Tonderai Mutsago N.O. V Treasure Trove Academy & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/65/2020
HARARE, 17 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/65/2020

HARARE, 17 FEBRUARY, 2020		              CASE NO. LC/H/APP/266/19

AND 28 FEBRUARY, 2020

TONDERAI MUTSAGO N.O.						Applicant

TREASURE TROVE ACADEMY						1st Respondent

SITAWA WILO								2nd Respondent

Before The Honorable G Musariri, Judge:

For Applicant:				Mr T. Mutsago, Applicant

For 1st Respondent:			Ms R. Mahlunge, Head

For 2nd Respondent:			Mr P. Mudzengerere, Unionist

MUSARIRI J:

On the 12th April 2020, applicant in his capacity as a Designated Agent, filed an application for condonation in this Court. 1st Respondent (employer) opposed the application. 2nd Respondent (employee) supported the application. The background is stated herewith. Applicant is a Designated Agent for the NEC for Welfare & Educational Institutions. In that capacity he dealt with a dispute between the employer and the employee. On the 3rd October 2018 he made a ruling. He ordered the employer to reinstate the employee or pay him damages in lieu of reinstatement.

Delay

For purposes of enforcement, applicant was required to apply for confirmation of his ruling by this Court in terms of section 93(5a) of the Labour Act Chapter 28:01. In terms of the Court’s Rules the application needs be filed within 30 days of the ruling. The foregoing shows that the extent of delay is over one year.

Applicant explained the delay thus,

“5.3	 This omission was not willful as the second Respondent who stands to benefit from the confirmation of the ruling, had not yet managed to raise the money to enable me to file the application.

5.4	Administratively and as organizational policy at the NEC for Welfare and Educational Institutions, if the beneficiaries in the draft order and ruling are not members of the trade union in the industry, they are obliged to meet the costs of the application which are then claimable from the First Respondent”.

I consider the explanation for the delay as plausible. I am not persuaded by the employer’s submission that poverty is not a reasonable explanation.

Merits

At this stage it is not necessary to analyse the merits of the Applicant’s ruling. All that is required is  a showing that Applicant made a ruling as a Designated Agent. That ruling

requires confirmation by this Court for purposes of its enforcement. As such there is no bar to the intended application for confirmation. In its opposing affidavit the employer went to town on the merits of the ruling. It insisted that the ruling was a gross misdirection. Well, that is the case which the employer must establish when Applicant eventually files for confirmation of his ruling.

All in all I consider that it is in the interest of justice that condonation be granted. That will avail the employer, the employee and indeed this Court the chance to test the validity of Applicant’s ruling.

Wherefore it is ordered that,

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

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

3.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E