Enock Chungu and 148 Others v African Sun Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/01/25
HELD AT HARARE 13 NOVEMBER 2024
CASE NO. LC/H/990/24
AND 2 JANAURY 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 13 NOVEMBER 2024

AND 2 JANAURY 2025

IN THE MATTER BETWEEN:-

JUDGMENT NO. LC/H/01/25 CASE NO. LC/H/990/24

ENOCK CHUNGU AND 148 OTHERS	APPLICANTS AND

AFRICAN SUN LIMITED	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicants	Mr. M. Gwisai

For Respondent	Mr. F. F. Nyamayaro

MURASI J.,

This is a composite application for condonation and extension of time within which to file an application for Leave to Appeal to the Supreme Court and an application for leave to appeal to the Supreme Court.

This Court rendered a judgment on 22 April 2024 in which it dismissed Applicants’ appeal against the decision of the Designated Agent. In terms of the Labour Court Rules, 2017, Applicants were supposed to have filed an application for leave to appeal to the Supreme Court by 22 May 2024. They did not. The present application was filed on 17 September 2024. The attached prospective grounds of appeal are as follows:

The Court a quo erred at law in ruling that it was not mandatory for an employer to comply with the requirements concerning special measures to avert retrenchment in terms of s 12 D (2) and (2a) before embarking on retrenchment whereas the said provisions are worded in the peremptory and therefore the failure to comply with same rendered the subsequent retrenchment a nullity.

The Court a quo erred at law and misdirected itself in fact by ruling that there was proper consultation of the ‘employees concerned’ because they were represented by the Workers Committee, whereas at law the Workers Committee did not have such authority and neither,

on the evidence presented, was the Workers Committee mandated by the ‘employees concerned’ to represent them.

At the commencement of the oral hearing, Mr. Nyamayaro stated that he had a preliminary point to raise. He submitted that most of the Applicants cited inn the application had not filed any Supporting Affidavits identifying themselves with the causa. He added that in such applications, it was essential for such litigants to file these documents as this was not a continuing matter but a new one. He argued that had the Applicants filed a Declaration as they had done before the Designated Agenet, such issue would not have been raised. He further submitted that this issue could not be described as a technicality as it was a requirement in terms of the law. As a result, the Applicants would did not file any Supporting Affidavits were not properly before the Court.

In response, Mr. Gwisai stated that the issue had been canvassed in the heads of argument where it was averred that the present matter was not a new matter, and that Applicants were at liberty to file a Declaration in place of Supporting Affidavits. He added that this had been the issue dealt with in the Mapondera Case where courts were encouraged to dispense with trifling issues and deal with the matter placed before that court.

Mr. Nyamayaro argued that the absence of a Supporting Affidavit was not a procedural issue, and the present application was not a continuation of the previous matter in the sense that judgment had been rendered by the Court indicating finality in the proceedings. He added that the Court’s decision was not interlocutory.

The Court aligns itself with the argument made by Mr. Nyamayaro that this indeed was a fresh matter the Court having made a ‘final’ decision in the appeal before it. It was therefore not a continuing matter. If it were a continuing matter, there was no reason for the other Applicants to file Supporting Affidavits. A reading of the record shows that fifty (50) Applicants filed Supporting Affidavits. The matter has 149 Applicants. This would mean that a total of 148 Supporting Affidavits should have been filed with matter. The record however shows that 52 Supporting Affidavits are filed of record. The anomaly lies in the fact that two of the Applicants had duplicate Supporting Affidavits filed on their behalf. Stabile Ndou’s second Supporting Affidavit is at pages 97 to 98 whilst that of Sikhumbuzo Nyoni is found at pages 101 to 102. Mr. Gwisai argued that the Applicants could have filed a Declaration instead of Supporting Affidavits. It is a correct observation. However, the other Applicants referred to by Mr. Nyamayaro did not file either the Supporting Affidavits or the Declaration. Legally, it cannot be said that they are part of the causa. The Court therefore recognizes the Applicants who have filed Supporting Affidavits to be properly before the Court whilst the rest are deemed to be improperly before the Court.

SUBMISSIONS ON THE MERITS APPLICANTS’ SUBMISSIONS

Condonation

In submissions, Mr. Gwisai stated that this was a composite application and that he abided by the statements made in the heads of argument. He further submitted that the application was being made some four months after the judgment was rendered by the Court and that the delay could not

be considered as inordinate. He stated that the main reason was that the Applicants were a large group and they needed to consult one another and raise the requisite funds and this took a considerable period of time to accomplish. It was further submitted that one should have regard to the prospects of success which should cover any deficits in the explanation tendered in the matter. The Founding Affidavit contains the following explanation:

“Paragraph 3:

Judgment was handed down by this Honourable Court on 22 April 2024. The application for leave to appeal to this Court to which I now seek condonation was supposed to be filed within twenty-one (21) days therefrom, that is by the 22 May 2024. Employees are therefore now about two (2) months out of time.

Paragraph 6:

The Applicants are 149 and spread all over the country thus getting all of them to make a collective decision to proceed with the matter was a mammoth task. I addition, getting to each and every one of them to depose to the supporting affidavit was a difficult task. The supporting affidavits attached will further prove that Applicants are scattered all over the country.

Paragraph 7:

Applications of this nature require the services of a legal practitioner and they charge legal fees. Most of the applicants are out of employment. It therefore took us time to come up with the requisite fees to engage a legal practitioner to assist.”

Prospects of Success

Mr. Gwisai submitted that the Court was not correct in its determination as far as the interpretation of section 12 D was concerned. He argued that the Court had interpreted the wording of ‘may’ as giving the Respondent a discretion in the matter. He further argued that a holistic interpretation of the section as read with section 12 D (8) showed that it was a peremptory provision and that the Respondent did not have any discretion in the matter. Mr. Gwisai further submitted that this was an arguable point of law as the adoption of Special Measures to avoid retrenchment was supposed to be adhered in terms of the statute.

In respect of the interpretation of section 12C of the Act, Mr. Gwisai submitted that the Court was incorrect in determining that the Applicants had been represented by the Workers’ Committee when precedent from the Supreme Court had showed that there was a distinction between representatives of workers who are supposed to be retrenched and those to be represented by a Workers Committee. He argued that the Workers Committee had no mandate in terms of the law to represent the Applicants who were subject to the retrenchment process. To this end, he further argued that such employees are entitled to engage their own representatives. Mr. Gwisai further submitted that this was an arguable point of law and that the Court should allow the matter to be heard on appeal by the Supreme Court as there were prospects of success.

In response to the submissions made by Respondent’s Counsel, Mr. Gwisai stated that the Applicants had not consented to the package offered and given by the Respondent.

RESPONDENT’S SUBMISSIONS

Condonation

Mr. Nyamayaro submitted that the explanation tendered by the Applicants was not reasonable in the circumstances. He stated that on receipt of the judgment of the Court, any Applicant who was dissatisfied with it, was enjoined to contact the others and make common cause in their intention to appeal against the judgment. He further stated that the fact that the Applicants are spread all over the country was non-availing with the advent of technology which allowed persons to communicate easily. Mr. Nyamayaro also stated that the Applicants had employed the use of a Declaration before the Designated Agent and it had not been explained why this had not been done in the present circumstances. He also dismissed the issue of lack of funds and argued that every litigant would be allowed to adopt such a reason for non-compliance with the rules.

Prospects of Success

Mr. Nyamayaro submitted that the Court had adopted the thought process that had been referred to by the Designated Agent in that the word ‘may’ is not the same as ‘shall’, the latter showing the peremptory nature of the command. He further argued that the same lawgiver had used two different commands in the same section depicting an intention to have separate command structures. He also stated that courts need to have pragmatic approaches to every situation and referred to the situation under which the retrenchment process was undertaken which was under the COVID-19 pandemic situation. He added that meetings were held with the Works Council as permitted in terms of the prevailing situation and that the decisions were made through those persons representing the employees. He argued that this is what the Designated Agent had to consider, the representation of the employees.

Mr. Nyamayaro further argued that Respondent had indeed complied with section 25 of the Act and that after the Notices of Retrenchment had been issued, the employees themselves had consented to that retrenchment and had accepted the package that had been offered by the Respondent and that a sample of the letters and acknowledgements had been placed before the Designated Agent and the Court. Mr. Nyamayaro further submitted that Applicants had not addressed the issue of the funds received as retrenchment packages and that there was no attempt by any of the Applicants to return the funds to the Respondent. He submitted that there were no prospects of success in the circumstances.

ANALYSIS CONDONATION

In Maheya v Independent African Church SC 58/07, it was held as follows:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which is has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that is has to do justice. Some of the

relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefor; the prospects of success on appeal; the importance of the case; the respondent’s interest in the finality of the judgment; the convenience of the Court and avoidance of unnecessary delays in the administration of justice.”

Further, in Kodzwa v Secretary for Health and Another 1999 (1) ZLR 313 (S), it was held as follows:

“Condonation for non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance. The Court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and satisfactory grounds being shown by the applicant.”

Issues of condonation have been dealt with in many a precedent and many cases relate to the fact that there should be a complete explanation for the failure to comply with the rules. In Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others (2010) 31 ILJ 1413 LC at para [13] it was held as follows:

“In explaining the reason for the delay, it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be.”

I will begin with the explanation that the Applicants are scattered all over the country. The application has 149 Applicants. Elsewhere in this judgment I have dealt with the number of Applicants who have filed Supporting Affidavits. They are fifty in number. This means that more than ninety of these Applicants did not file any documents associating themselves with the causa. Six (6) Applicants signed their Supporting Affidavits in Bulawayo, six (6) in Harare, thirty-five

(35) in Victoria Falls whilst one (1) had the place inscribed as Makoni but the Commissioner of Oath’s address is given as Glen Norah in Harare. Three towns in the country can hardly be described as ‘all over the country’. As pointed out by Respondent’s Counsel, it has not been explained why the Declaration procedure, which had been used before the Designated Agenet, was not used in the circumstances.

It is trite that a Court is permitted to refer to its own records. In Case Number LC/H/297/21, the decision of the Designated Agent was rendered on 9 June 2021 and the appeal to this Court was filed on 6 July 2021. The issue of the Applicants being ‘scattered all over the country’ was not an issue. It is therefore surprising that this has been raised as an issue affecting the filing of the present application.

The next issue is the averment made in the Founding Affidavit in paragraph 3 thereof to the effect that the ‘Employees are therefore now about two (2) months out of time’. This is clearly not a correct statement. The Founding Affidavit states that the application for leave to appeal was due by 22 may 2024. The present application was filed on 17 September 2024. Mr. Gwisai gave the computation as four (4) months which contrasts with the averments in the Founding Affidavit. Those submissions are clearly inconsistent with each other.

A disturbing feature is the absence in the explanation of what was happening between the date when the Court rendered its judgment and when the Applicants decided to file an application for leave to appeal to the Supreme Court. The Court’s decision was on 22 April 2024. The first of the Supporting Affidavits was signed on 26 July 2024. This was some three (3) months after the judgment. No explanation was given as to what was taking place. It has been averred that the Applicants were indeed out of funds and are unemployed. In African Star Diamonds (Pvt) Ltd v Nyamuchanja & Ors HH 313/17, MAKONI J (as she then was) made the following observation:

“I do not find the first respondent’s explanation to be persuasive. Failure to act timeously due to financial constraints to raise fees is not a reasonable and credible explanation.”

I associate myself with these observations given the fact that no explanation of how the funds were being raised has been tendered in the Founding Affidavit and the Applicants’ legal practitioner did not allude to these circumstances in a positive way. In my view, it was pertinent for the Applicants’ legal practitioners to submit a Supporting Affidavit in this regard. Such Supporting Affidavit would show when they were instructed by the Applicants, the difficulties the Applicants faced in raising the legal fees and, lastly, the difficulties the legal practitioners faced in collating the information necessary to file the present application. This clearly would have assisted the Court in making the determination of whether such explanation as tendered by the Applicants was reasonable and acceptable in the circumstances. There is a dearth of information beginning from the date the Court rendered its judgment and the date when the present application was filed. As pointed out elsewhere in this judgment, most of the Applicants who submitted Supporting Affidavits are in three towns. The bulk of those are based in Victoria Falls. The difficulties faced in these circumstances, remains an issue of surmise and conjecture. It is my view that Applicants have not tendered a reasonable and acceptable explanation in the circumstances.

Prospects of Success

In Essop v S [2016] ZASCA 114, it was held as follows:

“What the test for 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 categorized as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

The genesis of this matter is found in Statutory Instrument 76 of 2020 made in terms of section 27

(2) of the Civil Protection Act, (Chapter 10:06). This section provides that the President may in such manner as he considers fit declare that with effect from a date specified by him in a declaration a state of disaster exists within an area defined by him in the declaration. In terms of the aforesaid Statutory Instrument, section 3 thereof provided:

“In the wake of the declaration by the WHO of COVID-19 as a global pandemic, a state of disaster exists in all rural and urban areas in Zimbabwe with effect from promulgation of this notice.”

The Notice was promulgated on 23 March 2020. Reference to this fact is captured in the Court’s judgment rendered on 22 April 2024. This Court also referred to the findings of the Designated Agent at page 3 of the judgment where the following is captured:

“The measures to avoid retrenchment stipulated in section 12 D (2) are that of instituting shift work or short time work. It should be noted that the cited measures are not mandatory but the parties ‘may agree’ to implement them. For the respondent to implement shift work or short time work was not feasible because the entities were closed due to COVID-19 induced locked down coupled with low business thereafter. However, the respondent adopted other measures to avoid retrenchment. Fixed term contracts were terminated and employees were paid 50% salary from April to August 2020. The claimants were paid for six months whilst seated at home.”

This Court made the following findings:

“The findings are supported by the facts. The Appellants do not contest that these facts are common cause. Therefore, there cannot be any misdirection on the facts.”

The above findings were made in line with precedent which is settled that an appellate court will not interfere with the factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion. It is also a truism that the mere fact that the reviewing judge might have come to a different conclusion is no ground for interference. (See ZINWA v Mwoyounotsva SC 28/15, Nyoni v Secretary for Public Service, Labour & Social Welfare & Anor 1997 (2) ZLR 516 (H))

This Court went on to deal with the issues raised in the grounds of appeal. At page 5 if the judgment, the Court relates to the provisions of the statute and refers to the words ‘may’ and ‘agree’ in the provision. It has not been stated by the Applicants that those words are used. However, te Applicants insist that the word ‘may’ should be interpreted to mean ‘shall’. The Court did not agree with the argument and cited relevant case law in support thereof. The Court wishes to refer to the submissions made by the Applicants before the Designated Agent titled “Claimants Statement of Submission in Support of Point of Law”. Paragraph 11 thereof reads:

“What is important to note is that the meetings that were done prior to 20 August 2020 were meetings of the National Works Council. Such meetings discussed the deteriorating business environment due to the worsening COVID-19 pandemic including measures to

ensure livelihood and measures to avert mass scale loss of jobs. Such was within the remit of a Works Council in terms of s 25 (a) (5) of the Act which requires an employer to consult the works council on any proposals regarding retrenchment. Similarly, the Works Council was empowered to discuss special measures to avert retrenchment under s 12 D (1) and (2).”

The submission concedes that there were indeed meetings held between the Respondent and the employees regarding the measures to be taken as measures to avoid retrenchment. The result of these meetings was that fixed term contracts were terminated and employees were to be paid 50% of their salaries whilst at home and not attending to any work. The concession has not been withdrawn in terms of the Civil Evidence Act. Clearly Applicants are blowing ‘hot and cold’ in respect of the ground of appeal averring that Respondent did not comply with the provisions of the Act as regards section 12 D of the Act. It would also appear from correspondence from Applicants’ legal practitioners as regards this issue that arguments raised by the Applicants have not been consistent. In a letter dated 12 October 2020 addressed by the Applicants’ legal practitioners, the following was stated:

“We are informed that you did not substantively or at all carry out a consultative engagement with the Works Council as required by section 25A of the Labour Act.”

This statement is inconsistent with the submission quoted above. In any event, Applicants, in their submissions, refer to various meetings which were held at the instance of the respondent in order to address the effects of the COVID-19 pandemic. It is my considered view that the ground of appeal has no prospects of success.

The other ground of appeal should not detain the Court. Applicants do not dispute the fact that there was a ‘state of disaster’ as declared by the President. Applicants do not dispute that they were not reporting at their workstations due the effects of the pandemic. Applicants were also aware that meetings were taking place between the Respondent and their representatives which resulted in fixed term contracts being terminated and their receiving 50% of their salaries. Respondent was not dealing directly with all the employees due to the state of disaster. The information on retrenchment was communicated to all employees through the representatives who attended those meetings. It is also common cause those meetings were held via video conferencing as shown by the minutes of the meeting of 27 March 2020. It was not possible to meet the employees individually or through ‘selected’ representatives. This was the essence of the decision of the Designated Agent. The Court agreed with those findings on the facts. The representatives that Respondent was already dealing with carried out the mandate. Was there no substantial compliance with the Act? The facts show that there was substantial compliance with the Act. After the meeting with the representatives, individual letters were written to the affected employees.

The letters contained the same information. Samples were filed with the Designated Agent and this Court. The letter gave reasons for the retrenchment and the package offered to the individual employee. The Notice of retrenchment also had a portion which was to be filled in by the employee. It reads as follows:

“I….acknowledge that I have had an opportunity to peruse and consider this agreement and that I agree to terminate my employment contract with African Sun Limited on the basis of the terms and conditions set out in this agreement. I hereby waive all rights to either challenge the package or the termination of my employment contract.

I accept the remuneration package as the full and final settlement of all claims that I currently have or may have against African Sun Limited arising from my contract of employment.”

Provision is made for the signature by the employee. As observed by Mr. Nyamayaro, Applicants do not refer to this issue at all. There is no averment by the Applicants that they did not understand the provisions of the retrenchment document and what they were signing for. There is no averment that they were coerced into signing these documents. In ZFC Limited v Furusa SC 15/18, the Supreme Court had this to say:

“The general principle which applies to contracts, and commonly designated as caveat subscriptor, is that a party to the contract is bound by his signature, whether or not he has read or understood the contract, or the contract was signed with blank spaces later to be filled in.. It is sound principle of law that a man, when he signs a contract, is taken to be bound by the ordinary meaning and effects of the words which appear over his signature.”

In National Railways of Zimbabwe Contributory Pension Fund v Ekutulene Investments t/a Walkers Pub and Restaurant & Another HB 95/16, it was held as follows:

“If there is one thing that more than any other public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by the courts of justice. Therefore, you have this paramount public policy to consider- that you are not lightly to interfere with this freedom of contract.”

My understanding of the above cases is that where a person of mature age voluntarily enters into a contract and obtains a benefit from it, that person cannot be permitted to wriggle out of the obligations obtaining from such contract. This has been stated to be a principle of public policy obtaining in many a civilised country. In casu, Respondent and Applicants’ representatives agreed on a package which was communicated individually to the Applicants. Each Applicant had peculiar benefits applicable to him/her. Each Applicant proceeded to sign the agreements acknowledging that each agreed with the contents thereof. Money was subsequently disbursed to the Applicants as provided in the agreement and the Applicants received the money. Applicants have now turned around and allege that the process was irregular. This is clearly contrary to the provisions of the agreement signed by the Applicants. It is my view that the desire by the Applicants is to invite the Supreme Court to revisit the entire dispute and exercise a fresh discretion in the matter. I would be failing in my gatekeeping function to allow the matter to proceed on appeal. There are no prospects of success.

The following Order is appropriate:

The application for condonation of the late noting of an application for leave to appeal to the Supreme Court is hereby dismissed for lack of merit.

The application for leave to appeal to the Supreme Court is also dismissed.

The Applicants deemed to be properly before the Court are to meet Respondent’s costs, jointly and severally, the one paying and the other to be absolved.

Matika, Gwisai & Partners-	Applicants’ legal practitioners Nyamayaro and Bakasa Attorneys-	Respondent’s legal practitioners