Aaron Nyarugwe v Dharwizi Transport (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/358/25
HARARE, 23 SEPTEMBER, 2025
CASE NO LC/H/820/25
and 01 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/358/25

Before the Honourable G. Musariri, Judge:

For Applicant	- A.Manyonga, Attorney

For Respondent	- H. Ndudzo, 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, 2017. Respondent opposed the application. Applicant’s founding affidavit stated that,

“5.8.	The 1st and 2nd Applicant received dismissal letters on the 11th of March 2025 from cheetah a courier while 3rd Applicant received a dismissal on the 18th of March 2025 via Fedex.

The dismissal letters prompted the legal practitioners of record to write the Respondent on the 19th of March 2025 requesting of the record of proceedings for purposes of appeal to which none was availed to date.

The referral in terms of section 101 (6) was set down on the 5th of May 2025 and postponed to the 27th of May 2025 was done to allow the Respondent to submit the record of proceedings to Applicants.

5.12.  The Applicants, having duly consulted with their legal counsel regarding the referral and the entirety of the circumstances, were advised to submit this application in light of the dismissal now granted in default.

The proposed application has prospects of success. The decision of the Respondent is being challenged on the basis that;

The Respondent was the one responsible for ensuring that the Applicants are afforded a reasonable opportunity to be heard by giving them adequate notice of hearing.

The Respondent fully knowing that it did not ensure that Applicants were given adequate notice of hearing, proceeded to dismiss the Applicants without rectifying the said procedural irregularity.

The Respondent was aware that without affording the Applicant adequate notice of the hearing, they would have violated the Applicant’s right to be right to be head enshrined in the maxim audi alteram pattern.

To the extent that the Respondent failed to observed the natural tenets of justice to ensure that the Applicants have been afforded their right to be heard, this review carries very high prospects of success warranting this application to be granted.”

Per contra, Respondent’s opposing affidavit stated that,

“48.  This is denied. The applicants were duly served with their dismissal letters through their then representative, the Trade Union, on the 25th of February 2025. They chose not to act on the communication at that time, and no reasonable explanation has been provided for such inaction.

In any event, and without conceding the point, even if it were to be accepted, which the respondent does not, that the applicants only became aware of their dismissal on the 11th of March 2025, their subsequent conduct still amounts to a gross misdirection. They were ill-advised and opted to pursue an incorrect legal route by filing an application for referral to the Labour Officer under Section 101 (6) of the Labour Act [Chapter 28:01]. This misstep significantly contributed to the delay now complained of and cannot be used to justify their lack of diligence.

This is denied. The applicants have failed to demonstrate any prospects of success on review, a fundamental requirement in such proceedings.

This is denied. The applicants were given adequate notice on the 12th of February 2023 to attend a hearing scheduled for the 15th of February 2025.

In any event, it is trite law that substantial compliance with the notice requirements prescribed under Statutory Instrument 15 of 2006 may be excused where the Applicant has had ample time to prepare for the hearing from the date of suspension as in casu. “

Analysis Delay

Rule 20 (1) of the Court’s Rules requires that application for review must be filed within twenty-one days from the conclusion of the impugned proceedings. Excluding weekends the period amounts to one month. Applicant was dismissed from employment via Respondent’s letter dated 18th of February 2025 the present application was filed on 2nd June 2025. The extent of delay therefore amounts to 2 months.

Explanation for Delay

Applicant stated that he received the dismissal letter upon service by courier on 11th March 2025. He consulted his attorney who on 12th March 2025 referred the matter to a Labour Officer for conciliation. The attorney then advised that the matter should be resolved by review in the Labour Court. That is when he filed the present application. Upon receipt of the dismissal letter applicant promptly engaged an attorney who referred the matter to the appropriate authority for conciliation. The attorney apparently changed course and advised that the matter be resolved in the Labour Court. The explanation for the resultant delay is considered as reasonable. Respondent argued that referral to a Labour Officer was wrong. The short answer is that where one seeks conciliation the referral was the right thing to do.

Prospects of Success

The disciplinary process in casu was covered by provisions of the Labour (National employment Code of Conduct) Regulations S.I. 15 of 2006. Section 6 (4) of the Code provides that

“At a hearing in terms of subsection (2), an employee shall have the right to-

(a) at least three working days notice of the proceedings against him or her and the charge he is facing;”

Respondent’s letter 12th February 2025 notified Applicant of the disciplinary hearing set for Saturday 15th February 2025. The notice fell short of the three-working days’ notice set by the Code. Respondent’s attorney rightly conceded that much during oral argument. The effect of the short notice was to invalidate the notice.

See TMPC v Guhwa SC 19/25

Per Chatukuta JA

“27.  Failure to comply with the timeframe set out in section 6 (2) of the (National Employment) Code raises a jurisdictional issue. The use of the word ‘shall’ denotes that the provision is peremptory and must be adhered to…. It is an established principle of our law that anything done contrary to the law is a nullity. Any proceedings held and any determination made outside the period is therefore a nullity.”

By parity of reasoning, the default proceedings in casu arising from an invalid notification are also a nullity. Respondent sought to rely on the case of Majurira v Tredcor SC48/13 to say that there was “substantial compliance’ with the Code. Well to the extent that the Majurira case is inconsistent with the later ruling in the TMPC case, the latter prevails more so considering that Majurira was decided by a Judge in chambers whereas TMPC was decided by a full bench of the Supreme Court.

Conclusion

The extent of delay is not inordinate;

The explanation for delay is reasonable; and

Applicant has good prospects of success on review.

Thus this Court is persuaded to exercise its discretion in favour of condonation.

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.

G. MUSARIRI J-U-D-G-E