Anglican Church of the Province of Central Africa v Augustine Farai Dizara & Anor

### Preamble

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/81/24

HARARE, 23 FEBRUARY, 2024

CASE NO LC/H/900/23

ANGLICAN CHURCH OF THE PROVINCE OF CENTRAL

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IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 FEBRUARY, 2024

JUDGMENT NO LC/H/81/24 CASE NO LC/H/900/23

ANGLICAN CHURCH OF THE PROVINCE OF CENTRAL

AFRICA APPLICANT

AUGUSTINE FARAI DIZARA 1ST RESPONDENT

J. MADZIYA N.O. 2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant Ms M.N. Garakara, Attorney For 1st Respondent Mr F.F. Mabika, Attorney For 2nd Respondent No appearance, Absentia

MUSARIRI, J:

Applicant (employer) applied to this Court for condonation of a late review in terms of Rule 22 of the Labour Court Rules, 2017. 1st Respondent (employee) opposed the application. Applicant intends to file for review of proceedings and ruling before and by 2nd Respondent (Labour Officer) on 7th August 2023.

Delay: In terms of Rule 20 an application for review must be filed within twenty-one days of conclusion of the impugned proceedings. Applicant filed the present application on 6th November 2023. There is thus a delay of two months.

Explanation: Applicant’s attorney in a supporting affidavit deposed thus;

“4. The ruling was handed down on the 07th August of 2023, and served at our offices. At that time I was on maternity leave which ended on the 30th of September 2023. I was effectively back in office on the 2nd of October 2023. Attached hereto is my leave approval form as Annexure E.

Although I became aware of the ruling, I was not actively in office and had not acquainted myself the new labour amendment which was passed into law at the time I was on leave.

After my resumption of duty, I realised the changes in law and advised Applicant accordingly.

The Applicant’s delay in filing its application for review was occasioned by my absence from office. It was not a disregard of the court rules. The matter had not progressed in months hence there was no hand over to a legal practitioner who was in office in my absence.”

Merits: Applicant’s main argument in Court was that at the time of 2nd Respondent’s ruling the applicable law had been changed by the Labour Amendment Act No. 11 of 2023 which was promulgated on 14th July 2023. Section 32 of the Amendment appears to remove the power of Labour Officers to issue rulings. On that basis it was argued that the 2nd Respondent did not have power to issue the ruling he made. Alternatively it was argued that this was an ecclesiastical rather than employment matter which ought to have been resolved by ecclesiastic tribunals.

Conclusion

Applicant’s attorney ought to have handed over the matter to another attorney before going on maternity leave. Thus the explanation for the delay is not impressive. It is just so so.

However the deficit is made up for by the good prospects of success on the merits. 1st Respondent’s attorney did not provide any meaningful counter to the argument based on the Labour Amendment Act, 2023. Whether the argument will prevail depends on the judgment of the review court but at this stage it can be said that Applicant has good prospects of success. The relevant factors in condonation cases must be balanced against each other.

See Maheya v Independent African Church SC 58/07

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are; the degree of non-compliance, the explanation therefor, the prospects of success on appeal, the importance of the case, the respondent’s interest in finality of the judgment, the convenience to the Court and the avoidance of unnecessary delays in the administration of justice.”

There is no doubt that this is an important case where effect of the new Amendment on powers of Labour Officers needs to be determined by this Court.”

Wherefore it is ordered that,

The application for condonation be and is hereby granted;

Applicant may file its application for review by this Court, within fourteen (14) days of this order; and

Each party shall

J-U-D-G-E