Mercy Mutoro v Alex Masiya N.O. and City of Harare

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/05/20
HELD AT HARARE ON 16TH OCTOBER, 2019
CASE NO.
---------




THE LABOUR COURT OF ZIMBABWE	       	         JUDGMENT NO. LC/H/05/20

HELD AT HARARE ON 16TH OCTOBER, 2019       CASE NO. LC/H/APP/191/19

AND 10TH JANUARY, 2020

In the matter between:-

MERCY MUTORO						      		Applicant

And

ALEX MASIYA N.O.					      		1st Respondent

And

CITY OF HARARE						      		2nd Respondent

Before the Honourable Mhuri, J.

For Applicant		:	Mr. R. Mutasa (Legal Practitioner)

For 1st Respondent	:	No Appearance

For 2nd Respondent	:	Ms. R. Mhlanga (Legal Practitioner)

MHURI J.

The brief background of this matter which is generally common cause is as follows:-

On the 13th December, 2016 applicant was brought before the 2nd respondent’s Disciplinary Committee on a charge of contravening clause 11.5 (f) of the Harare Municipal Undertaking, Statutory Instrument 171 of 2010.

She was found guilty and dismissed from employment.

Aggrieved, applicant then referred her matter to the National Employment Council resulting in the 1st respondent issuing a ruling in favour of 2nd respondent, which meant that applicant’s dismissal was confirmed.

On the 7th February 2018 1st Respondent filed an application LC/H/LRA/94/18 with the labour Court for the confirmation of his ruling in terms of section 93 (5a) and (5b) of the Labour Act as amended.

On the date of the hearing, that is 2nd October, 2018, the Court struck off the application on the basis that such an application does not fall under the ambit of Section 93 (5a) and (5b) as the ruling was against applicant.

Again aggrieved by this turn of events, on the 18th March, 2019 Applicant filed this application for condonation of late filing of an application for review.

In terms of Rule 20(1) of this Court’s Rules, Statutory Instrument 150 of 2017, a party wishing to seek review of the proceedings is obliged to file his/her application with the Court within twenty-one (21) days from the date the proceedings were concluded.

The proceedings applicant intends to seek review were concluded on the 5th December, 2017 i.e. the date the ruling was issued.  Applicant filed this application on the 18th March, 2019.  This is a delay of over 2 years from the date the proceedings were concluded.

From the 2nd October, 2018 it is a delay of five (5) months from the date the application for confirmation of the ruling was struck off.

The requirements which applicant needs to address for consideration by this Court, are mainly:-

the length of the delay

the explanation for the delay

the prospects of success in the main matter i.e. review application.

balance of convenience

The delay between the 5th December, 2017 (date of ruling) and 2nd October, 2018 (date application was struck off) was satisfactorily explained by applicant and 2nd respondent is not taking issue with that period of delay.  It is correct that upon the promulgation of the Labour Amendment Act No. 5 of 2015 which amended Section 93 of the Labour Act by introducing Section 93 (5a) and (5b) which enjoined a Labour Officer to make an application to the Labour Court for the confirmation of his/her ruling, the Labour Court was accepting and dealing with applications where the ruling was against an employee.

This position was set aside by the Supreme Court in the case of

JOHN SHUMBA & 599 OTHERS

VS

ELVIS MACHIKITI

AND

DELTA BEVERAGES (PRIVATE) LIMITED SC 606/17

Applicant therefore had to await the determination of the proceedings i.e. confirmation of his draft ruling initiated by 2nd respondent in the Labour Court

The period of delay which applicant has to convincingly address the court on, is that between 2nd October, 2018 and 18th March, 2019.

The explanation given for the delay as can be gleaned from applicant’s founding affidavit is generally one.  She pleads financial incapacity to pay for the legal fees and costs required to file an application.  She averred that she had not been employed since her dismissal from employment.  As such she faced extreme challenges in gathering funds to enable her to photocopy the bulky record.

Five months is a long delay.  Applicant was legally represented at the time the application for confirmation was struck off.  From that date she was aware of the recourse she was to take.  It took her five months to file this application.  Financial incapacity is a challenge faced by most employees whose contracts of employment are terminated through dismissal.  For this Court to accept as satisfactory an explanation which cites financial incapacity it will be opening a Pandora’s Box where litigants will belatedly approach the Court citing financial challenges.

In paragraph 6.4.1 of applicant’s founding affidavit, it is averred that she undertook odd jobs in order for her to pay the legal fees and for costs of photocopying 5 records which were over 1000 pages.  In paragraph 6.4.2 it is averred that she had extreme challenges in gathering funds for legal fees for the second time and in particular photocopying costs.

What boggles the mind is applicant’s desire to keep photocopying the record which she had earlier photocopied.  Further, by November 2018 applicant had deposed to a very detailed founding affidavit in respect of this application and so one wonders why she had to wait until March 2019 to file the application.  It is not always necessary that one engages a legal practitioner solely for the purpose of filing an application.

I find that applicant’s explanation for the delay from October, 2018 to March, 2019 is not satisfactory.  On this note, she has failed to pass the second hurdle consequently I will not therefore proceed to consider the other requirements.

Applicant was sluggard in the manner she handled her case.  As McNally JA stated, the law will help the vigilant but not the sluggard.

NDEBELE VS NCUBE 1992 (1) ZLR 288

Also the adage that there must be finality to litigation applies in this case.

In the result, applicant having failed to pass the second hurdle, the indulgence applicant is seeking cannot be granted.

Accordingly it is ordered that the application for condonation of late filing of an application for review be and is hereby dismissed with costs

MANOKORE ATTORNEYS – Applicant’s legal practitioners

KANOKANGA & PARTNERS – Respondent’s legal practitioners