RONI Masekesa VS ARM Heyes Optometrist (Pvt) LTD & Prisillah Mgazi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/173/2020
HARARE, 19 MAY 2020
CASE NO. LC/H/APP/219/19
AND 31 JULY 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/173/2020

HARARE, 19 MAY 2020 					CASE NO. LC/H/APP/219/19

AND 31 JULY 2020

In the matter between:

RONI MASEKESA							APPLICANT

versus

ARM HEYES OPTOMETRIST (PVT) LTD			1ST RESPONDENT

PRISILLAH MGAZI						2ND RESPONDENT

Before The Honourable Makamure  J

For the Applicant			In person

For the 1st Respondent		Mr T. Tandi (Legal Practitioner)

For the 2nd Respondent		No appearance

MAKAMURE J:

This is an application for condonation of late filing an application for review. In order for an application of this nature to succeed, the application must show:

a.	the extent of the delay

b.	a reasonable explanation for the delay.

c.	prospects of success should the matter go on review.

See Chigovanyika v Dairiboard Zimbabwe Ltd & Anor SC 121/04

And as far as review matters before this court are concerned, they should satisfy the requirements of section 92 EE, of the Labour Act [Chapter 28:01] (the Act). The section provides that the grounds on which a matter is brought on review are:

“(a)	absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b)	interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned;

(c)	gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.”

The proceedings which are under scrutiny arise from a draft ruling made in terms of section 93(5a) (a) and (b) of the Act. The labour officer made a ruling which was in favour of the employer. Indeed, as the applicant has noted, the Labour Officer was not required to seek confirmation. Such error led to the matter being struck off the roll by Supreme Court upon Applicant’s appeal to that Court. What this means is that the Labour Officer’s order is extant i.e that the respondent then and 1st respondent herein had no case to answer. The finding was against the present applicant.

In his founding affidavit the applicant simply stated as follows and I quote:

“1.	I was employed by 1st Respondent and I resigned from its employ on constructive dismissal grounds.

2.	I lodged my claim with 2nd Respondent who ruled in favour of 1st Respondent.

3.	The 2nd Respondent, having made a ruling in favor of the 1st Respondent was not empowered to apply for confirmation of such ruling.

Consequently, on 12th February 2019 the Supreme Court set aside the application for confirmation proceedings and the Labour Court Order (LC/H/444/17) handed down by Honourable Justice Manyangadze on 30 June 2017.

4.	I collected the Supreme Court Order on 7 March 2019.

5.	As regards the merits of the matter there can be no doubt that I have more than a fighting chance on review.”

In all this what is clear is that he resigned from employment and the Labour Officer made an error. He also states that he has more than a “fighting case on review”. The applicant is required to state the extent of the delay which has resulted in him seeking to be condoned. He has not done so. He must state whether or not such delay is inordinate. Further he does not say whether or not under the circumstances the delay is excusable.

As correctly argued by applicant, this court is meant to ensure among other things, that there is social justice at the workplace. However, a court cannot simply ensure social justice without being empowered to do so by the parties, applicant in this matter. So in short, the affidavit falls far short of the requirements to be met in order for the application to succeed. The court cannot on its own act outside that founding affidavit. It is an established principle in this jurisdiction that an application falls or stands on its affidavit. The present affidavit unfortunately is inadequate and does not sufficiently support the application.

As regards the grounds for review, all eight (8) of them raise evidentiary issues in one form or other. Even where irregularity is alleged, it is cured by evidence. As such therefore the provisions of section 92 EE of the Act have not been met. Thus the application is not properly before the court.

Mr Tandi has convincingly urged the court to grant costs on the higher scale. However, it is the right of an individual to seek recourse with this court. One does not want to make an order for costs which order may appear to intimidate a party from seeking a remedy from the court. For that reason the party in the present matter will not be saddled with punitive costs. It is however sufficient that an order for costs will be made against the losing party.

Having stated the above, the following is the order.

The application for condonation of late filing of an application for review be and is hereby dismissed with costs.

Kantor & Immerman, 1st Respondent Legal Practitioners