Joseph Shoma v Terrence Magamu T/A Total Marondera Service Station

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2024
HARARE, 16 OCTOBER 2024
CASE NO LC/H/866/24
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H//2024

HARARE, 16 OCTOBER 2024	 			  CASE NO LC/H/866/24

In the matter between:-

JOSEPH SHOMA

And 						                       APPLICANT

TERRENCE MAGAMU T/A TOTAL			RESPONDENT

MARONDERA SERVICE STATION

Before the Honourable Kudya J

For the Applicant 			N. T Tsarwe (Legal Practitioner)

For the Respondent			M. V. Kasvaurere (Legal Practitioner)

KUDYA, J:

This is an application for condonation of the late noting of a review application by the applicant employee.  The respondent employer is opposed to the grant of condonation relief citing the fact that, the applicant has not satisfied the condonation tests.

Background to the matter is that applicant, who was in the respondent’s employment as a forecourt attendant based at Total Service Station Marondera was accused of tampering with company record relating to fuel pump readings.  This resulted in him appearing before a disciplinary committee on 12 January 2020.  The disciplinary committee found him guilty and dismissed him from employment.  He appealed internally and also to the NEC appeals committee.  His appeals were all unsuccessful.

He then decided to file a review application with the Labour Court.  By the time he did so he was already out of time to seek review relief.  He thus sought condonation relief which was granted to him.  He then filed his review application which was struck off by the court on the basis that his review grounds were not clear and concise.  He is still keen to have his review application heard.  He has therefore filed the instant application where he seeks to be condoned for the late filing of his review application.  The employer is opposed to the condonation relief as appears clearly below.

The tenets for condonation are settled See Jansen v Acavalos 1993(ZLR 216(S) J.  Each of the tenets is discussed below.

Excuse and extent of the delay.

Under this head, the reasonableness of the excuse and its extent is discussed.  The delay is about 4 years judging from the date when the applicant was dismissed from his job.  He says he wasted time trying to appeal against a decision where there was no proper record of proceedings and where reasons for his dismissal were not furnished. In particular, he attributes his delay to ill advice which he says he got from his representatives.  He states that due to his lay man status he was not aware that he should have proceeded with his matter as a review instead of an appeal.

It is settled that, where the excuse is hinged on the errors of one’s representative such representative has to file with the court an affidavit confirming their role in the delay of the matter. See Lunat v Patel SC47/22.  The excuse given therefore remains a bald excuse without support.

In any event, when the applicant had been excused by the court on the delay notwithstanding, he blew the opportunity when he went on to file a review application with rumbling grounds which saw the review application being was struck off on 18 July 2024.  He has thus offended the maxim that the law helps the vigilant and not the sluggard See Ndebele vs Ncube 1992(1) ZLR 288.  The excuse and the period of delay is therefore unreasonable in the circumstances.

Prospects

This is one of the critical tenets of condonation relief.  The question is not whether the party will succeed but whether he has a made out a case which can detain the court.  The review construct is set out in section 92EE of the Labour Act Chapter 28.01.  Applicant says he wants to approach the review court and show it that the decision leading to his dismissal was made in biased circumstances.

He says the proof of the bias is that the record of proceedings is inarticulate and that there were no reasons given for the guilty verdict.  He also says mitigating before the verdict was consistent with a predetermination of the matter.  In a nutshell it is his view that the disciplinary proceedings were a sham and a mere formality to dismiss him.

In response to the prospects, tenet the employer is of the view that applicant does not have a review case which can detain the court.  It says that the bias test is a real test and not just a perceived one. See Nhari v ZABG SC6/20.  It states further that, the issues of the record and reasons for the decision are purely appeal issue See Sable Chemical v Easterbrook SC18/10 law on what constitutes a point of law.  It is therefore, its conclusion that, it would be improper for the court to grant condonation relief for a review matter which is palpably an appeal one.

Appellant narrates the historical bad blood history between him and the employer dating back from when the employer took over his senior from Total Zimbabwe Private Ltd.  It is critical to note that such a narration does not answer the issues which applicant says he wants to take up on review.  As observed by the respondent, it is clear that the record and reasons for verdict issues being raised are not competent review grounds.  There is therefore no chance of their success on review.  They fail the test of what can detain the court in a particular case.  There being nothing meaningful to detain the review court, the prospects tenet therefore fails.

The rest of the tenets of condonation tenets are off shoots of the principal ones discussed above.  They are however commented on below for completeness of record.

On the aspect of importance of the case it is undoubted that the case is important to the applicant as he wants his job back or damages. That being the case it was therefore imperative on him to prosecute his matter diligently and not sluggishly as borne out by the striking off of his review case.  Such conduct whittles down the importance that he would want the court to say is evident in the case to him.

On the convenience of the court, it surely would be inconvenient for the court to grant condonation relief in a patently porous case as the one set out by applicant.

The interests of justice  and finality to litigation dictate  that, the decision which was made 4 years back relieving applicant of his job should not be revisited by the grant of condonation relief in a palpably porous review case.  Finality to litigation See Muwani v Mugumwa SC116/23 demands that the matter be put to rest and parties continue with their separate ways.

The court observed that, there were other technical issue raised in the pleadings about citation of non-existent employer.  The court deemed it unnecessary to delve much into that as that has now been settled by the correct citation of the parties which is evident from the proceedings striking off the review application.  It being a non-issue this court would not bother re hash	 it.  In the ultimate it is clear that no good case for condonation has been made out.  It should therefore fail.

IT IS ORDERED THAT

Application for condonation for late noting of an application for review being without merit, it be and is hereby dismissed with costs.

Tadiwa & Associates                                       Appellant’s Legal Practitioners

Dhaka Loghhtfoor & Stone Attorneys             Respondents’ Legal Practitioners