Farai Homwe v St Pauls Musami Mission Hospital & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/198/2021
HARARE, 12 OCTOBER 2021
5 NOVEMBER 2021
CASE NO LC/H/255/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/198/2021

HARARE,  12 OCTOBER 2021&			  CASE NO LC/H/255/21

5 NOVEMBER  2021

In the matter between:-

FARAI HOMWE					APPLICANT

AND

ST PAULS MUSAMI MISSION HOSPITAL	1st RESPONDENT

AND

THE EXECUTIVE DIRECTOR

HEALTH SERVICES BOARD			2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant			In Person

For the 1st Respondent		B. Julajulah   (Legal Practitioner)

For the 2nd Respondent		S. Wilson Matsika (Legal Advisor)

KUDYA, J:

This is an application for condonation of late noting of an appeal to the labour court at the applicant employee’s instance.  This application follows the employee’s failure to appeal  to the labour court following  his dismissal by the mission hospital.   The hospital and the health services board are both opposed to the grant of condonation relief.

The hospital in its response and in its heads of argument took a preliminary point to the effect that the condonation application was not properly before the court as it was in breach of Form LCI which should have founded it.

On the hearing date the hospital however abandoned the point and moved the court to only determine the matter on the merits.  The abandonment	of the point thus put to rest the point so raised occasioning the court to deal with the merits of the condonation application.

It is therefore only the merits of the condonation application which is addressed by this judgment.

The test for condonation is settled  See Jansen Acavalos 1993 (1) ZLR 216 (5).  Applying the tenets of condonation to the case at hand the court observed and concluded as stated below:-

Explanation and extent of delay

Applicant is out of time by about 11 months to appeal to the labour court.  He cites financial incapacity and lockdown restrictions as having occasioned the breach.  It is now settled that the plea of poverty is insufficient  for one to succeed S v Chigodora HC-H-47-20. Further to that the lockdown excuse can not stand because over the 11 month delay period there were occasions when the court opened up for business.  The employee should thus have used those periods to pursue his case.  In a nutshell the excuse given is not cogent and the delay is inordinate so can not aid the employee to get condonation relief.

Merits/Plausible case on appeal

A reading of the papers on record show indeed that the employee was wrong to seek to appeal a decision of the hospital to the board which had not entertained his disciplinary case.  To that extent the intended appeal is porous hence cannot assist in the condonation application.

Balance of convenience and importance of the case

The employees intended appeal is not unusual where there is haggling over the  powers of  mission hospital and the board’s powers.  There is therefore nothing peculiar about the case warranting the grant of the relief sought.  In any event the conduct of the employee left a lot to be desired.  He came to court visibly drunk and being argumentative to the point of disrupting proceedings.  Surely such a person cannot claim that his case is important to him. It makes sad listening from someone who was sacked from his job for among other things drunkenness to court ti come and pursue his rights again in a drunken state.  The court was constrained to conclude the proceedings and had to repeatedly remind the employee the importance of why he was in court and the decorum expected of him.  The balance of convenience thus favours the dismissal of the application as the conduct of the employee demonstrates that the matter is not a serious issue to him as he would have the court believe. It would inconvenience the court to grant relief to an applicant who exhibits the casual and deplorable conduct observed by the court above.

In conclusion it is settled law that the cumulative effect of all the tenets decides the case  See Rennie v Khoka HC-B-83-18.

The cumulative effect of all the tenets discussed above speak to the fact the employee has no good case for condonation. The application should therefore fail.

IT IS ORDERED THAT

Application for condonation of late noting of an appeal being with merit it be and is hereby dismissed with costs.

Julajulah Law Chambers, 1st Respondent’s Legal Practitioner