Meaker Masedze v Zimpost (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/308/14
HELD AT HARARE ON 19TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/308/14

HELD AT HARARE ON 19TH MAY 2014			CASE NO LC/CON/H/404/13

& 6TH JUNE 2014

In the matter between:-

MEAKER MASEDZE				Applicant

And

ZIMPOST (PVT) LTD				Respondent

Before The Honourable L.M. Murasi, Judge

Appellant			In person

For Respondent		Mr C Kwaramba (Legal Practitioner)

MURASI, J:

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

The brief facts are that applicant was in the employ of respondent.  He was charged with fraud in that he submitted  fraudulent receipts with his Travelling and Subsistence claim.  The Regional Hearing Committee (RHC) found him guilty and recommended his dismissal.  He appealed to the National Hearing Committee (NHC) which dismissed his appeal.  He did not file his application for review timeously, hence this application.

In his application, applicant submits in his founding affidavit that the National Hearing Committee only availed the results of the hearing on 28 February 2013.  Applicant also lays the blame on the fact that the Union, the respondent and the Permanent Secretary in the Ministry had promised to consider the issue of amnesty.  Applicant only made this application on 7 June 2013.

Respondent submitted that there was no reasonable explanation advanced by applicant for the delay.  Respondent stated that the delay of four (4) months remained unexplained.  Further, it was submitted by respondent, that applicant does not address the issue of prospects of success in the application.  In fact, in view of applicant’s concession that he was guilty, there were no prospects of success on review.

In dealing with such matters, the consideration is that the explanation for the delay must be reasonable and reasonableness can only be ascertained from the circumstances of the case.

The record shows that the applicant was availed the minutes of the National Hearing Committee on 28 February 2013.  Applicant only filed this application on 7 June 2013.  Applicant in his submissions stated that he was a lay person and got advice at a later stage.  He was also waiting for the outcome of the promised amnesty.   In his oral submissions he also stated that he had lost hope.  The Court is of the view that the last explanation of losing hope is the more plausible explanation.  Applicant only thought of pursuing this matter at a very late stage.  The three explanations are clearly inconsistent with each other.  Can this explanation be deemed to be satisfactory in the circumstances?  The Court is of the view that it is not.  As stated in The Civil Practice of the Supreme Court of South Africa by Hebstein and Van Winsen at page 898, condonation of the non-observance of the rules is by no means a mere formality.  This authors further state that it is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance.  Applicant has been unable to explain this away.

The Court will now turn to the prospects of success on review.  Applicant was charged with fraud.  Applicant  does not dispute this finding.  Applicant sought to imply that respondent was not in compliance with Statutory Instrument 1 of 2012 in that the rates that  were being used were not the ones that were provided in the statute.  Applicant did not give any figures to demonstrate this.  This is not to say that this would have exonerated him from the guilt that is attached to him as the evidence in the record is overwhelming.

Applicant further stated that he was not given an opportunity to present his case before the National Hearing Committee and that the National Hearing Committee only took twenty (20) minutes to deliberate his matter.  The Code used by the respondent gives the National Hearing Committee discretion on whether to call a party to the hearing or not.  As submitted by respondent, the National Hearing Committee may call a party to clarify unclear points.  Further, applicant has not demonstrated that the failure to call him to address the National  Hearing Committee was prejudicial to his case.  The other issue applicant raises is the time within which the appeal was determined.  He alleges that the National Hearing Committee could not have deliberated fully on his case during the time that is reflected in the minutes.  The Court is  of the view that applicant’s matter was clear-cut and no serious issues arose for determination and it was indeed possible to deliberate the matter fully in the given time.

Applicant further alleges that if the National Hearing Committee had granted him audience, it might have been lenient to him.  An appeal in terms of the Code is dealt with on the papers and applicant has not been able to show that he suffered any prejudice.  As far as leniency is concerned, respondent was of the view that applicant’s case was of such a serious nature as to warrant dismissal.  It is indeed trite that where an employer has made a decision to dismiss, an appellate court should be slow to overturn such decision unless there is evidence that it was irrational or unreasonable.  This was stated in British Leyland UK Ltd v Swift [1981] IRLR 91 at 93:

“... was it reasonable for the employer to dismiss him?  If no reasonable employer would have dismissed him then the dismissal was unfair.  But if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.”

The Court is of the considered view that a reasonable employer would have dismissed applicant in the circumstances.  There are indeed no prospects of success on review.

In light of the foregoing, the Court is of the view that the application is without merit and is accordingly dismissed.

There is no order as to costs.

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners