Lancet Clinical Laboratories v Gift Simau

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 30 MAY 2023 & 9 AUGUST
JUDGMENT NO LC/H/236/2023
CASE NO LC/H/76/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 30 MAY 2023 & 9 AUGUST

2023

JUDGMENT NO LC/H/236/2023 CASE NO LC/H/76/23

In the matter between:-

LANCET CLINICAL LABORATORIES	APPLICANT (BP NO 0200025874)

GIFT SIMAU		RESPONDENT

Before the Honourable Kudya J

For the Applicant	T.J. Chivanga (Legal Practitioner) For the Respondent	T. Barangwe (Unionist)

KUDYA, J:

This is an application for condonation of late filing a notice of opposition and upliftment of the bar operating against the applicant employer. The applicant is out of time by 28 days to file its opposition in LC/H/1164/22 which is a review matter at the instance of the respondent employee. The employee is opposed to the grant of the condonation relief. He cites the fact that the employer has no good excuse for the default and that it does not have merited opposition to his review application.

It is settled that the test for condonation is the cumulative effect of the excuse its extent, prospects of success, importance of the case, convenience of the court and the avoidance of unnecessary delay. See Mazvimbakupa v City of Harare HC-H-92-09 and Jansen v Acavalos 1993 (1) ZLR 216(S). In the case at hand the employer attributes the delay to the fact that its legal practitioner was ill at the relevant time and also laboured under the impression

that condonation for the late filing of the review had not been granted. To that end one Rutanhira the lawyer who was seized with the matter deposed to an affidavit explaining the fact that he was ill at the relevant time.

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LC/H/263/23 LC/H/76/23

The employee argues that Rutanhira has not favoured the court with medical records so his mere say so cannot suffice to explain his default. The court notes Rutanhira makes the statement of his ill health under oath and being a legal mind fully appreciates the consequences of lying under oath. To this extent the court has no basis to doubt his sworn statement that he was ill to the extent that he could not file the opposing papers in time. The court is satisfied that the illness excuse is plausible and can aid the success of the condonation application.

On the merits plane the employer advises the court that the review application is fraught with a number of irregularities from incompetent relief where the employer seeks to be reinstated post review without his innocence being tested by deciding on the merits of the case. It also argues that the employer seeks a setting aside of determination by both the appeals offices and the hearing officer thus clouding the issues. Finally it argues that due process was followed leading to the employee’s dismissal so it needs to be given a chance to present its case for full determination by the court. A look at the issues raised by the employer leads one to the inescapable conclusion that there are issues around the main matter which need unravelling and those demonstrates that the employer has a plausible opposition to the review application. The condonation application should thus succeed on the basis of this rung also.

On the importance of the case it is pertinent to note that both parties need closure on the matter. Such can only be achieved once the main matter is determined by the courts. It is granted that there is need for finality to litigation. See case of Ndebele v Ncube 1992(1) ZLR

288. Such finality however should not be achieved by sacrificing the interests of justice in a matter where technical niceties rule the day. The law is clear that cases need not be decided on based on technicalities. See Mapondera v Freda Rebecca SC -81-22. The court is satisfied that the cumulative effect of all the tenets discussed above is that applicant has a good case for condonation and uplifting of the bar. The application should therefore succeed.

IT IS ORDERED THAT

Application for condonation of late filing of opposition in LC/H/1164/22 and upliftment of bar being merited it be and hereby succeeds. Applicant is allowed to file its opposition in LC/H/1164/22 within 10 days of this order. Each party bears own costs.

Scanlen and Holderness, Applicant’s Legal Practitioners