Dzikamai Santana Musiza v Minister of Transport and Infrastructure Development N.O. and The Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/43/2023
HARARE 1 FEBRUARY 2023
CASE NO LC/H/851/22
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/43/2023

HARARE 1 FEBRUARY   2023                              	CASE NO LC/H/851/22

9 FEBRUARY 2023

DZIKAMAI SANTANA MUSIZA				APPLICANT

AND

MINISTER OF TRANSPORT AND 			1st RESPONDENT

INFRASTRUCTURE DEVELOPMENT N.O.

AND

THE PUBLIC SERVICE COMMISSION			2nd RESPONDENT

Before the Honourable G. Musariri  Judge:

For  Applicant			K.T. Mkangamwi   (Legal Practitioner)

For Respondent			C. Chitekuteku  A.G.’s   Office

MUSARIRI, J:

C. Chitekuteku  Delay

The decision (dismissal for sexual harassment) sought to be appealed was made on the 1st August 2022. Applicant’s attorney deposed the founding affidavit.  She stated that they were instructed by applicant on 15th August 2022.  She waited for minutes of the disciplinary hearing which led to the impugned decision.  She then attempted to file the appeal on 7th September 2022 only to find that the appeal was out of time. Applicant  filed the present application on the 15th September 2022.  On this basis applicant argued that the delay in approaching his Court was short and the explanation therefor is reasonable.

Per contra Respondents argued that the delay was inordinate and the explanation given is unreasonable. The delay amounted to a few weeks which cannot be termed inordinate.  However the explanation given for the delay is implausible.  In the course of oral arguments minutes of the disciplinary hearing were handed up.  They are covered by a letter by applicant dated 6th September 2022. The letter is addressed to 1st respondent and sought minutes of the hearing.  Yet his attorney claimed that they were waiting for the minutes in order to file the appeal.  The attorney does not say what she did and when, to get the minutes.  It appears that the minutes were only sought after prescribed period for appealing had lapsed.  In the circumstances the explanation for delay is unreasonable.

Merits

Applicant filed a draft notice of appeal containing 6 grounds of appeal. The grounds are repetitive and basically raise a single issue, that is, the argument that the disciplinary authority wrongly relied on the uncorroborated evidence of the complainant.  I have perused the minutes of the hearing.  The evidence of the complainant is corroborated by the evidence of her sister.  Further and in any event, corroboration is not required as appears from section 52 of the Civil Evidence Act (Chapter 8:01) which provides that;

“subject to any other law, a court may make a finding and base its decision on the evidence of a single competent and credible witness.”

The disciplinary authority found the complainant to be a credible witness. That finding, which is a finding of fact can only be upset on appeal on the basis of irrationality.  See:  Hama  v National Railways of Zimbabwe 1996(1) ZLR 664(S) at 670C.  None such irrationality has been pleaded or shown by the minutes of the hearing or findings by the disciplinary authority.

CONCLUSION

In light of the aforegoing observations and analysis, it is concluded that the application for condonation lacks merit and ought to be dismissed.

WHEREFORE IT IS ORDERED THAT

The application for condonation be and is hereby dismissed; and

Each party shall bear its own costs.

,

G MUSARIRI

J-U-D-G-E