Tinashe Chiwanda v Baines Avenue Clinic

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/244/2023
HARARE 13 JULY 2023
CASE NO LC/H/309/23
31 AUGUST 2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 13 JULY  2023

31 AUGUST 2023

JUDGMENT NO LC/H/244/2023 CASE NO LC/H/309/23

TINASHE CHIWANDA	APPLICANT

BAINES AVENUE CLINIC	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant		Ms T. Barangwe, Unionist	- For Respondent	-	Mr R. Kadani, Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of a belated review. The application was made in terms of Rule 22 of the Labour Court Rules S.I. 150/17. Respondent opposed the application. The matter shall be dealt with per headings below:-

Delay

The proceedings which applicant intends to take on review were concluded on the 25th January 2023. Rule 20 requires that a review be filed within twenty-one (21) days of the conclusion of the impugned proceedings. The prescribed period in casu lapsed on the 23rd February 2023. Applicant then filed the present application, together with a draft of the intended review, on the 28th April 2023. Thus there was a delay of two (2) months.

Explanation

The reasons for delay ae set out in applicant’s founding affidavit thus,

“18 Further the delay was not deliberate but I could not raise court costs in time since after my dismissal I was unable to cope up with family demands as I have young child who was admitted in hospital during and after my dismissal.

19 It is for the aforesaid reasons that my application for review was slightly delayed but I have prospects of success”

Prospects

The draft grounds for review are as follows;

“1. The Appeals Officer lacked jurisdiction to hear the appeal as Respondent’s time had lapsed in terms of the applicable code.

The Appeal’s Officer erred and misdirected himself by confirming Applicant’s dismissal when the evidence relied on was led from witnesses who lacked locus standi as they were not listed on the charge sheet in terms of the applicable code

The Appeals Officer further erred and misdirected himself by upholding the dismissal of Applicant when the annexures used by the hearing officer were not part of the evidence given to Applicant.

The Appeals Officer also erred and misdirected himself by ignoring a request by Applicant to convene a meeting for the correction of minutes

Further the Appeals Officer erred and misdirected himself when he allowed complainant’s legal practitioner to appear at appeal stage without applying for an assumption of agency without having been involved from the start of proceedings.”

Analysis

The applicable law was set out in the matter

Kodzwa v Health Secretary 1999(1)ZLR 313(S) where the venerable Sandura JA as he then was opined at p 315E

“It is, therefore, well established that the court has a discretion to grant condonation when the principles of justice and fair play demand it; and when the reasons for non- compliance with the rules have been explained by applicant/appellant to the satisfaction of the court.”

In the present matter the reason for delay was lack of funds to cover court costs. That was because of the loss of income caused by his dismissal which was aggravated by costs of care for his child who was in hospital. Applicant’s plight is understandable. A delay of 2 months in these circumstances is not unreasonable. A perusal of the draft grounds for review shows that applicant does have an arguable case. Most of the grounds deal with procedural issues which are proper matters for review. Respondent sought to discredit the merits of the grounds. However at this stage applicant needs only raise an arguable case. The merits of the grounds is a matter for the review court.

CONCLUSION

It is therefore concluded that the application for condonation was well made and justice and fair play demand that it be granted.

Wherefore it is ordered that;

The application for condonation be and is hereby granted;

Applicant may file his application for review within ten (10) days of this order; and

Each party shall bear its own costs.

J-U-D-G-E