Jonitan Peter Mutizira v National Railways of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/440/2013
HELD IN HARARE, MAY 24, 2013 & SEPTEMBER 27, 2013
CASE NO. LC/CON/H/134/12
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/440/2013

HELD IN HARARE, MAY 24, 2013 & SEPTEMBER 27, 2013	CASE NO. LC/CON/H/134/12

In the Matter Between

JONITAN PETER MUTIZIRA			       	APPLICANT

And

NATIONAL RAILWAYS OF ZIMBABWE			RESPONDENT

Before The Honourable E. Makamure:	President

(IN CHAMBERS)

MAKAMURE E.,

This is an application for condonation of late noting of appeal. The application was lodged some three (3) years after the applicant’s dismissal from employment. I dismissed the application after reading the documents in chambers.

The facts of the matter are that the Appellant was dismissed from the Respondent’s employ for absenting himself from work without leave to do so. Efforts to call him for a hearing failed. The matter was therefore concluded in his absence.

From the papers filed of record, it is clear that the applicant absented himself from duty.  The respondent levelled charges against him but he did not respond.  There was no explanation for his failure to respond .The Applicant continued to absent himself from work. The applicant should at least have sent word explaining his predicament to his employer. He did not do so.   As a result of the absenteeism he was dismissed from employment with effect from 27 October 2008.

In his defence he states that he was sick.  His illness was never communicated to his employers.  He claims to have been examined by a “competent doctor”.  Proof of attendance by that doctor is not on record.  He submitted a letter from Zimbabwe National Traditional Healers Association (ZINATHA) dated 14 June 2011.  In the letter it is stated that the applicant “was treated for a very long period”. However in terms of the ZINATHA medical form which forms part of the record, “… a practitioner shall not treat patient for more than 30 working days”.  This form is clear and unambiguous. The period which the applicant would want the court to believe that he was under treatment is in excess of what ZINATHA stipulates. The applicant now wants the Court to disregard the standing rules laid down by ZINATHA and ignore this instruction.  This is unacceptable and it is an attitude which must be strongly condemned.

It is clear that the applicant did not advise his employers about the reason for his absence when he was required to do so. One gets the impression that the applicant is approaching this Court simply to see whether or not he can woodwink the court into believing something which is unbelievable. He is therefore abusing court process.  This is unfortunate and  cannot be condoned.

The applicant submitted an affidavit in support of the application.  In that affidavit he did not address the three crucial issues required for consideration in an application of this nature.  These are:

Whether the extent of the delay was inordinate or not having regard to the circumstances.

Proffering a reasonable explanation.

Whether there are prospects of success of the matter on the merits.

(See Chubb Union Zimbabwe (Pvt) Ltd v Chubb Union Workers SC 1/2001).  Clearly a delay of more than three (3) years is inordinate. The reason proffered for the delay is not satisfactory. It is not reasonable. Further the prospects of success on the merits in the face of such damning evidence are in my view slim. In the circumstances I find that there is no merit in the application.

It was in view of the above that the application was and remains dismissed.