Talkmore Mutsago v TM Supermarkets (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/74/2020
HARARE, 5 MARCH, 2020
CASE NO. LC/H/APP/560/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/74/2020

HARARE, 5 MARCH, 2020		               CASE NO. LC/H/APP/560/19

AND 13 MARCH, 2020

TALKMORE MUTSAGO							Applicant

TM SUPERMARKETS (PRIVATE) LIMITED				Respondent

Before The Honorable G Musariri, Judge:

For Applicant				Mr T. Muzana, Attorney

For Respondent			Ms M. Kaseke, Attorney

MUSARIRI J:

Applicant applied to this Court for condonation of a belated quest for review. Respondent opposed the application. He worked for the Respondent as a Bookkeeper. He was charged with misconduct. A hearing was held in his absence. A guilty verdict was returned. The punishment therefor was his dismissal from employment. The termination letter is dated the 8th April 2019. This application for condonation was filed on the 1st October 2019. The intervening period amounts to six (6) months. The Labour Court Rules S.I 150/17 in Rule 20(1) require that a review be brought within twenty-one days from the date proceedings are concluded. Thus excluding the permitted period, Applicant’s intended review is five (5) months late.

Applicant tendered an explanation for the delay. He stated that his job with Respondent was his sole source of income. When he was terminated he was left without an income.  At the same time he was attending his trial in a criminal court arising from the facts of this case. He could not raise money to brief an attorney to apply for review. He has since managed to instruct his present attorney to file papers.

However, he has not clarified if, when and how he managed to raise funds for legal fees. Applicant submitted he has good prospects of success in the intended review. He stated that he was not served with the notification to appear at the disciplinary hearing. Therefore he did not attend the hearing. The non-service of the notice amounted to an irregularity warranting the nullification of his dismissal. That was the crux of his case on the merits.

Respondent argued that “…Applicant’s failure to raise funds to finance this matter does not suffice as a reasonable excuse for his delay in noting his review.” It quoted a 2016 South African legal precedent to the effect that mere lack of funds is an insufficient defence. Respondent further submitted that Applicant does not have good prospects of success on the merits. To bolster its position, it relied on a letter dated the 14th October 2019. Same was signed by its driver. The latter claimed that he delivered the notification by pushing it under the door at Applicant’s residence. We have the driver’s word arrayed against Applicant’s sworn denial. At this stage I consider it unnecessary to make a finding as to which of the versions is credible. Suffice it to say at this stage Applicant’s denial in the circumstances deserves the benefit of doubt. The issue may be fully ventilated in due course if condonation were granted.

I have agonized as regards Applicant’s explanation for delay. It does not fully explain when or how he came into funds. Otherwise it does not explain the basis upon which his present attorney took up his matter. However the explanation is not implausible and neither is the delay inordinate. Applicant has at least an arguable case on the merits. On the whole I therefore consider that there is reasonable cause for condonation in casu.

Wherefore it is ordered that;

1.	The application for condonation be and is hereby granted;

2.	Applicant may file his application for review within fifteen (15) days of this order; and

3.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E