Zinyengere Rungano Chaza v Greystone Park Primary School & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/208/25
HARARE 08 NOVEMBER, 2024
CASE NO LC/H/999/24
AND 8 JUNE, 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/208/25 HARARE 08 NOVEMBER, 2024		CASE NO LC/H/999/24 AND 8 JUNE, 2025

In the matter between: -

ZINYENGERE RUNGANO CHAZA	APPELLANT

And

GREYSTONE PARK PRIMARY SCHOOL	1ST RESPONDENT SCHOOL DEVELOPMENT COMMITTEE

A MAKOCHEKANWA	2ND RESPONDENT

(In his capacity as Chairperson of the Disciplinary Committee)

Before the Honourable Chivizhe J

For Applicant: Ms A. Chihombori (Legal Practitioner)

For Respondent: Mr. S. Mangoma (Employers’ Organisation Representative) CHIVHIZHE, J:

This is an application for condonation for condonation for late filing of an application for review and extension of time within which to file brought in terms of Rule 22 of the Labour Court Rules, 2017. This application is opposed.

FACTS

The applicant was employed by the 1st respondent as a music teacher from 2009 up to July of 2024. The respondent is a primary school in Harare. The applicant alleged that he had fallen sick sometime in January 2024 and thus could not report for work on the subsequent days. The applicant further alleged that he had informed the headmaster, one Mr Zheve that he was ill. The applicant further averred that sometime in February of 2024, his father then received a

letter from the 1st respondent threatening the applicant with dismissal from service should he continue absenting himself from duty.

The applicant averred that efforts to get leave forms from the school were fruitless and thus he could not fill in the leave forms. The applicant alleged that he did not receive his February salary and after he had written to the school requesting same, no response was given to him. The applicant further averred that he received a letter inviting him to a disciplinary hearing in March 2024. The applicant attended a disciplinary hearing on the 9th of April 2024, the applicant requested to have his legal practitioner but the headmaster declined this request and continued with the disciplinary hearing. The applicant alleged that the employer did not lead any evidence from witnesses and thus he did not get the opportunity to cross examine any witnesses.

The applicant alleged that he had approached the National Employment Council and lodged a complaint for unfair dismissal and non-payment of wages. The applicant appeared before the NEC on the 25th of July 2024 and the 1st respondent indicated that it wanted to settle the matter amicably. The applicant averred those negotiations between the parties failed thus the applicant resorted to an application for review of the proceedings. The applicant alleged that in the initial application for review, he had cited Greystone Park Primary School as the 1st respondent instead of citing Greystone Park Primary School Disciplinary Committee and thus that application was a nullity and thus it was withdrawn. The applicant however alleged that such application had been filed within the required time frame and thus the need to file a fresh application has led to the present application.

POINTS IN LIMINE

The Applicant’s point in limine based on the 1st Respondent approaching the court was dismissed on the basis that the principle is not applicable in the Labour Court. The 1st Respondent had itself taken two points in limine through its heads of argument. The first was that the Supplementary Affidavit filed by the Applicant had been improperly filed as the rules make no provision for same. The second point was that the draft relief being sought in the intended application for review being for reinstatement is not available to the Applicant as he was on suspension prior to the disciplinary proceedings. Having considered both parties submissions and the authorities relied upon by them the court dismissed both points. With regards the first point it was clear that whilst rule 14(5) of this court rules stipulates that no

supporting affidavits may be filed save with the court leave in this case the Applicant had clearly indicated that he would be seeking the court leave on the date of hearing which he did. The court in its discretion granted leave as the information contained therein was material information for the determination of the dispute. The second point was also dismissed on the basis that it is indeed the position now that the relief of reinstatement can be available in certain circumstances in an application for review. The authority is Zupco vs Mashinge SC 21 OF 2021 which was referred to by 1st Respondent Representative.

SUBMISSIONS OF THE PARTIES

The applicant submitted that the delay was not inordinate and that the delay was due to the fact that he made a mistake in drafting the initial application for review and thus the delay. The 1st respondent argued that the reason for the delay by the applicant was not candid and thus the explanation for delay was not reasonable.

The applicant further argued that he had prospects of success on the main application for review because the 1st respondent failed to furnish the applicant with written reasons for his dismissal. The 1st respondent argued that the applicant had been properly charged, disciplined and dismissed. The 1st respondent further argued that the applicant had not properly demonstrated how the principles of natural justice had been violated and thus the application for review had no prospects of success.

ISSUES FOR DETERMINATION

The issues that call for determination in this matter are as follows:

Extent of the delay and whether the explanation for such delay is reasonable.

Whether there are good prospects of success in the envisaged appeal.

Whether there is prejudice to be suffered by the other party if condonation is granted

APPLICATION OF THE LAW TO THE FACTS

The applicant has lodged an application for condonation for late filing for an application for review. There are certain requirements that need to be satisfied first before an application for review is granted. Condonation is not simply granted by virtue of the mere fact that a party has sought it.

This was emphasized by ZIYAMBI JA in Zimslate Quartize (Pvt) Ltd & Ors v Central African Building Society SC 34/17 as follows at p 7 of the cyclostyled judgment:

“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

The factors to be considered by the court were outlined by BHUNU JA in Mzite v Damafalls Investment (Pvt) Ltd & Anor SC 21/18, where he expressed the following at p 2 of the cyclostyled judgment:

“The requirements for an application of this nature to succeed are well known as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:

The extent of the delay;

The reasonableness of the explanation for the delay; and

The prospects of success on appeal.”

The Supreme Court in Read v Gardiner and Another (supra), cited with approval the approach taken by DUBE J as then was, in David Chiweza and Anor v Munyaradzi Paul Mangwana and 4 Others, HH 176-17 where the court held at page 4 that:

“A party who has failed to comply with the requirements of the rules is required to apply for condonation as soon as he becomes aware of the non-compliance and without further delay. He has the onus to convince the court that he has a good excuse for the delay. Condonation is not there simply for the asking. The interests of justice are paramount in an application for condonation. Condonation will only be granted where it is in the interests of justice to do so, regard being had to all the pertinent factors. The applicant is required to give a full, detailed and reasonable explanation for the delay in bringing the application. The full period of the delay and the date when action was eventually taken should be spelt out in the application to assist the court in determining the degree of non – compliance. The court is required to consider the requirements for an application for condonation cumulatively and weigh them against each other. The application for condonation is not decided on one exclusive factor. The existence of

strong prospects of success may compensate for any inadequate explanation given for the delay. Where the applicant proffers a good explanation for the delay this may serve to compensate for weak prospects of success in the main matter. Good prospects of success and a short delay, albeit with an unsatisfactory explanation, may lead to granting of the application. The court dealing with the application has a wide discretion which it must exercise judicially after considering all the circumstances of the case. The factors are not to be individually considered, but cumulatively considered with the strong making up for the weak. The court should endeavor to be fair to all the parties involved.”

The extent of delay and the reasonableness of the explanation

The applicant has to give a reasonable explanation of the delay. The delay by the applicant to file an application for review was 13 days and this was due to the fact that the applicant had initially filed an application for review within the stipulated time frame but withdrew it due to the fact that he had cited a non-existent party as the 1st respondent. A delay of 13 days is not inordinate.

The explanation for the delay in my view is reasonable. The applicant made a mistake in citing the respondent as Greystone Park Primary School and not Greystone Park Primary School Disciplinary Committee. This is a reasonable explanation. In the case of Furthermore, in Lunat v Patel SC 47/22 at p 6, CHATUKUTA JA held that:

“A party seeking condonation and extension of time must satisfy the court that a valid and justifiable reason exists as to why compliance did not occur and why non- compliance should be condoned. Further, regardless of the prospects of success, a court may decline to grant condonation where it considers the explanation for failure to comply with the rules unacceptable.”

The applicant has shown a reasonable explanation for the delay and the period of delay was not too long. The applicant however has to show that there are prospects of success on the main application for review.

Whether or not there are prospects of success on the merits

The other requirement in an application for condonation is to show whether or not there are reasonable prospects of success. The applicant has reasonable prospects of success on the application for review because the 1st respondent did not follow due process during the disciplinary hearing.

In the case of Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ2/24 at page 11 the court had the following to say:

“The test for reasonable prospects of success postulates an objective and dispassionate decision, based on the facts and the applicable law, as to whether or not the applicant has an arguable case in the intended application should direct access be granted. The prospects of success must not be remote but must have a realistic chance of succeeding. In this respect, a mere possibility of success will not suffice. There must be a sound rational basis for the conclusion that there are prospects of success in the main matter. In short, this Court must be satisfied that the applicant has an arguable prima facie case and not a mere possibility of success.”

The applicants are required to show that they have an arguable case on appeal as was noted by the court in Essop v S (2014) ZASCA 114, where the court stated the following at para 6:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

There is a procedural irregularity because the 1st respondent did not call any witnesses to lead evidence that the applicant had been absconding work. There are prospects of success on the main application for review because there were procedural irregularities thus the application for condonation should succeed.

DISPOSITION

The application for condonation being with merit be and is hereby granted. There will be no order as to costs.