City of Harare v Cosmas Bengu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/134/2021
HARARE, 30 JUNE 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/134/2021

HARARE, 30 JUNE 2021	                                     CASE NO. LC/H/APP/254/20

AND 10 SEPTEMBER 2021

In the matter between:-

CITY OF HARARE							Applicant

versus

COSMAS BUNGU							Respondent

Before Honourable B.S. Chidziva, Judge

For the Applicant	:	Mr C. Kwaramba (Legal Practitioner)

For the Respondent:	Mr J. Mambara (Legal Practitioner)

CHIDZIVA, J:

This is an application for condonation for late filing of an application for leave to appeal against the judgment of this court No. LC/H/146/20. The judgment was handed down on 3 July 2020. According to the applicant it received the judgement on 9 July 2020. The application for condonation was filed on 15 September 2020.

The brief history of the matter is that the Respondent who was a Housing Managing Officer was charged and convicted of absenteeism and dereliction of duty. He was dismissed from employment on 11 January 2010. He appealed to the arbitrator who found that he had been lawfully dismissed. He then appealed to the Labour Court which upheld the decision of the Arbitrator. He further appealed to the Supreme Court which set aside the decision of the Labour Court and ordered a hearing denovo before the arbitrator. The arbitrator then ruled in favour of the Respondent and ordered reinstatement or payment of damages in lieu of reinstatement. Aggrieved by the award the Applicant appealed to this court which found that Respondent had not been afforded the chance to be heard.

The grounds upon which the applicant has made this application is that;

(i).	The applicant failed to make its application in time because one of the

partners at his lawyers’ law firm had passed on due to COVID 19 and	the law firm was closed.

(ii).	The applicant has reasonable prospects of success on appeal in that Respondent was given more than enough chances to attend the hearing but he rebuffed them by giving excuses.

The Respondent in response argued that:

(i)	From 3 July to 29 July 2021 the law firm was still open and the applicant could have made its application on time.

(ii)	Respondent was never called by the applicant to be advised of the committee’s decision to proceed in the absence of his lawyers.

The case of United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717 set out the facts to be considered in such applications as follows:

“It is well settled that in considering applications for condonation, the court has discretion, to be exercised judicially upon a consideration of all of the facts, and that in essence it is a question of fairness to both sides. In this  enquiry relevant consideration may include the degree of non-compliance with the Rules the explanation therefore, the prospects of success … (on the merits) the importance of the case, the respondents interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive.”

Degree of Non – Compliance and the explanation therefore

The explanation given for failing to comply with the rules is reasonable in my view. When the offices re-opened on 17 August 2020 the application was already out of time. In my view the explanation that there was a bereavements in the law firm  is reasonable and the delay is not inordinate.

Prospects of Success on Appeal

In its grounds of appeal to the Supreme Court the Applicant stated that

(p 57):

“The court a-quo grossly erred in finding that the dismissal was unfair and ordering a hearing denovo on the basis that the Respondent was not afforded an opportunity to be heard when the evidence showed that the respondent had forfeited or waived his right to be heard by refusing, failing and or neglecting to attend the disciplinary hearings without reasonable cause.”

From the Respondent’s heads of argument it appears that Respondent submitted his letter with the request for judgment but he was never called back he was never called back into the hearing for him to be advised about the decision of the committee on the request. All he received was the letter for dismissal.

On the other hand in Applicant’s heads of arguments dated 24 September 2019 under case number LC/H/153/19 the applicant submitted that it was Respondent who did not wait for  the decision of the Disciplinary Committee on the request for the postponement.

Professor G. Feltoe in his book “A basic Introduction to The Administrative Law of Zimbabwe stated that principles of natural justice can be waived where:

“Clearly when a person is offered the chance to exercise one of the rights recognised as being part of the principles of natural justice and he declines to avail himself of this right, he has waived his right.”

In this case it’s not clear whether Respondent was told to leave after submitting the request for a postponement or he just left on his own before the committee deliberated on the request.

I am of the view that this is an arguable issue which needs to be decided by a higher court.

In the circumstances therefore the application is granted and it is ordered as follows:

(i).	The application for condonation for late filing of an application for leave to appeal be and is hereby granted.

(ii).	Applicant is hereby granted leave to file its application for leave to appeal against this court’s judgment under case number LC/H/146/20.

(II).	Each party shall bear its own costs.

Mbidzo, Muchadehama and Makoni, Applicant’s Legal Practitioners

J. Mambara and Partners,  Respondent’s Legal Practitioners