Tawanda Nyamazana v Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/72/16
HELD AT HARARE 4TH FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/72/16

HELD AT HARARE 4TH FEBRUARY 2016			CASE NO LC/H/APP/1256/15

& 19TH FEBRUARY 2016

In the matter between:

TAWANDA NYAMAZANA				Applicant

And

HEALTH SERVICE BOARD				Respondent

Before The Honourable B S Chidziva, Judge

For Applicant			Mrs M Newman (Legal Practitioner)

For Respondent		Mr N Matsika (Legal Officer)

CHIDZIVA, J:

This is an application for condonation for late filing of review against the respondent’s decision to decline the applicant Manpower Development Leave and his subsequent dismissal from work.

The brief background of this matter is that on 1 January 2013 the applicant proceeded on unauthorised Manpower Development Leave: Prior to that applicant had applied for the MDL on 30 November 2012.  The C.E.O. recommended the leave on 8 January 2013.  However the Health Service Board turned down the application on 29 May 2013.  The Board turned down the application based on the following reasons:

“1.	The Board issued out Circular No 3 of 2012 on MDL which prohibits members from being granted MDL on full time on full pay for members studying first degrees which are not a direct requirement to current post.

2.	Members violated the Third Schedule (section 40 (3) (a) paragraph 9 of the Health Service Regulations 2006 by having already gone abroad to pursue studies without the Board’s approval.”

The applicant was also given the option to resign from the Health Service in order for her to pursue his studies from the effect of assumption of studies.  The applicant was to tender his resignation by 30 June 2013.  The applicant did not resign but appealed to the Health Service Board to approve his application.  On 24 July 2013 the appeal was also turned down.  Applicant was eventually discharged from service on 21 August 2013.

On 22 October 2015 the applicant then filed an application for condonation of late filing of review of the Board’s decision to decline him Manpower Development Leave and his subsequent dismissal from work.

Factors to be considered in such applications were listed in the case of Bishi v Secretary for Education 1989 (2) ZLR 240 as follows

the degree of non-compliance with the rules.

the explanation therefore

the prospects of success

the importance of the case

the convenience of the court

the avoidance of unnecessary delay in the administration of justice

the demands of justice

The Board turned down applicant’s appeal on 24 July 2013.  He only applied for

Condonation on 22 October 2015.  It took applicant almost two years to apply for review or condonation for late filing of review.  Applicant has not provided any reason for such an extent of delay for this court to make appropriate considerations on the degree of lateness.  In the case of Zimbabwe Banking Corporation v  Masendeke 1995 (1) ZLR 400 it was stated that

“Wilful default occurs when a party, with full knowledge of the service or set down of the matter and of the risks attendant upon default, freely takes a decision to refrain from appearing.”

The applicant stated in his application that

“I was also trying to concentrate on my studies without attracting unnecessary distractions.”

This clearly shows that applicant did not take due diligence in trying to resolve this issue.

Furthermore the applicant clearly violated the Health Service Board Regulations that that were enunciated in Circular No 2012.  The circular prohibited members from granting of Manpower Development Leave on full time and on full pay whilst studying for a first degree.  These laid down procedures were not selective.  To that end therefore this court cannot go on to  review laid down administrative procedures.

Applicant was given an option to resign by 30 June 2013 but he did not comply.  In the circumstances therefore this court finds that this application lacks merit.

Accordingly I order as follows

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

Kachere Legal Practitioners, applicant’s legal practitioners