Saviour Muvhirimi v Tobacco Industry and Marketing Board

### Preamble
JUDGMENT NO.
IN THE LABOUR COURT OF ZIMBABWE LC/H/96/23
RD
HELD AT HARARE ON 23 NOVEMBER, 2022
CASE NO. LC/H/726/22
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE ON 23RD NOVEMBER,
2022
AND 30 MARCH, 2023

In the matter between:-

SAVIOUR MUVIRIMI
AND
TOBACCO INDUSTRY AND MARKETING BOARD

APPLICANT
RESPONDENT

Before the Honourable Makamure, J.

For the Applicant : Ms T. V. Chipandu (Legal Practitioner)
For the : Mr G. M. Nyangwa (Legal Practitioner)
Respondent

MAKAMURE J.

Introduction

This is an application for review.

Before the application could be argued preliminary issues were taken on behalf of the respondent. It is trite that where preliminary issues have been raised, they must be resolved before the main matter is heard. It is possible that a meritable preliminary issue can dispose of the matter and therefore obviate the need to hear the merits. See Telecom Zimbabwe (Pvt) Ltd v Postal & Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) & 3 Others HH446/15.

Preliminary Issues


Two preliminary issues were raised on behalf of the respondent. These are:
 (i) that there is no cause of action.

(ii) estoppel – that the applicant waived his rights when he received a package from the employer following retrenchment and as such he is estoppled from challenging the retrenchment process.

The grounds for review are:

“1. That the Respondent retrenched the Applicant unprocedurally.

2. That the Respondent made a decision to retrench on unreasonable grounds, that are capricious, illegal and malicious. The decision ought to be set aside on grounds of unreasonableness.

3. That the Respondent made a decision to retrench without consulting the Applicant against the principle of audi alterum”.

In support of the preliminary issues it was argued on behalf of the respondent with respect to the first preliminary point, that the retrenchment process was properly done. It was further argued that the allegations to the effect that the retrenchment was done unprocedurally were not sufficient. The applicant, argued the respondent, failed to articulate what was not procedural. The failure to articulate what was not procedural, the argument continued, means that the applicant has failed to disclose a cause of action. In view of the failure to point out exactly what was unprocedural, it was submitted on behalf of the respondent that for this reason the preliminary issue ought to be upheld.

With respect to the second preliminary issue, it was argued on behalf of the respondent that following the retrenchment exercise, the applicant was paid a package which he accepted. In view of that acceptance it was submitted that the applicant can now not challenge the retrenchment exercise. He is estopped from doing so.

The case of Vundla vs Innscor SC 14/22 is one of the authorities cited in support of the respondent’s submissions on estoppel.
 In response Mr Chipandu who appeared on behalf of the applicant argued that paragraph 8C of the founding affidavit established the basis upon which the applicant approached this Court. It was argued that the applicant was retrenched before he could appeal the decision which the employer had made against him in dismissing a grievance he (the applicant) had raised. In other words, had the respondent not retrenched him, the applicant could have had a chance to appeal against the grievance outcome to the Labour Court. In that sense therefore the retrenchment process was prematurely done.

On the question of waiver and the averrement that the applicant is estopped from challenging the decision to retrench him, it was argued that there was no evidence of waiver. According to the applicant, he received the retrenchment package on 12 August 2022 and on 15 August 2022 he initiated the application for review. It was argued that this conduct on his part was proof that the applicant did not accept the decision to retrench him.

It was further argued on behalf of the applicant that the act of receiving the package cannot be viewed in isolation. It was further argued that respondent failed to comply with provisions of sections 12C & 12D of the Act. This, it was submitted, rendered the retrenchment process a nullity. For these reasons it was submitted on behalf of the applicant that there was before the Court a proper case for review.

The cases of Chidziva and Others v Zisco 1997 (2) ZLR 368 @ 379 and Stanbic Bank v Charamba 2006 (1) ZLR 96 were some of the authorities cited on behalf of the applicant in support of the submissions.

In response Mr Nyangwa argued that paragraphs 3-6 of the founding affidavit do not form part of the grounds for review. As such the argument continued, the grounds for review on their own do not put the respondent in a position to know the infractions that it committed. On the question of the time within which it took the applicant to apply for review, Mr Nyangwa submitted that that question is neither here nor there. In any event Mr Nyangwa continued, the applicant has not refunded the amount that he received from the respondent.
 ANALYSIS

When one considers the preliminary issues, it is clear that the grounds for review are supplemented by the founding affidavit which referred to annexures. In other words the founding affidavit itself did not fully articulate the issues for review.

It is a trite position in this jurisdiction that the founding affidavit must say all that a case is based on. It is also trite that grounds for review must put the other side in a position to know the case that they are facing.

In Alfred Muchini vs Adams and Four Others SC 47/13 it was held that:

It is trite that an application stands or falls on the averments made in the founding affidavit. See Herbstein & van Winsen the Civil Practice of the Superior Courts in South Africa 3rd ed p 80 where the authors state:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out,”

However while this is the standard position, there are always exceptions in deserving cases which may cause a court to condone failure to abide by the acceptable standard.

In Collen v Reitfontein Engineering Works 1948 (1) SA 413 at 433 Centlivres JA referred to an issue not raised in the pleadings but fully canvassed at the trial in the following words:

“But in this case, where the contractual relationship between the parties arose partly through the interchange of letters and partly through their conduct, all the material letters (...) were produced in evidence and the conduct of the parties was examined in viva voce evidence. This Court, therefore, has before it all the materials on which it is able to form an opinion, and this being the position it would be idle for it not to determine the real issue which emerged during the course of the trial”.


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The present case is not the main matter. The Court is considering preliminary issues. The preliminary issues must be determined in their own right, therefore the principles guiding the determination of any hearing apply. Thus where the founding affidavit related to for example an application for review, the case would ‘stand or fall’ on its founding affidavit. This applies with full force in with respect to the preliminary issues under consideration. The grounds for review have been canvassed in the pleadings. I think that this is one circumstance in which the pleadings cannot be ignored especially in view of the fact that these were referred to in the founding affidavit. For that reason, it is my considered view that the issues that arise from the pleadings cannot be ignored. The applicant has in the founding affidavit made reference to certain annexures. This is not the ideal situation. Ideally the relevant portions of those annexures ought to have been incorporated into the affidavit so that one does not go back and forth in an effort to appreciate what the applicant is saying. I am however of the view that it is equitable under the circumstances, to accept the affidavit together with the annexures. This will therefore explain the grounds for review. I therefore find that there is no merit in the first preliminary issue.

Since I have found no merit in the first preliminary issue, it is dismissed. The second preliminary issue deals with the question of whether or not the receipt of the retrenchment package constitutes waiver.

In the case of Chidziwa (above) the Court at page 379 stated as follows:

‘In the present case, there is no special allegation of waiver in the respondent’s affidavit. The allegation is only hinted at in para 3(3) of Moyo’s affidavit where it is alleged that the appellants accepted the retrenchment packages and are therefore no longer entitled to relief. It is also raised in counsel’s heads of argument and submissions as was the case in Dale v Fun Furs (Pty) Ltd supra. This in my view is not satisfactory. The respondent’s main contention throughout was that it had complied with the provisions of the said Regulations. Secondly, there is a strong presumption against the waiver and the onus of proof is upon the party asserting it. See Hepner v Roodepoort Maraisburg Town Council 1962 (4) SA 772 (A) where Steyn CJ said at 778D-F: —There is authority for the view that in the case of waiver by conduct, the conduct must leave no reasonable doubt as to the intention of surrendering the right in issue


(Smith v Womberg (1895) 12 (S) 295 at 304; Victoria Falls & Transvaal Power Co
 Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 at p 62) but in Martins v de Kock 1948 (2) SA 719 (A) at p 733 this court indicated that that view may possibly require reconsideration. It sets, I think, a higher standard than that adopted in Laws v Rutherford 1924 AD 261 at 263, where Innes CJ says: „The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it.“ Page 379 of 1997 (2) ZLR 368 (S) This accords with the test applied in City of Cape Town v Kenny 1934 AD 543 and was followed in Collen v Reitfontein Engineering Works 1948 (1) SA 413 (AD) at p 436 and Linton v Croser 1952 (3) SA 685 (A) at p 695. (cf Ellis & Ors v Laubscher 1956 (4) SA 692 (A) at p 702). In my opinion, the test is more correctly stated in these cases‖ (the emphasis is mine). In the present case, no real attempt was made to show that the appellants abandoned their rights with full knowledge of those rights. All that was submitted was that the appellants accepted the retrenchment packages. The respondent should have gone further to show that they did this with full knowledge that they were abandoning their rights. On this I also cite with approval the passages at p 489 of Christie’s above cited book where the learned author said: — … there is ample other authority that it must be clearly proved that the person who is alleged to have waived his rights knew what those rights were. A party who fails to prove this necessary ingredient of waiver may still be able to raise the defence of estoppel against any attempt to enforce the rights in question. When it cannot be proved that the party alleged to have waived knew what his rights were it may appear that his ignorance is properly classified as ignorance of law. ‘( Emphasis added).

In the case of Crispen Vundla & Another v InnsCor Africa Bread Company Zimbabwe (Private) Limited & Another SC14/22 the Supreme Court stated that:

‘A voluntary acceptance of a terminal package is clearly knowingly made. It is also inconsistent with the continuation of an employment relationship.’ (Emphasis added).

In the present case the applicant received the package and three days later approached this Court. The fact that he approached this Court at his earliest convenience does not change the fact that he had already received the package. However, on record (Page 24) there is a letter dated 2\textsuperscript{nd} August 2022 from the applicant’s legal practitioners of record where he was challenging the retrenchment process. That is an indication that he was not in agreement with the retrenchment.


In response to this letter of protestation, on 3rd August 2022 the respondent’s legal practitioners among other things, stated as follows:

‘4.8 In the meantime, our client offers yours the package as set out below. May we have your client’s response to the package offered within forty eight hours failing which our Client will exercise the right to pay the minimum package as prescribed in terms of the law (as parties would be deemed to have failed to agree on a retrenchment package for the purposes of the Labour Act).’

The above proposal and the receipt of the package appear to me to have been part of ongoing discussions. Further where a retrenched employee receives a monetary package where the circumstances are not clear such receipt may not amount to acceptance of the retrenchment process and package (Chidziva, above). Paragraph 23.2 of the opposing affidavit (page 54 of the record) deposed to on behalf of the respondent by one Tsitsi Murahwa reads as follows:

‘The package was also paid after Applicant had evinced an intention to challenge the whole process and therefore there was a stalemate regarding the package,…’ (Emphasis added).

In the present case, considering the fact that the parties were engaged in discussions through their respective legal practitioners, the payment of the package to the applicant does not appear to have been a voluntary receipt of the same as envisaged in the Vundla case (above). Further, the record shows that the employer made payment of the package into the applicant’s bank account with the full knowledge that the applicant had indicated that he was challenging ‘the whole process’ or at least he “evinced an intention” to do so.

The impression that one gets is that payment of the package was done in order to stop the applicant from denying that he had received the package in question. As it turns out, the respondent is now asserting that the applicant is estopped from challenging the retrenchment process. It would be unfair for the respondent as the employer to benefit from a situation which it created. In Mushayi v Glens Corporation 1992(1)ZLR 162 the Court considered a case where a driver was involved in a road traffic accident following which he was dismissed from employment. The cause of the accident was that the said driver had been forced by
 7 the employer to drive without getting enough rest after a previous errand. The Court held that the employer could not benefit from a misconduct which it had induced. In the present case the respondent appears to have created the situation where the applicant could not deny having received the package. The applicant can therefore not be taken to have acquiesced himself with the conduct of the respondent. It must be borne in mind that where an employee has been forced into retrenchment, that experience can be unpleasant and the parties may be emotionally charged. Their conduct therefore must be viewed taking this factor into consideration. (See *Prosser and Others v ZISCO Ltd HH 201/1993*). Receipt of the package can therefore not be viewed in isolation. It would be unfair under the circumstances of this case to uphold the second preliminary point. In the result I find that there is no merit in the second preliminary issue. It must be dismissed.

It is accordingly ordered that the second preliminary issue be and is hereby dismissed.

Having dismissed both preliminary points, I will now consider merits of the application for review.

**MERITS**

This is an application for review. It is opposed. At the commencement of the hearing two preliminary issues were raised on behalf of the respondent. I have since dismissed those preliminary issues. The grounds for review are as indicated in the judgment on the preliminary issues.

**Background**

The facts of this matter are as follows (they are summarised well in the applicant’s Heads of Argument).

The applicant was employed by the Respondent in the capacity of ‘Head of Inspectorate’. While he was so employed the respondent employer embarked on a job evaluation exercise. The exercise was commenced on 14 June 2021. This exercise resulted in the position of Head of Inspectorate being abolished. The applicant however did not lose employment. His responsibilities remained unchanged. His conditions of employment and benefits were not changed. However his title changed to ‘Inspectorate Manager’. In principle the applicant was not in any way substantially affected by the job evaluation exercise.

Applicant was not happy with the change of title. Aggrieved by that change he lodged a grievance with his employer, the respondent, in terms of the applicable code of conduct. The respondent dismissed the grievance. Before the applicant could appeal against the dismissal of his grievance, the respondent retrenched him. It is this decision to retrench him which is the subject of the review application.

The **Labour Act, [Chapter 28:01]** (The Act) lays down the grounds on which a matter may be brought before this Court before this Court for review in its section 92EE as follows:

**‘92EE Grounds of review by Labour Court**

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

(a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned;

(c) gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.’

In the present matter, the applicant’s employment was terminated through retrenchment. The Act provides for retrenchment as follows:

‘12 Retrenchment and compensation for loss of employment on retrenchment or in terms of section 12(4a)

(1) An employer who wishes to retrench any one or more employees shall—

(a) give written notice of his or her intention—

(i) to the works council established for the undertaking; or

(ii) if there is no works council established for the undertaking or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; or
 (iii) if there is no works council or employment council for the undertaking concerned, to the Retrenchment Board, and in such event any reference in this section to the performance of functions by a works council or employment council shall be construed as a reference to the Retrenchment Board or a person appointed by the Board to perform such functions on its behalf;

and

(b) provide the works council, employment council or the Retrenchment Board, as the case may be, with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment; and

(c) send a copy of the notice to the Retrenchment Board.

(2) Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called “the minimum retrenchment package”) of not less than one month’s salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month’s salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to section 12(4a)(a), (b) or (c)), no later than date when the notice of termination of employment takes effect.

(3) Where an employer alleges financial incapacity and consequent inability to pay the minimum retrenchment package timeously or at all, the employer shall apply in writing to be exempted from paying the full minimum retrenchment package or any part of it to—

(a) the employment council established for the undertaking or industry; or

(b) if there is no employment council for the undertaking concerned, to the Retrenchment Board; which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted).

(4) In considering its response to a request for exemption in terms of subsection

(3) the employment council or Retrenchment Board—

(a) shall, where the employer alleges complete inability to pay the minimum retrenchment package, be entitled to demand and receive such proof as it considers requisite to satisfy itself that the employer is so unable, and if so unable on the date when the notice of termination of employment takes effect, may propose to the employer a scheme to pay the minimum retrenchment package by instalments over a period of time;

(b) shall, where the employer offers to pay the minimum retrenchment package by instalments over a period of time, consider whether the offer is a reasonable one, and may propose an alternative payment schedule;

(c) may inquire from the employer whether he or she has considered, or may wish to consider, specifically, or in general, the alternatives to termination of employment provided for in section 12D.’

Retrenchment as provided for is s12C of the Act makes reference to s12(4a) as an alternative to how an employer terminates an employee’s employment. It was the respondent’s position that it complied with provisions of the Act. This must mean that since it retrenched the applicant it complied with the provisions quoted above or alternatively it complied with provisions of s12(4a) of the Act. Evidence of this must be gleaned from communication between the parties part of which will quoted below and what has already been referred to earlier on.

A letter from the respondent’s legal practitioners dated 03rd August 2022 reads in part:

‘4. We have been instructed to respond to you in the following manner:

4.1. Our client denies flouting the cited provisions of the Labour Act i.e. sections
12C and 12D of the Act;
4.2 We are advised that your Client was on probation for the position of Head of Inspectorate. We advise that prior to the confirmation of your client as a full-time employee, our Client exercised its right which is provided for in terms of the law to determine the size and character of the workforce. The restructuring exercise resulted in the abolition of the Head of Inspectorate;
4.3 We are also advised that he was thereafter confirmed for the position of Inspectorate Manager as the position of Head of Inspectorate had been abolished;

I find the contents of sub-paragraph 4.2(above) particularly surprising. I say this in view of the contents of the respondent’s letter dated 26 January 2021(page 7 of the record) which was an offer for employment to the applicant and the subsequent confirmation of Applicant’s successful completion of the period of probation. I reproduce below, in part, what was stated in the offer letter.

‘Dear Mr Murvirmi
OFFER OF EMPLOYMENT AS HEAD OF INSPECTORATE
1.Following your application and subsequent interview for the above position, I have the pleasure of advising you of the offer of an appointment with TIMB in the capacity of Head of Inspectorate with effect from 1st of February 2021 based at TIMB Harare Offices. You will be reporting to the Chief Executive Officer on your day to day duties. …

3.You will initially serve a probationary three months period before being confirmed to the position. During probation notice to terminate the contract shall be two weeks from either party whereas after substantive confirmation three months’ notice either way will be applicable. ( Emphasis added). …

Consistent with paragraph (3) of the offer letter (above), on 08 June 2021 the respondent confirmed the applicant’s successful completion of the probation period. The confirmation letter stated that ‘You are appointed to the position of Inspectorate Manager…’ The appointment was with effect from 01 June 2021.This means that the
 1
1 applicant was confirmed to have successfully completed the probationary period before the job evaluation exercise started.

Given the above communication between the parties it is difficult to understand why in August 2022, there was a suggestion that when the job evaluation exercise was embarked on, which from the record commenced on 14 June 2021, the applicant was still on probation yet he was confirmed on 8th June 2021 (though effective from 1st June 2021).

As already noted, before the applicant was retrenched, he had raised a grievance with the respondent regarding his title being changed from Head of Inspectorate to Inspectorate Manager. The respondent dismissed the grievance. Before the applicant could appeal against the dismissal of his grievance, the respondent retrenched the applicant. It would appear that the process to retrench the applicant was done in rushed manner. If there was a provision for the applicant to appeal the decision to retrench him, he should have been given the opportunity to do so instead of putting him in a position where he was not able to exercise his rights. This does not interfere, and would not have interfered, with the employer’s right to retrench. It is the employer’s right and prerogative to retrench an employee or employees. What was only required in the present case was to ensure that applicant was fairly treated.

I will now consider whether or not the respondent complied with the provisions of the Act when it retrenched the applicant.

On 29 July 2022 the respondent notified the applicant of its intention to retrench him. The applicant approached his legal practitioners of record. On the 2nd of August 2022 the applicant’s legal practitioners wrote the respondent protesting about its intention to retrench the applicant. The respondent’s legal practitioners responded on the 3rd of August 2022. In that letter the respondent, among other things, made an offer to pay the applicant a retrenchment package and that respondent had to make a response to that communication within a period of forty-eight hours. There is no indication on record that the relevant employment council was notified.


In a minute dated 16 August 2022 the Ministry of Public Service, Labour and Social Welfare (the Ministry) confirmed the respondent’s retrenchment of the applicant. However, the record does not show any communication from the respondent to the Ministry advising the Ministry its intention to retrench the applicant. It is therefore not clear as to when the respondent advised the Ministry of its intention to retrench the applicant. Meanwhile at page 30 of the record appears a table of calculations. On that table the date of the applicant’s appointment is given as 1st February 2021 and the date of separation is given as 1 August 2022. What this shows is that by the time that the Ministry confirmed the retrenchment, the respondent had already ‘retrenched’ the applicant. This is also taking into account the stance which the respondent had adopted, that is, it required the applicant to respond to the intention to retrench him within forty-eight hours of it having advising him of the same. I am not so sure whether a period of forty – eight hours accommodated all the procedures laid down in s12(1) of the Act. Apart from the respondent’s mere say so, the record does not reflect this.

In **Prosser and Others v ZISCO Ltd HH201/93 (Prosser)** the High Court stated that:

> ‘I think as a starting point it must be stated that when dealing with matters like retrenchment it is of considerable importance that the relevant regulations should be carefully and clearly followed by the company seeking to retrench employees. The regulations lay down a precise procedure to be followed and it is important that that procedure is specifically followed. I say that especially in regard to retrenchment matters because retrenchment by any standard is a traumatic procedure… it is important that against such an emotionally traumatic climate that employers should simply follow the law.’

In the **Prosser case** (above) the High Court referred to regulations because at that time the Act had not been amended to its current position. However the principle is that the law must be followed when employers decide to retrench an employee or employees

**Conclusion**

From the above facts, the provisions of the Act were not followed.
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 The applicant was not informed of the process at every stage. The requisite notifications were not done. Since the retrenchment was not in terms of the law it means that the retrenchment was unlawful. What this means is that the retrenchment was irregular. Consequently the retrenchment is a nullity.

LORD DENNING stated in *MacFoy v United Africa Co Ltd* [1961] 3 All ER 1169 (PC) at 1172I:

> “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The Act provides for ‘gross irregularity’. In the present case the process was unlawful. One cannot therefore qualify the degree of the irregularity. However, it is trite that nothing lawful comes from an unlawful act. This means that the retrenchment is null and void. In the words of the celebrated jurist, Lord Denning MR (above) it is ‘incurably bad’.

In view of the above I find that there is merit in the application for review. The application succeeds. This means that the position of the applicant before the ‘retrenchment’ was done is restored. I am fortified in this regard by the Supreme Court case of *Zimbabwe United Bus Company v Beaular Mashinge SC 21/2021* where the Court stated as follows:

> ‘16. The broader and more readily acceptable position in my view is that the status quo ante of the parties is restored upon the setting aside of the irregular employment disciplinary proceedings also relates substantively to the contractual status of the parties. Put simply, it must be understood to mean broadly that upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored, without necessarily or by implication negating the remedies and procedures available to each of the parties to terminate the contract in terms of the agreed terms.

> ‘25. In the circumstances of this matter, the setting aside of the unlawful dismissal of the respondent restored her status as an employee of the appellant.’


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See also *Air Zimbabwe Corporation v Mlambo 1997(1) ZLR 220 (S); Paul Garwe v Public Service Commission SC62/17; Unfireight Limited v Lighton Madembo SC6/18*.

The present review application relates to retrenchment proceedings which this Court found to have been irregular and not to irregular disciplinary proceedings. However, at the end of the day the manner in which the proceedings were conducted was irregular. This led to the decision of the employer being set aside with the result that the position of the parties before the proceedings in question were conducted was restored.

It is in view of the foregoing that the application for review succeeds.

Accordingly, it is ordered that:

1. The Application for Review be and is hereby granted.

2. The retrenchment of the applicant by the respondent following respondent’s letter dated 29 July 2022 be and is hereby set aside.

3. The respondent be and is hereby ordered to reinstate the applicant to his post with no loss of salary or benefits with effect from the date of the unlawful retrenchment.

4. In the event that reinstatement is no longer possible the respondent be and is hereby ordered to award the applicant the appropriate amount of damages as agreed between the parties in lieu of reinstatement. Should parties fail to agree on the quantum of damages either party is free to approach this Court for quantification.

5. The respondent bears the costs of suit.


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| Name                          | Title                                                                 |
|-------------------------------|----------------------------------------------------------------------|
| Tafirei & Company             | - Applicant’s Legal Practitioners                                      |
| Mawere & Sibanda              | - Respondent’s Legal Practitioners                                      |
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