Greatmore Chinyanga v Harare Quarry Private Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/40/2022
HARARE, 19 OCTOBER 2021
CASE NO LC/H/136/21
AND 25 FEBRUARY 2022
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/40/2022

HARARE, 19 OCTOBER  2021 			    CASE NO LC/H/136/21

AND 25 FEBRUARY 2022

In the matter between: -

GREATMORE CHINYANGA						APPLICANT

And

HARARE QUARRY PRIVATE LIMITED				RESPONDENT

Before the Honourable Kudya J

For the Applicant		A. Chambati (Legal Practitioner)

For the Respondent		H. Muromba (Legal Practitioner)

KUDYA, J:

This is an application for condonation of late filing of an application for review.

The application is at the instance of the applicant employee who was supposed to have sought review of his matter within 22 days of the day he got the decision in his matter.  He argues that a 22 day delay is not inordinate and that he has an arguable case on review.

On the other hand, the respondent employer says that whilst 22 days may not be classed in ordinate the applicant does not have an arguable case since the technical issues he raises do not detract from his guilty verdict and the dismissal penalty meted in his case.

It is settled law that the success in condonation cases is based on the cumulative effect of all the condonation tenets (See Jansen vs Acavalos 1993 (1) ZLR 216(5). Each of the tenets is discussed below: -

Degree and explanation of non compliance.

Applicant is out by 22 days to file his case.  He says he could not file on time because he was not legally represented then to appreciate that the process of review and appeal are separate processes.  That he did not appreciate the distraction is borne out by his appeal papers on record which sought to mingle both the appeal and review issues.

It is granted that ignorance of the law is not an excuse but there is need to observe that indeed the 22 day period is not inordinate and could be used to condone the applicant.

Prospects

The critical issue in the review matter is that the committees which dealt with this matter were not properly constituted. To that end it is applicant’s view that procedural justice needs   to be done by reconvening the hearing properly See Proton vs Takaendesa SC 126-04. A reading of the composition of adjudicating bodies shows that there was a breach in the composition such is an arguable issue which applicant can take before the court.  The matter can therefore succeed on the basis of this ground.

Importance of the case

Respondent is of the view that since applicant conceded the overlook it means that there is no need to allow condonation to hear the application.  It however misses the point that it charged him with theft which was incongruent to what the matter concluded.  To that extent it is important that the review court be given a chance to look at the matter.  In the ultimate the application being merited noting the cumulative effect of the tenets it should succeed.

IT IS ORDERED THAT

Application for condonation of late noting of an appeal being merited  it be and is hereby granted with each party bearing own costs.

Chambati, Mataka and Makonese Attorneys,  Applicant’s Legal Practitioner

Kantor and Immerman, Respondent’s Legal Practitioners