Pfungwa Dhliwayo v Kingland Real Estate

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
JUDGMENT No: LC/H/419/25
CASE No: LC/H/732/25
In the matter between: -
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT No: LC/H/419/25

CASE No:	LC/H/732/25

In the matter between: -

PFUNGWA DHLIWAYO	APPELLANT

AND

KINGLAND REAL ESTATE		RESPONDENT JUDGMENT

Before the Honourable Mr Justice Jaravani J Harare, 01 October 2025.

For the Appellant: Mr T. Humbarume- Zimbabwe Industrial Revolution Workers Federation For the Respondent: In default

JARAVANI J:

Unopposed Appeal against the determination of a Designated Agent. BACKGROUND

The Appellant was employed by the Respondent as a Stores Controller. He was suspended from employment by the Respondent on 06 January 2021 pending investigations for misconduct. Neither an investigation nor a disciplinary hearing materialised pursuant to the Appellant’s suspension from employment. The Appellant then made a complaint of unlawful suspension resulting in several proceedings before Designated Agents, (hereinafter ‘DA’), of the National Employment Council for the Commercial Sectors in Zimbabwe (hereinafter ‘NEC’). It also later emerged from further papers that were filed by the Appellant after the hearing that the parties once brought their dispute before this Court in Case No: LCH 1141/24 whereafter this Court made a default judgment against the Respondent remitting the matter for hearing before another DA of the NEC. The appellant then appealed to this Court against the most recent determination of the DA dated 20 June 2025.

The Respondent neither opposed the appeal nor attended the court session despite proper service of the notice of appeal. The appeal was heard physically in open Court on 01 October 2025. The Appellant’s representative applied for default judgment which could not be granted by the Court despite the matter being unopposed because the Court had legal issues arising from the Appellant’s papers which it needed to be addressed on before judgment. The Court was of the view that it was proper for it to proceed to determine this matter in terms of Rule 29(b) (ii) of the Labour Court Rules, 2017 (hereinafter, ‘the Rules’) despite the Respondent’s default.

ISSUES RAISED BY THE COURT AND APPELLANT’S RESPONSES

The Court raised two issues that arose from the Appellant’s consolidated record before the

Appellant filed further papers, namely: -

Prescription, and

Prayer for reinstatement without an alternative for damages in the Appellant’s draft

order at page 3 of the consolidated record.

In respect of prescription the Court brought it to the attention of the Appellant that section 94 of the Labour Act [Chapter 28:01] (hereinafter, the Act) provides for a prescription period of two years from the date when the dispute or unfair labour practice first arose. The Appellant alleged that he was unlawfully suspended on 06 January 2021 but he could not disclose the date when he made his first complaint to the DA. He submitted that the Collective Bargaining Agreement for the Commercial Sectors in Zimbabwe SI 45 of 1993 (hereinafter ‘CBA’) provides that he was entitled to a decision within 14 days of his suspension- see Clauses 4.2 as read with 4.7 of Part II of the 5th Schedule to the CBA. This implies that the unlawfulness of the Appellant’s suspension could only be actionable after the expiry of a period of 14 days from the date of suspension without an investigation and a decision by the Respondent. The Court gave the Appellant an opportunity to file his complaint letter to the DA to enable it to calculate the prescription period and it reserved judgment to enable the Appellant to do so within a stipulated period. The Appellant then filed his complaint letter to the DA which showed that he made his complaint to the DA on 10 April 2024 and he further filed a default judgment granted in his favour by this Court in Case No:1141/24 which remitted the parties’ dispute for hearing before a different arbitrator.

In respect of a prayer for reinstatement without an alternative for damages, the Court brought it to the Appellant’s attention that such a prayer was clearly an invitation to the Court to grant incompetent relief and the Court referred the Appellant to the cases of Mandiringa and Others v NSSA 2005 (2) ZLR 329(H) and ZIMRA v Chadzima 2020(1) ZLR 608(S). The Appellant suggested that the Court may grant an Order in terms of the Draft as amended in response to this issue.

GROUNDS OF APPEAL AND APPELLANT’S ADDRESS ON THE MERITS.

The Appellant’s appeal was based on a single ground of appeal namely that: -

‘The designated agent erred to determine that appellant failed to prove that he was suspended whereas appellant attached proof on its statement of claim.’- page 3 of the consolidated record.

The Appellant further prayed for relief in the following terms: -

‘1. The appeal be granted with costs.

That the determination issued by Mr C Mabika be set aside

That the Appellant be reinstated to his former position without loss of salary and

benefits.’

The Appellant contested the DA’s finding that he failed to prove that he was suspended by the Respondent in a situation where the Appellant attached his letter of suspension to his statement of claim. He submitted that the letter of suspension is filed of record, (page 11 of the consolidated record). He therefore prayed for the setting aside of the DA’s determination.

The Appellant also prayed for costs against the Respondent on the basis that it ignored most of the Appellant’s complaints and formal claims and it never attended any court proceedings despite service of process.

ISSUES FOR DETERMINATION

The issues for determination are the issues raised by the Court namely: -

Whether the Appellant’s claim is prescribed?

Whether the Appellant’s prayer for reinstatement without an alternative for damages can

be remedied through relief in terms of the Draft Order as amended

And on the merits, the single Ground of Appeal raises the issue whether the Appellant managed to prove that he was suspended by the Respondent?

ANALYSIS

Prescription

The issue of prescription lost relevance when the default judgment which was obtained by the Appellant against the Respondent in Case No: LCH 1141/24 of this Court was filed of record on 03 October 2025. Upon sight of the default judgment in Case No: LCH 1141/24 of this Court, the Court requested for the consolidated record for Case No: LCH 1141/24 to be filed of record and this was done on 07 October 2025. The record for Case No: LCH 1141/24 indicates that there were other previous proceedings between the present parties before another DA on the same dispute in the present case which was disposed of on a technical point against the Appellant by the DA Mr

B. Hwachi. In Case No LCH 1141/24 this Court then remitted the parties’ dispute for hearing before another arbitrator which resulted in the proceedings before the DA Mr C Mabika which are the subject- matter of the present appeal. All these previous proceedings, except those subject to the present appeal, were not disclosed by the Appellant in his present appeal before the Court raised the issue of prescription. The record for Case No: LCH 1141/24 indicates that the Appellant used the same representatives in the previous proceedings so the Appellant and his representatives were aware of the previous proceedings but they never disclosed them to the Court contrary to the duty imposed on them by section 124(1) of the Labour Act. The issue of prescription therefore does not and could not have arisen in view of the previous proceedings which came to the knowledge of the Court after the hearing. The DA’s determination which is subject to the present appeal was heard on remittal from this Court in Case No: LCH 1141/24 so the previous claims and proceedings by the Appellant rendered the issue of prescription irrelevant.

Prayer for reinstatement without an alternative for payment of damages in lieu of reinstatement.

Both section 89(2)(c)(iii) of the Labour Act and caselaw require this Court to provide for an alternative of damages in lieu of reinstatement when making Orders for reinstatement. The Court may therefore grant the Appellant’s prayer in his draft order as amended to comply with the requirements of the law since the draft order is not a Court Order but a mere draft.

Merits- Whether the Appellant managed to prove his suspension by the Respondent.

The DA found in his determination that there was no evidence tendered to prove that the Appellant was suspended since the Appellant did not attach a copy of the suspension letter-(page 7 of the record). This finding was a gross misdirection which is irrational in view of the Appellant’s uncontroverted submission that he attached the suspension letter to his statement of claim. The suspension letter is also filed of record at page 11 of the consolidated record. The suspension letter is on a letterhead which bears the Respondent’s name on its upper part and the Respondent’s contacts on its lower part. Such Respondent’s contacts were also cited by the Appellant in his follow-up letter to the Respondent on the suspension dated 09 January 2024. The follow-up letter has a signed acknowledgement of receipt on its lower part by Mrs Kufakwedeke, presumably, on behalf of the Respondent. It was irrational for the DA to make a determination that there was no evidence of the Appellant’s suspension in view of the suspension letter that was filed by the Appellant of record.

Costs

The Appellant prayed for an Order for costs against the Respondent. He alleged that an Order for costs should be made against the Respondent because it ignored the Appellant’s claims and never attended both the arbitration proceedings and proceedings before this Court despite service. The Respondent exhibited a contemptuous attitude towards both this Court and the Designated Agents by neither attending the hearings nor disclosing its attitude towards the claims. The Court therefore is of the view that an Order for costs against the Respondent in the present proceedings is legally justified.

DISPOSITION

After reading the documents filed of record, including the record for Case No: LCH 1141/24 of this Court and further documents which were subsequently tendered upon the Court’s request, and hearing the Appellant, it is Ordered that: -

The Appeal is hereby allowed with costs.

The determination by the Designated Agent Mr C Mabika is hereby set aside and substituted with the determination that; -

‘The Claimant was unlawfully suspended by the Respondent.’

The Respondent shall reinstate the Appellant to his job without loss of salary and benefits and if reinstatement is no longer tenable, the Respondent shall pay damages in lieu of reinstatement to the Appellant and the quantum of such damages may be agreed between the parties. Upon failure to agree on the quantum of damages by the parties, either party may approach this Court for quantification of such damages.

Appellant’s Representatives: Zimbabwe Industrial Revolution Workers’ Federation

Respondent In Default.