KSK Engineering (Private) Limited v Cain Gadzira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/223/25
HARARE, 16 JUNE, 2025 AND
20 JUNE 2025
CASE NO LC/H/266/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/223/25

HARARE, 16 JUNE, 2025 AND

20 JUNE 2025

KSK ENGINEERING (PRIVATE) LIMITED

CAIN GADZIRA

CASE NO LC/H/266/25

APPLICANT

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant

For Respondent

- T.R. Round, Attorney

- N. Matongwana, Unionist

MUSARIRI, J:

Applicant applied for leave to appeal this Court’s judgment LCH 67/25 to the Supreme

Court of Zimbabwe. The application was made in terms of Section 92F (2) of the Labour Act Chapter 28:01 as read with Rule 43 of the Labour Court Rules, 2017. Respondent opposed the application.

The draft appeal had 3 (three) grounds of appeal but applicant abandoned the 3rd ground. The remaining grounds read thus;

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JUDGMENT NO LC/H/223/25 CASE NO LC/H/266/25

“Having accepted and found that the Respondent was reinstated to his former position without loss of salaries and benefits on the 7th of February 2022 and that he never reported for duty as ordered, the court a quo erred in both fact and law in awarding the Respondent

outstanding salaries up to April 2023 on the reasoning that he only repudiated his

employment after receipt of his reinstatement determination.

2. A fortiori, the court a quo erred in law by interfering with the factual findings of the Arbitrator who made a factual finding that the Respondent voluntarily decided not to report for duty after being reinstated, thereby repudiating his contract of employment with the Appellant.”

Respondent countered in his opposing affidavit thus;

“Points in Limine

(Abandoned during oral argument.) On Merit

7.1 The court did not err in ordering payment of outstanding salaries up to April 2023. The court found that the respondent became aware of the determination for reinstatement on 6 February 2023. A year after the determination has been issued out.

7.2 The court was correct (was correct) in its findings and respondent can not be faulted on

the period which he was not aware of the determination and it was not in dispute that the respondent became aware of the determination on 6 February 2023.”

Analysis

There is a plethora of Supreme Court cases controlling applications for leave to appeal. This Court is guided by the dicta in the case of,

Ngazimbi v Murowa 2013 (1) ZLR 569(S) Per Malaba CJ at 572 G

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JUDGMENT NO LC/H/223/25 CASE NO LC/H/266/25

“It is important to relate to the requirement for an application for leave to appeal to the purposes thereof. These are for the decision to be made on the questions.

whether the grounds of appeal relate to questions of law and the existence of prospects of success on appeal.”

The Court will proceed to apply the dicta to each of the grounds of appeal in casu.

1st Ground:

Both this Court and the Arbitrator found that the respondent repudiated his contract of employment. However the two differ as regards the date of repudiation. This Court found the date to be April 2023 when respondent’s representative wrote to applicant soon after signing for the determination. The Arbitrator did not specify the date but implied either the date of the determination February 2022 or soon thereafter when applicant wrote to respondent ‘advising him to report for duty.’ There is no evidence of the date or letter written by applicant as alleged. It was on that basis that applicant’s argument was discounted by this Court. In any case the issue of the date of repudiation is a question of fact and not law. Therefore the 1st ground does not pass muster for appeal.

2nd Ground

The 2nd ground is a development of the 1st ground. It is not a stand-alone ground. As such its fate is tied together with that of the 1st ground.

Conclusion

From the foregoing analysis it is apparent that the present applicant fails to meet the requirements

for leave to appeal as elucidated by cited case. Perforce the application ought to be dismissed as devoid of merit.

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JUDGMENT NO LC/H/223/25 CASE NO LC/H/266/25

Wherefore it is ordered that,

1. The application for leave to appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E

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