Claudious Kurauvone v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/27/2020
HARARE, 25 NOVEMBER 2019
CASE NO. LC/H/27/2020
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/27/2020

HARARE, 25 NOVEMBER 2019		             CASE NO. LC/H/APP/204/19

AND 31 JANUARY 2020

In the matter between:-

CLOUDIOUS KURAUVONE				Applicant

And

CITY OF HARARE						Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr M.G. Bumhira (Legal Practitioner)

For Respondent		Mr R. Nemaramba (Legal Practitioner)

CHIDZIVA, J:

This is an application for condonation of late noting of an application for review of the Respondent to retire the applicant at the age of 60 years instead of the age of 65 years provided in the contract of employment.

The brief facts of the matter are that,

Applicant was employed by the Respondent as the City’s Architecture Grade 4.

His contract of employment stated that his age of retirement is 65 years.

Respondent came up with pension regulations that provided that retirement from the pension scheme is 60 years of age.

Respondent resolved to retire the Applicant at the age of 60 years.

Applicant then approached the High Court on review but the matter was referred to the Labour Court.

The Applicant has now approached this court with an application for condonation for late filing of an application for review.

Gubbay CJ in the case of Forestry Commission vs Moyo 1997 (1) ZLR 254 has set out the factors to be considered in these applications as follows,

“These are as follows

That the delay involved was not inordinate having regard to the circumstances of the case.

That there is a reasonable explanation for the delay.

That the prospect of success should the application be granted.

The possible prejudice to the other party should the application be granted …..”

The delay

The Applicant in his application has submitted that the delay in bringing the matter for review was not inordinate because the judgment by the High Court referring him to the Labour Court was handed down on 13 May 2015. The Don Nyamande judgment was handed down on 17 July 2015. The Don Nyamande case allowed termination on notice and he says this case discouraged him from taking any further action. He only resuscitated his case after his colleague Mr Misheck Mubvumbi had won a similar case in the Supreme Court i.e. Case No. SC 64/18.

In my view the explanation that has been given for the delay is reasonable. The vacuum that was created by the Don Nyamande case was only cured by legislative amendments.

Prospects of Success

The Applicant’s contract of employment stipulated that his retirement age was 65 years. The Respondent retired the Applicant at the age of 60 years which is a breach of his conditions of service.

Makarau JA in the case of Misheck Mubvumbi vs City of Harare SC 64/18 stated that,

“In other words retiring from the pension fund does not always mark an employee’s retirement from employment. The two retirements can occur on different dates. Thus in my view one may clearly and lawfully attain retirement age for the purpose of the Act whilst still in employment. Whilst my understanding of the law in this regard is not directing relevant to the facts of this appeal in my view it underscore the clear legal position that the retirement age fixed by the pension scheme is not, in the absence of consent by both parties to that effect, necessarily the same age at which one must retire from employment ….. Where therefore the employer intends to apply the retirement age that is fixed by the pension fund for the purpose of retiring employees from employment, it must impart this age, with the consent of the employees into the conditions of service.”

From the foregoing it is clear that the Respondent had no lawful right to reduce the Applicant’s retirement age from 60 years to 65 years.

In the circumstances I find that he has prospects of success on review.

It is also my view that the Respondent will not suffer any prejudice if this application is granted.

In the circumstances the application being merited it is ordered that

The application for condonation of late filing of the application for review be and is hereby granted.

The Respondent shall bear costs.

J. Mambara & Partners, applicant’s legal practitioners

Chihambakwe, Mutizwa & Partners, respondent’s legal practitioners