Aaron Kurwara v No Leaks Motors (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/402/2025
HARARE, 14 OCTOBER, 2025
CASE NO. LC/H/335/25
and 22 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/402/2025

HARARE, 14 OCTOBER, 2025

and 22 OCTOBER 2025

CASE NO.	LC/H/335/25

AARON KURWARA	APPELLANT

NO LEAKS MOTORS (PVT) LTD	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- T. Rukwanda, Attorney

For Respondent	- S. Musapatika, Attorney

MUSARIRI, J:

On 31st March 2025 at Harare, Designated Agent A. Madzure issued a determination which ordered respondent to reinstate appellant or pay damages in lieu of reinstatement in an amount of USD$ 1,920.00. Appellant appealed the determination to this Court in terms of section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal and filed a cross-appeal in terms of rule 19 (4) of the Labour Court Rules, 2017.

At the onset of oral argument appellant raised a point in limine which respondent opposed.

The point was set out appellant’s affidavit, as follows, “In Limine

The Cross Appeal was overtaken by events and the Cross Appellant is estopped from arguing the appropriateness of reinstatement order.

The cross appellant cannot raise issues pertaining to reinstatement at this stage. It already accepted reinstatement. The determination by the designated agent gave Cross Appellant two options and it chose the 1st option which was reinstating me. Pursuant to that reinstatement, it suspended me with a letter dated 7 April 2025. The grounds of suspension were clearly malicious which forced me to resign. Cross Appellant wrote me a letter accepting my resignation. Copy of the said letter is attached hereto marked Annexure A.

In light of the above, Cross Appellant cannot be allowed to blow hot and cold water. It cannot accept reinstatement order and then suddenly appealed against the same order. It is estopped from having its cake and eat it.

The Appellant has since accepted the designated agent’s determination. It acted upon it and caused me to resign. Whether or not reinstatement was justified is now moot and academic. I was already reinstated. Thereafter new issues arose which forced me to resign.”

In its heads of argument respondent dealt with the point in limine rather tersely thus,

“38.  The argument that the matter is now moot applies to the Appellant and not Respondent. There is no evidence to support the allegation of reinstatement. What is common cause is that Appellant opted for clause 3 of the determination and resigned which means he opted to let go any payment. There is no approbating and reprobating.

39.	The prayer for costs….”

Analysis

The starting point is the Designated Agent’s (DA) determination. It gave the parties 3 options namely

“It is ordered that:

Option 1

The Respondent reinstate the Claimant to his original position prior to the suspension with effect from Monday 07 April 2025. The Claimant was on suspension…

Option 2

In the event the Respondent no longer require the services of the Claimant, as per request of Claimant he must pay a total of USD$ 1,920.00 being USD$960.00 as notice pay and USD$ 960.00 as damages/compensation for loss of employment.

The payment ….

Option 3

In the event the Claimant no longer want to serve the Respondent as a result of some other reasons it would be deemed as resignation and therefore will be entitled to nothing.

I so award.”

The respondent was given the 1st and 2nd options. Either it reinstated appellant or paid damages in lieu of reinstatement. The determination was issued on 31 March 2025. Then on 3 April 2025 appellant’s attorney wrote to respondent specifically offering to return to work per option 1 of the determination. On 7 April 2025 wrote to appellant in the following terms in part,

“This letter serves to advise you that you are hereby suspended from employment without pay and benefits with immediate effect.

You will also be required to attend a disciplinary hearing …”

The letter is addressed to appellant at the workplace thus ‘Mr Aaron Kurwara c/o No Leak Motors 21 Harare Street Harare.’

The court is satisfied on a balance of probabilities that respondent exercised the option to reinstate appellant. Appellant’s word that he was reinstated is bolstered by the address and timing of the suspension letter soon after the reinstatement order and appellant’s offer to return to work. The work address shows he was reinstated and then suspended.

Conclusion

The finding by this Court that respondent reinstated appellant per the 1st option given by the Designated Agent’s determination inexorably leads to the conclusion that respondent’s cross- appeal is now moot. The Court’s declines to exercise its jurisdiction in line with the dicta in the matter of

Khupe v Parliament

Per Malaba CJ at 920D 2019 (3) ZLR 915 (CC) at 920D

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court’s jurisdiction ceases and the case becomes moot.”

at 923B

“The refusal of courts to decide cases which have become moot because of a cessation of a dispute between the parties derives from the common law notion that the function of a court is limited to determining rights and obligations that are actually controverted in the particular case before the court.”

In the circumstances appellant’s point in limine abounds with merit and ought to be upheld.

Wherefore it is ordered that,

Appellant’s point in limine be and is hereby upheld;

Respondent’s cross-appeal is struck off for mootness; and

The Registrar of this Court is directed to re-set the matter for continuation on the earliest available date.

G. MUSARIRI J-U-D-G-E