimes just short of insulting them, cannot be condoned. The court described the founding affidavit as containing "a list of words arranged into long winding sentences, even if they be unrelated, but somehow grouped together merely by their proximity in the hope that something meaningful and valid may emerge of its own from those words." The court warned the applicant, though an unrepresented but very litigious litigant, against continuously putting everyone else into unnecessary expense and waste of time, noting that next time he may not escape punitive costs.

This case reinforces important principles of civil procedure in Zimbabwean law regarding: (1) the distinction between final and interlocutory judgments and when leave to appeal is required; (2) the principle that a court cannot review its own judgment and a judge cannot review a fellow judge's judgment of the same court; (3) the proper procedure for seeking appeals; and (4) the consequences of repeatedly filing improper applications. The case also demonstrates the court's willingness to warn litigants, particularly unrepresented ones, against vexatious litigation and the potential for punitive costs.