Goldmore Investments (Pvt) Ltd v Forbes Chitsenga N.O. and 69 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/158/25
HARARE, 20 FEBRUARY, 2025 AND
15 APRIL 2025
CASE NO LC/H/1321/24
GOLDMORE INVESTMENTS (PVT) LTD
APPLICANT
FORBES CHITSENGA N.O. AND 69 OTHERS
RESPONDENTS
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/158/25

HARARE, 20 FEBRUARY, 2025 AND

15 APRIL 2025

CASE NO LC/H/1321/24

GOLDMORE INVESTMENTS (PVT) LTD

APPLICANT

FORBES CHITSENGA N.O. AND 69 OTHERS

RESPONDENTS

Before the Honourable G. Musariri, Judge:

For Applicant - O. Makonya, Admin Clerk

For Respondents - B. Daniel, Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of a belated review. The application was made in terms of Rule 22 of the Labour Court Rules, 2017. Respondents opposed the application. The pertinent parts of the founding affidavit stated that;

“7. This is an application for condonation to reinstate a review application LCH 488/2024 against the entire determination made by the first respondent in applicant’s absence dated the 16th of December 2022 ‘B’ refers.

8. The application was set down before the labour court on the 29th November 2024 whereas the matter was struck off on the 6th day December 2024 ‘C’ refers.

10.1 Applicant became aware of the determination entered against it on the 25th of April 2024 through the writ of execution service by the Sheriff of the High Court ‘D’ refers.

10.2 In fact whereupon became aware of the determination applicant approached the labour court on review under reference LCH 488/2024.

10.7 Prude that the designated agent being the first respondent herein, does not allege that he serviced (sic) his determination to the applicant as he is obliged by the Act.

10.8 The purported proof of service filed of record is by one Cotten Ndlovu who is not the designated agent or an employee of the National Employment Council for the Mining Industry despite the proof of service is on the NEC document is a legal nullity and has no legal force.

11.2 I submit that between 2019 and December 2021 being the period of the covered (sic) by the determination the mining industry minimums were in Zimbabwean dollars not United States Dollars awarded in the determination, ‘G’, ‘H’ and ‘I’ and ‘J’ is proof thereof.


11.3 Assuming but not conceding that there exists underpayment same cannot be in United States dollars contrary to the collective bargaining agreement being the basis to claim underpayment.

11.8 In the results the prospect of success on merits cannot be doubted in the circumstance.”

Respondents countered through the 2\textsuperscript{nd} respondent’s opposing affidavit the material parts of which read;

“11. …The Applicant cannot deny the obstinate fact that through Chrispac Chisasa, it sought to negotiate a settlement out of court and comes before this Honorable Court carrying the ignorance card in an effort to hoodwink this Honorable Court into believing that the only time it saw the determination was when it was served with the Writ of Execution. The emails from Chrispac Chisasa are proof beyond any reasonable doubt that the Applicant has known of the determination for the past 2 years. Attached is a copy of the Email.

12. … It is respectfully submitted that there are no prospects of success in this matter as a whole and in this application for condonation filed of record. The Applicant has failed to establish the corruption, malice and bias of the 1\textsuperscript{st} Respondent which forms the basis of the review it desperately wants to be reinstated. The Applicant makes bare allegations of gross irregularities without any substantiation of the same. The general rule is that he who alleges must prove and the Applicant is failing to prove or event (sic) give tangible evidence of the alleged misconduct.


13. The argument about the United States Dollar payment is another failed attempt by the Applicant to rid of its obligation to pay the Respondents as directed by the determination of the 1st Respondent…. The payslips of the Respondents show that they were earning in United States Dollars. It is the currency which the Applicant chose to pay the Respondents. It should honour up and comply with the determination of the 1st Respondent. Attached hereto is a copy of some of the Respondents’ payslips.

14. It is important to note that the Applicant was in willful default as it willfully chose not to attend the meeting by the 1st Respondent despite being served with the notice of hearing to the determination where the Applicant made a no show. Attached as Annexure D is a copy of the Notice of hearing that was served on the Applicants.”

Analysis

Applicant initially filed an application for review in this Court under reference R-LCH 488/24. By judgment LCH 484/24 the Court struck off the application as a nullity for failure to comply with the timelines set by the Rules of this Court. Applicant then filed the present application for condonation on the 31st December 2024.

Delay: The proceedings sought to be reviewed were concluded by the determination dated 16th December 2022. The extent of delay is almost two (2) years.

Explanation: The gist of the explanation is that applicant only became aware of the determination on 25th April 2024 (para 13 of its heads of argument) when it was served with a writ of execution by the Sheriff of the High Court. The explanation is belied by applicant’s agent, Chrispac Chisasa’s email dated 13 February 2023 addressed to respondents’ erstwhile attorneys as follows;


“As per our telephone discussion give us some time to figure out what transpired to result into this default judgment… We are engaging our employees with the view of an out of court settlement as such we pray that you stay your process for the meantime. Hope you will find this in order.”

Further Annexure E to the application shows that applicant was aware as of June 2023 of proceedings to register the impugned determination in the Magistrates Court. Therefore the explanation for delay is unsatisfactory if not worse as submitted by respondents.

**Prospects:** The applicant’s case on the merit is that the determination wrongly made an award in United States Dollars yet the employment contracts ‘were governed by Zimbabwean Dollars.’ The respondents stated that it was the applicant who was paying them in US Dollars. The determination noted that;

“The claimants averred that the respondent was underpaying them for the period from January 2019 to December 2021 on the basis of incapacity against the collective bargaining agreement and no exemption was sought and granted from the National Employment Council for the Mining Industry.”

It is common cause that the US Dollar was decommissioned by S.I. 33 of 2019 with effect from February 2019. The bulk of respondents’ claims fall within the period prior to the multi-currency regime currently obtaining. Therefore, applicant has a reasonably arguable case on the merits.

**Conclusion**

The extent of delay is long and the explanation therefor is unsatisfactory. However, the applicant has an arguable case on the merits. The applicable law in such situations is set out in the case of;


Chibanda v Harare SC 83/21

Per Hlatshwayo JCC

“It is settled that where no acceptable explanation for non-compliance with the rules has been given, an applicant for condonation must at least show very good prospects of success… The applicants are required to show they have an arguable case on appeal…”

On that basis this Court is persuaded to exercise its discretion in favor of the grant of condonation.

Wherefore it is ordered that,

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


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

3. Each party shall bear its own costs.

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