Setfree Muhera v Minister of Education, Sports, Art & Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/797/2016
HARARE, 8 NOVEMBER 2016 &
CASE NO LC/H/APP/270/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/797/2016

HARARE, 8 NOVEMBER 2016 &				CASE NO LC/H/APP/270/2016

16 DECEMBER 2016

SETFREE MUHERA							APPLICANT

MINISTER OF EDUCATION,						RESPONDENT

SPORTS, ART & CULTURE

Before the Honourable G Musariri, Judge

For the Applicant	Mr G Manyurureni  (Attorney)

For the Respondent     Ms T R Mutendi  (Officer)

MUSARIRI J:

On the 11th March 2016 the applicant filed in this court, an application for condonation of late noting of his application for rescission. The respondent opposed the application. I will deal with the application under the subtitles “Delay” and “Prospects”.

Delay

The underlying order sought to be rescinded was issued by this court on the               9th September 2013. In terms of Rule 33 of the Court’s Rules an application for rescission must be made within thirty days. In casu the time limit was exceeded by two and half years. By any measure such delay can only be described as inordinate. Even the applicant himself conceded that the delay was inordinate. See paragraph 10 of his founding affidavit. In paragraph 11 of the affidavit he averred that had the respondent’s response been served he could have prosecuted his matter timeously. Evidence was produced at the hearing before me to show that the response was served timeously. The applicant’s position shifted and then claimed that the response was misplaced at his attorney’s office. It was not seen by the attorney dealing with the matter. With respect I consider this story as a inadequate explanation for a delay of two and half years.

Prospects

The applicant was found guilty of misconduct. The acts complained of arose from his absence from duty on two days. The teacher-in-charge (TIC) duly noted the absences in the attendance register. The applicant then confronted the TIC concerning that entry. He assaulted her and in the process disrupted classes. The TIC gave evidence at the disciplinary hearing. She testified that the applicant assaulted her after an altercation concerning the attendance register. Her story was corroborated by statements made by witnesses. The statements are filed of record.

The applicant admitted his absences from duty. He claimed he notified a senior colleague. But the point is that he failed to get authorisation from the appropriate authority. The applicant admitted the altercation over the register with the TIC though he denied assaulting her. He claimed that the witnesses’ statements were fabricated or obtained by duress. Nothing concrete was shown this court to lend credence to this assertion. It remained a bald assertion.

In all the circumstances I am satisfied that there was an inordinate delay for which no satisfactory explanation was given. Alternatively the applicant does not have reasonable prospects of success on the merits. In the circumstances I conclude that the application needs be dismissed.

Wherefore it is ordered that,

The application for condonation be and is hereby dismissed; and

Each party shall bear its own costs.

G Musariri

J U D G E