Mudiwa Caroline Muzembe & Anor v Star Africa Corporation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 26 FEBRUARY 2025
JUDGMENT NO LC/H/106/2025 CASE NO
LC/H/1297/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 26 FEBRUARY 2025

JUDGMENT NO LC/H/106/2025 CASE NO LC/H/1297/24

In the matter between:-

MUDIWA CAROLINE MUZEMBE	1st APPLICANT

CONRAD MUCHENJE	2nd APPLICANT

STAR AFRICA CORPORATION LIMITED	RESPONDENT

Before the Honourable Kudya J

For the Applicants	Sibongile Chihombe (Legal Practitioner) For the Respondent	Helen Nare (Legal Practitioner)

KUDYA, J:

On 26 February 2025 this court handed down an order dismissing with costs the applicant’s application for condonation for late noting of an appeal and extension of time within which to file the same.

On 1 March 2025 the applicants through their lawyers wrote to the court requesting for reasons for the dismissal of the condonation application. These are the reasons.

The background of the matter is that the applicants were retrenched by the employer. The employer went ahead and deposited money into the applicants’ bank accounts. They protested that they were of the view that the package was not sufficient. They however utilised the money but went before the conciliator and finally the arbitrator where they were querying the package paid to them. The arbitrator concluded that since they had not returned the money they had

waived their right to challenge the retrenchment process. They are unhappy about the arbitral decision so they intend to appeal to the Labour Court against that award.

They appealed to the Labour Court against the arbitral decision but their case was struck off the roll on account of the fact that it was improperly before the court. Despite the striking off order they are still desirous of proceeding with their appeal. They are however out of time on account of the striking off order. To enable them to be properly before the court they then filed the instant application where they seek the court to condone their late filing of their appeal and also to be granted an extension of time within which to file the appeal.

The employer is opposed to condonation relief citing mainly the fact that their matter does not have good prospects.	At the onset of the proceedings issues arose around the miscitation of the employer. The court enquired from the parties whether they intended to pursue the point yet it was not dispositive of the matter. The parties took the court’s guidance and eventually the employer dropped the point in limine vis citation. Parties consequently agreed that the point be dropped and be substituted by an amendment of the pleadings to reflect the correct respondent as Star Africa Corporation Limited only without the reference to (Pvt).

The point in limine having been dropped, the parties proceeded to address the court on the merits of the condonation application. The test for condonation is settled. See Jansen v Acavalos 1993(1) ZLR 216(S).

Each of the condonation tenets is discussed below.

Excuse and extent of delay.

The applicants say the arbitral decision was made in August 2024. On account of their self- acting status, they say they bungled the appeal process resulting in them having their matter struck off and them having to make a condonation application which they bungled again and later filed the instant application. It is clear that judging from the date of the arbitral decision even to the date of the hearing of the instant application the delay is not inordinate. The self- acting excuse is also acceptable BUT, it is settled that the condonation test is cumulative. In as much as the excuse is reasonable the critical question is Do the parties have anything meaningful in the appeal which can detain the court on appeal? This takes us to the prospects tenet.

Prospects

The applicants say they have a plausible case that can detain the court on appeal. They say it is so because in their view the retrenchment process was flawed. They say there was no

meaningful engagement between the employer and them before it paid them off. They say the retrenchment documents were not an intention to retrench but merely letters confirming the employer’s decision on the issue. They say the employer never tried to adopt measures to avoid retrenchment as set out in section 12 (d), of the Labour Act. They state further that the employer just deposited money in their accounts despite the fact that the employer know that they were challenging the retrenchment process. They state also that the employer withheld its banking details resulting in them using up the money.

On the other hand, the employer was adamant that the applicants were casual in their presentation of their appeal. It hastened to mention that even on the date of the striking off order the 2nd applicant was in default yet he in the instant applicant did not even bother to explain that aspect.

As already observed, very little turns on the excuse. Yes the 2nd applicant could have explained his default but that did not detract from the fact that the appeal was improperly before the court. As has already been stated the applicants can pass the test of the excuse but have serious problems with the prospects tenets. This is so because it is settled that where one conducts themselves in a matter consistent with one’s abandonment of own rights the principle of waiver would operate against him. See Chidziva v ZISCO Steel 1999(2) ZLR368(S).

In the case at hand, it is clear that the applicants with full knowledge utilised the money deposited into their accounts. They cannot now turn round to say that they did not want that money. The excuse about the bank accounts is not sufficient to justify the use of the money. In any event if they genuinely wanted to use that money on a without prejudice basis nothing stopped them from telling that to the employer. It is apparent that the applicants decided to ask for money after utilising what the employer had deposited in their accounts. To that extent they blew hot and cold. Such conduct makes their case very porous.

A reading of the record shows that once when they were represented by Mbidzo Muchadehama and Makoni they expressed the view that they wanted to tender the money. It just ended with the intention and they acted in the opposite by utilising the money. The employer also observed that the package was broken down in the documents used before the arbitrator so the argument that it was not correctly computed is a non issue.

It hastened to mention that retrenchment at the time in question was between employer and employee without requiring validation from the retrenchment board as is required now. See Labour Retrenchment Regulations SI 191/24.

The critical question on appeal is whether the trier of fact decision can be said to be grossly unreasonable. See Hama v NRZ 1996(1 ZLR664(S). It is clear from the intended appeal grounds that the appeal is quite porous if regard is had to the waiver principle. In any event a challenge of the process of retrenchment is an issue for review not appeal so the intended appeal is not something which the appeal court can be detained by. The prospects tenet therefore fails.

The rest of the tenets, that is importance of the case, convenience of the court and finality to litigation are all offshoots of the 2 main principles discussed above. It is not in doubt that the case is important to both parties for closure purposes but as stated the intended appeal is so porous if regard is had to waiver. It would be inconvenient for the court to grant condonation in a porous appeal. Finality to litigation tenets. See Lunat v Patel SC47/22. When the applicants utilised the package, the employer took it that parties could now move on so there is no finality that can be spoken about by granting condonation in a weak appeal case.

In the ultimate the application is without merit. It should therefore fail as it did as set out in the order of 26 February 2025.

Saunyama Dondo Legal Practitioners, Applicant’s Legal Practitioners

Mawere Sibanda Commercial Lawyers, Respondent’s Legal Practitioners