Mudiwa Caroline Muzembe and Conrad Muchenje v Star Africa Corporation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/261/25
HARARE, 5 JUNE 2025
CASE NO. LC/H/275/25
MUDIWA CAROLINE MUZEMBE
1ST APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/261/25 HARARE, 5 JUNE 2025		CASE NO. LC/H/275/25

MUDIWA CAROLINE MUZEMBE	1ST APPLICANT

And

CONRAD MUCHENJE	2ND APPLICANT

And

STAR AFRICA CORPORATION LIMITED	RESPONDENT

Before the Honourable Kudya J;

On 5 June 2025 this court dismissed an application for leave to appeal to the Supreme Court at the behest of the applicant employees. A variety of points in limine were raised on the matter but all were eventually dropped to pave way for the resolution of the application on its merits. This judgment therefore addresses the merits of the leave to appeal application only.

It is settled that, leave to appeal can only be granted where a point of law is raised and where there are reasonable prospects on the merits on appeal. See Ngazimbi v Murowa Diamonds SC27/13

A point of law has been defined in various cases including East brook v Sable Chemicals.

SC 18/10.

Each of the tenets is addressed below:-

Point of law

The applicants put the following forward as the points of law which they intend to take up on appeal to the Supreme Court.

The Court a quo grossly erred and misdirected itself at law in dismissing the application for condonation of late filing of an appeal and extension of time within which to file an appeal on the basis that the appellants had no prospects of success in the intended appeal.

The court a quo erred at law when it was clear that the termination of the appellants’ contracts was instituted by a non-existent entity and was therefore null and void.

The court a quo further erred at law by making a finding that the intended grounds of appeal were akin to a review when there were no reviewable issues on the arbitrator’s award dated 30 August 2024.

Further, the court erred at law when it made a finding that the appellants waived their rights to challenge the termination when they accepted the money that was deposited in their respective bank accounts when it was clear that the money was paid unilaterally and there was no voluntary acceptance by the appellants.

On the prospects plane the applicants maintained that:-

The court erred to rule that appeal grounds were more of review than appeal.

Court overlooked that, appeal was against arbitral award of 3 May 2024.There were no issues about how the award was arrived at. Reservations were on how the employer terminated the contracts of employment. Arbitrator ruled that contracts were not

unlawfully terminated. Arbitrator determination said it referred to Section 12 (C) 2 of the Labour Act as being complied with and said appellants waived right to challenge the termination. This was not proper mindful of provisions of Section 12(4) of the Labour Act. Employer terminated employment as discussed retrenchment. Appeal is based on the record, no procedural issues arise thereon.

It was wrong for the court to conclude that there were no prospects yet it was clear that arbitrator did not apply the facts of unlawful termination or discussed retrenchment. Retrenchment was not done properly and Chidziva v ZISCO Steel 1997 (2) ZLR 368 (S) case on waiver did not apply.

A reading of the basis upon which the leave to appeal application was premised demonstrates that applicants were merely repeating what they stated before the court when it dismissed their condonation application. The court was very clear in its decision on the condonation application that the applicants could not accept and use the retrenchment money and turn round to argue that they had been and unlawfully dismissed. See Chidziva (Supra) on waiver.

There is nothing else new that was set out in the leave application to cause the court to shift its earlier position that the applicants were out of the court on account of the waiver principle. The court was therefore satisfied that the tenets for grant of leave to appeal were not satisfied hence its dismissal of the application for leave to appeal.

Saunyama Dondo Legal Practitioners	Applicant Legal Practitioners

Mawere Sibanda Commercial Lawyers	Respondent Legal Practitioners