Stewart Majaya v Tonderai Mutsago (N.O.) & Elizabeth Glaser Pediatric AIDS Foundation (EGPAF)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/11/2021
HARARE, 29 SEPTEMBER 2020
CASE NO. LC/H/APP/89/20
AND 12 MARCH 2021
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO. LC/H/11/2021

HARARE, 29 SEPTEMBER 2020 			         CASE NO. LC/H/APP/89/20

AND 12 MARCH 2021

In the matter between:

STEWART MAJAYA						APPLICANT

AND

TONDERAI MUTSAGO (N.O.)					1ST RESPONDENT

ELIZABETH GLASER PEDIATRIC

AIDS FOUNDATION (EGPAF)					2ND RESPONDENT

Before The Honourable KUDYA J

For the Applicant			K. Gama (Legal Practitioner)

For the 1st Respondent 		No appearance

For the 2nd Respondent		O. Kondongwe (Legal Practitioner)

KUDYA J:

This is an application for condonation of late filing of response to an application for the confirmation of a ruling in the matter between Stewart Majaya and Elizabeth Glaser Paediatric Aids Foundation for convenience referred to in this judgment as “the Foundation”.

On the hearing date the Foundation raised a point in limine to the effect that the condonation application was improperly before the court. Its reasoning was that the application for confirmation of a ruling fell foul of the decision in the matter of Isoquant v Darikwa N.O. CC2 6/20. In its view once it is granted that such is the position it means that the condonation application becomes academic as it would concern itself with a main matter patently defective to that extent. This judgment only deals with the point in limine raised.

A reading of Isoquant (Supra) makes it clear that once a labour officer or a designated agent gets to the stage of a certificate of no settlement he cannot go on to call for submissions and hear evidence as happened in the case at hand. For the fact that the Designated Agent went beyond conciliation and adjudicated the matter it is clear that his conduct breached Isoquant (Supra). As a result, the ruling which is intended to be confirmed is clearly out of step with what the law provides for and cannot be subject to confirmation or opposition.

The court is satisfied that the confirmation application is bad so indeed it would be academic to grant consideration in such a matter. The court is alive to the fact that condonation applications are not premised only on merits. See Jansen v Acavalos 1993 (1) ZLR 216 (S).

Indeed, it is the cumulative effect of the tenets of condonation being the reason for the default, merits and justice interests which rule the day. It however need be noted that in a case like the instant once where there is nothing to even consider condoning it would be folly to grant such relief (see McFoy v United Co. Ltd 1961 (3) ALL ER 1169 PC). In the ultimate the court is satisfied that the point in limine is merited and it should succeed.

As regards the costs there has not been any demonstrable basis by either party justifying a punitive order of costs. Both parties were within their rights to seek relief as they did and their failure in the court’s view cannot be penalized. It is the court’s considered view that a just order would be to make each party bear their own costs.

IT IS ORDERED THAT:

1.	The point in limine raised about the propriety of the condonation application being merited it be and hereby succeeds.

2.	The condonation application be and is hereby struck off the roll.

3.	Each party bears their own costs.

Gama & Partners, Applicant’s Legal Practitioners

Dube, Manikai & Hwacha, 2nd Respondent’s Legal Practitioners