Murahwa Primary School SDA v Peter Jhava & 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/04/16
HELD AT MUTARE 4 FEBRUARY 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MC/04/16

HELD AT MUTARE 4 FEBRUARY 2016			CASE NO LC/MC/42/15

& 4 MARCH 2016

In the matter between:

MURAHWA PRIMARY SCHOOL SDA			Appellant

And

PETER JHAVA & 3 OTHERS				Respondents

Before The Honourable L Kudya, Judge

For Appellant			Mr W Makuyana (Legal Practitioner)

For Respondents		Mr A T Nhida (Trade Unionist)

KUDYA, J:

This matter was set down for Mutare Circuit as an appeal at the instance of the appellant employer against a decision which was made in favour of the respondent employee by the arbitrator on 26 June 2015.

The appeal could however not be entertained because just before its hearing it was brought to the attention of the court that the employee had on 26 January 2016 filed with the court an urgent application  for condonation of the late noting of a response and heads of argument in the main appeal.

This led to the resolution of the chamber application before the appeal could be entertained.  This judgment therefore only addresses the chamber application which was made at the employee’s instance.

The basis of the application was put as being the fact that employee had engaged a dubious union representative who did not act diligently to file the response and the heads on time.  He thus prayed that the court condone the delay in question and allow that his belatedly filed documents be allowed to form part of the record of appeal and that the appeal be decided within that context.

The employee maintained that, notwithstanding advising the employer of his correct address for service the employer continued serving process at an address where he could not access his mail.  That in his view together with the dilatoriness of his union  representative occasioned the delay in the filing of the response and the heads hence the relief which he is now seeking from the court.

On the other hand the employer maintained that the employee did not have a good case for condonation.  It argued that employee saw the process on time and his argument about the legal year shut down etc was without foundation.  It maintained that employee did not have a good defence to the appeal hence there was no need to grant him the relief sought.   The employer therefore prayed that the employee be denied the indulgence that he was seeking and that the appeal be concluded as an unopposed one on that account.

The test for condonation has been laid down in a long lime of cases in particular that of Jensen v Acavalos 1993 (1) ZLR 216 (S).  Applying the test laid out in the cited cases to the facts of the case at hand the following is apparent.

Employee got process from employer somewhat late.  The veracity of the documents which employer sought to rely on as demonstrating that employee had before this current application also put in a similar application could not be tested as it required protracted administrative attention to decide on the authenticity of the documentation relied on.  To that extent the court took it that such a process would unnecessarily prolong the conclusion of the matter.

In the result the court accepted the regularly issued documents as speaking to when

the employee got the process.   On the face of that process the employee’s excuse is therefore cogent.

On the merits of the appeal the arbitrator set out with sufficient clarity why he ended up finding in favour of the employee.  The employee therefore has a reasonably arguably defence to the appeal and he needs to be given his date in court.

In the ultimate the cumulative effect of the merits of the case and the explanation for the delay as per the test set out in the Jensen case (supra) the court is satisfied that a good case for condonation has been made out and it should succeed.

IT IS ORDERED THAT

Application for condonation of late filing of response and heads at employee’s instance being with merit it be and is hereby allowed.  The employee is allowed to file his response and heads in this matter within 14 days from receipt of this judgment after which the Registrar is directed to set down the main appeal on the next available circuit for resolution on the merits.

Each party bears own costs.

Bere Brothers, appellant’s legal practitioners