Bornface Dunduru and 12 Others v Public Service Commission and 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/197/24
HARARE, 24 JANUARY, 2024
CASE NO LC/H/REV/68/19
29 APRIL 2024
BORNFACE DUNDURU AND 12 OTHERS
APPLICANTS
PUBLIC SERVICE COMMISSION AND 3 OTHERS
RESPONDENTS
---------


==============================

BORNFACE DUNDURU AND 12 OTHERS

PUBLIC SERVICE COMMISSION AND 3 OTHERS

Before the Honourable G. Musariri, Judge:

For Applicants - Ms R. Munatsi, Attorney

For Respondents - Mr C. Chitekuteku, Officer

MUSARIRI, J:

Applicants applied to this Court for the review of their retrenchment from employment by respondents. The application was made in terms of Section 89(1) (d1) of the Labour Act Chapter 28:01 hereafter called the Act. Respondents opposed the application. The grounds for review were two-fold as follows;

“1. There were gross procedural irregularities which vitiated the whole process.
 2. The Respondents were biased against the Applicants when they handpicked them for retrenchment whilst retaining their peers in other schools, on the same positions, with the same qualifications.”

Respondents filed a belated Response on 25 March 2020 which they promptly withdrew. According to their submissions on 27 November 2020 this Court granted their application for condonation and allowed them to file their Response together with Heads of Argument within 10 (ten) days. They failed to comply. At the onset of oral argument herein respondents applied for a postponement to enable them to file another application for condonation so that they file their Response. The application was opposed by applicants. This Court proceeded to dismiss the application on the basis that respondents have turned out to be serial defaulters whose conduct is tantamount to an abuse of court process calculated to prejudice the interests of the applicants.

The application is 4 (four) years late. There was no satisfactory explanation why a proper application for condonation was not made on time. Condonation is not for the asking but requires an acceptable explanation.

See Bastin v Madzima SC 37/20 Per Mathonsi J AT P 7

“Where a party has not sought condonation for failure to comply with the rules, it must give an acceptable explanation not only for the delay, but in seeking condonation.

It means that what calls for some acceptable explanation is both failures to abide by the rules and the failure to seek condonation.”

There being no valid Response the matter shall be treated as unopposed in terms of Rule 29(b)(i) of the Labour Court Rules, 2017.


Wherefore it is ordered that,

1. The application for review be and is hereby granted;

2. The termination of applicants’ employment by the respondents is set aside;

3(a) Respondents shall reinstate applicants without loss of salary and benefits, or

(b) Respondents shall pay applicants damages in lieu of reinstatement in amounts either agreed by the parties or assessed by this Court; and

4. Respondents shall pay costs of suit.

G. MUSARIRI
J-U-D-G-E
--- END OCR FALLBACK ---