City of Harare v Cloudious Kurauvone

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/164/2020
HARARE, 23 JUNE 2020
CASE NO. LC/H/164/2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/164/2020

HARARE, 23 JUNE 2020		             	        CASE NO. LC/H/APP/77/20

AND 17 JULY 2020

In the matter between:-

CITY OF HARARE					Applicant

And

CLOUDIOUS KURAUVONE			Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr T.K. Chiriseri (Legal Practitioner)

For Respondent		Ms F. Gororo (Legal Practitioner)

CHIDZIVA, J:

The applicant is applying for leave to appeal against the judgment of this court that was handed down on 31 January 2020.

The applicant had retired the Respondent at the age of 60 years instead of 65 years. Retirement at the age of 60 years was provided for in the Pension Fund. Retirement at the age of 65 years was provided for in the contract of employment.

This court found that the applicant had no lawful right to reduce the retirement age to 60 years.

The applicant submitted that this court had grossly erred by failing to exercise its discretion judicially by failing to consider all the relevant factors namely the degree of compliance explanation thereof, prospects of success of the review, importance of the case, respondent’s interests in the finality of judgment convenience to the court and the avoidance of unnecessary delays in the administration of justice.

Applicant further submitted that the court erred by finding that the Respondent’s explanation for delay was reasonable when the Respondent had taken a sluggard approach.

In applications of this nature case authorities have stated that the applicant should establish that there are good prospects of success on appeal. The applicant should also establish that the appeal for which leave is sought is on a question of law. This was clearly stated in the case of Fiona Chikuranhe & Ors vs ZB Financial Holdings SC 10/08 where it was held that,

“Complying with the provisions of Section 92 F (3) should not be regarded as a mere formality. The party seeking leave must show inter alia that he has good prospects of success on appeal. In other words leave is not granted simply because a party has sought such leave.”

In the case of Canesius Chipangura vs Environmental Management Agency SC 35/12 it was held that

“In an application of this nature, one ought to consider whether there are any prospects of success on appeal.”

It is this court’s view that the applicant has no prospects of success on appeal because the Respondent’s contract of employment indicated that he was suppose to retire at the age of 65 years. There is nothing on record to show that he had agreed to retire at the age fixed by the pension fund.

In the circumstances the application be and is hereby dismissed with costs.

Chihambakwe, Mutizwa & Partners, applicant’s legal practitioners

J. Mambara & Partners, respondent’s legal practitioners