Innocent Mavhurere v Tichaona Hwingwiri and Rainbow Tourism Group Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/268/25 HARARE, 7 JUNE 2025
CASE NO. LC/H/333/25
INNOCENT MAVHURERE
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/268/25 HARARE, 7 JUNE 2025		CASE NO. LC/H/333/25

INNOCENT MAVHURERE	APPLICANT

And

TICHAONA HWINGWIRI	1ST RESPONDENT

RAINBOW TOURISM GROUP LIMITED	2ND RESPONDENT

Before the Honourable Kudya J;

For the Applicant	- E. Mutandiro, Legal Practitioner For the 2nd Respondent	- W. Chirongoma, Attorney

KUDYA J:

On 7 July 2025 this court dismissed with costs on the ordinary scale, an application for reinstatement of a matter at the instance of the applicant employee. A request for the full reasons of this order has been made and here are the reasons:

The background facts of the matter are that, applicant who was in the 2nd respondent’s employment was accused of misconduct at the workplace. Disciplinary proceedings were conducted in his case. He appealed against the finding of the disciplinary committee. His appeal was decided by the acting Chief Executive Officer. He verily believes that his appeal should have been determined by

the Finance Director. The basis of such a view is that he was merely an assistant manager and not a manager so his appeal lay with the Finance Director. He is intent on having the CEOs decision reviewed on the basis that the CEO lacked jurisdiction to entertain his appeal.

He however is out of time to seek the review relief taking into account the fact that the review application which he earlier on filed with the Labour Court was deemed abandoned by the Registrar for failure to file heads of argument on time. He is keen on having the dismissed matter reinstated for argument on the merits.

His excuse for noncompliance with the rules is that there was a great turnover of legal practitioners at Biti and Associates law firm to the extent that it eluded the lawyers that heads of argument had to be filed in his matter to complete the prosecution of same. He is of the view that he has a good case on the merits judging from the fact that he was merely an assistant manager whose appeal could only lie properly with the Finance Director and not the CEO.

In the result, he prayed that, the application for reinstatement of the matter be granted so that he can eventually get review relief to the extent that he is reinstated or is paid damages in place of reinstatement.

The test applicable in reinstatement of matters is akin to the test used in condonation applications. The tenets are settled See Jansen v Acavalos1993(1) ZLR216 Each of the tenets is discussed below.

Extent of delay and excuse for delay

The instant application is coming almost 5 months later from the date when the applicant should have been heard on review had he complied with all the rules of court. His excuse is that it was because of the brain drain at his lawyers’ firm that he fell foul of the rules. His excuse found support in the affidavit by Tendai Biti the senior lawyer at the firm which was handling his case.

It is granted that administrative glitches can count for good cause but that is not the end of the matter. Before a party succeeds it should demonstrate that it has a reasonably arguable good case which can detain the court calling for the court to exercise its lenience and allow the reinstatement. This takes us to the critical aspect of the matter that is the merits of the intended review.

Merits

A reading of the pleadings in the matter shows that the applicant’s disquiet is that his appeal was determined by the CEO instead of the Finance Director. He says the Finance Director was his line manager so the appeal lay to him. It need be observed that considerable energy was expended by the parties on whether or not applicant was a manager whose appeal could line to the CEO or a non-manager whose appeal lay to the Finance Director.

It need be observed from the applicant’s own admission that he clearly styled himself as an assistant manager. This puts him squarely within the manager bracket where his appeal could be entertained by the CEO. There is thus nothing material that the applicant would want the review court to be detained by in the event of the grant of reinstatement relief.

It is settled that nullity begets a nullity. See McFoy v United Africa Company 19613 All ER1169. On account of the fact that, there is no good case to detain the review court it would not be just and proper to allow the reinstatement relief. It is noteworthy that, even before the instant matter applicant was before the Labour Court with an application which was struck off for not containing clear and concise review grounds. The continued flouting of the rules can only speak to sluggishness on the part of the applicant. See Ndebele v Ncube 19921 ZLR288 on the maxim that the law only helps the vigilant and not the sluggard The application should therefore fail on the merits plane.

It is important to note that the rest of the condonation tiers are more of offshoots of the 2 critical ones above Failure on the prospect plane spells doom to the rest of the remaining tenets. It is not good for the admission of justice for the court to be saddled with a case which is patently porous as the intended review application. It is equally inconvenient to the court to be detained by such a matter. Finality to litigation See Muwani v MugwaniSC116/23 dictates that cases without merit be buried and this is one such.

In a nutshell, the court was satisfied that no good case for reinstatement was made hence the dismissal order which it made on 7 July 2025.

Mutandiro, Chitsanga Chitima Attorneys- Applicant Legal Practitioners

C Kuhuni Attorney- 2nd Respondent Legal Practitioners