Chikomba Rural District Council v Kenneth Mundopa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 22 SEPTEMBER, 2025
JUDGMENT NO. LC/H/418/25
CASE NO. R-LC/H/811/22
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 22 SEPTEMBER, 2025

AND 28 OCTOBER, 2025

JUDGMENT NO. LC/H/418/25

CASE NO.	R-LC/H/811/22

In the matter between:-

CHIKOMBA RURAL DISTRICT COUNCIL	APPELLANT AND

KENNETH MUNDOPA	RESPONDENT

Before the Honourable Kachambwa J

For the Appellant:	H. Mutasa

For the Respondent:	L. Ndoro

KACHAMBWA, J:

The Appeal

This is a matter that is coming back to the court as a remittal from the Supreme Court. The appeal came before this court and the court did not decide on the issue of repudiation of the contract of employment. The court had said that this was an issue that was not before the arbitrator and therefore could not be placed before the court. However the Supreme Court ruled that:

“34. The legal issues the appellant intends to raise are of paramount importance forming the gravamen of the parties’ contractual dispute. Repudiation of one’s contract of employment is a unilateral act akin to resignation. It needs no action on the part of the employer to validate it……………………………

The court aquo therefore misdirected itself and strayed into error when it shield away from invoking the provisions of S89(2)(G)(i) to determine the burning issue of repudiation raised by the appellant albeit belatedly……………………………………………………….

35.  Having come to the conclusion that the court aquo misdirected itself in not hearing the matter afresh in order to do justice as prescribed by law, it is necessary to invoke the court’s review powers under S25 of the Supreme Court Act and remit the matter for a hearing de novo by the court aquo”.

When the parties appeared on the remittal they agreed between themselves that the only issue that they wanted to be adjudicated on was that of repudiation of the employment contract by the employee. The parties proceeded to address on that issue. That made the hearing much curtailed.

The Background

The background to this issue is best taken from the very Supreme Court judgment. On page 1 of the judgment the relevant paragraphs read:-

“2. The appellant is a Rural District Council. It runs several clinics and hospitals in Chikomba District manned by nurses. The Respondent was one of them (the nurses). He was employed in 2003. The parties had a written contract of employment.

The Respondent was originally stationed at Wilshire Clinic in Chivhu as the Nurse In Charge. In 2007 he was transferred to Chivhu General

Hospital as a disciplinary measure for absence from duty without cause for a prolonged period on one and half years from 24 October 2008 to 20 May 2010	”

………………………………...

It is common cause that the respondent left his post at Chivhu General Hospital to attend an Inter Hospital Sports Gala in Mutoko only to pitch up at work one and a half years later sometime in March 2020 complaining of non-payment of his salary…	”

Concerning his absence for the one and a half years the Respondent said that:-

“Things were tough in 2008 and I was to look for alternative employment. Therefore came the industrial action by nurses countrywide. I was at home in Rusape and failed to raise the bus fare up to February 2009. I reported for duty at Council offices and was informed by Mr Chandiwana E O Health that I was no longer their employee. I informed him about the amnesty offered to health workers and he referred me to the DNO at Chivhu Hospital. I gad accrued 90 days’ vacation leave days so I filled in forms and left them at the EO’s office. My salary had now been ceased so I approached the DNO at Sadza Hospital for the assessment hearing which was later changed to take place at Chivhu Hospital as advised by the DNO”. (my underlining)

Basically those are the relevant facts for the repudiation of contract.

Submissions By The Parties

Mr Mutasa for the appellant reiterated the point made by the Supreme Court that repudiation did not need validation by the employer. He said that the Respondent had repudiated the contract of employment by his failure to report for duty for over 18 months. He further said that this absence was a fact that had been established by the Supreme Court. The fact that the respondent said that he looked for alternative employment was said to have sealed his fate.

Looking for alternative employment was said to be enough evidence of repudiation.

On the contrary, Mr Ndoro for the respondent said that the appellant could not raise the issue of repudiation now because it had accepted the respondent on his return. It had taken the view that he was supposed to follow the proper procedure for going on leave. The respondent raised the principle of peremption, that where there is a choice between two options taking one means that one cannot thereafter come back and take the other option. He argued that the decision to charge him for his absence instead of taking him as one who had repudiated his contract forbid the appellant from raising the issue of repudiation. The appellant was therefore considered to have regarded the respondent as its employee. The appellant did not agree with this view as it argued that even the assessment for readmission showed that the respondent was out of the system and wanted to come back. Further the appellant had insisted that the respondent was no longer their employee as he had repudiated his employment contract by the prolonged absence from work.

Issues For Determination

There are two issues for determination. The first one is whether the appellant is estopped to raise repudiation. In other words had the appellant elected to accept the respondent as its employee and therefore could not change that position?. If appellant is not estopped the second issue is whether the respondent had repudiated his contract of employment. The respondent did not address on the second issue. In legal terms he had conceded the point. That which is not denied is taken as admitted.

The Law

The doctrine of peremption in its simple terms states that where a party has two choices on an issue the choice of one excludes a return to the other. It is the same as saying that a party cannot blow both hot and cold. The doctrine has been applied mainly in connection with judgments where parties have been stopped from apparently complying with a ruling while at the same time seeking to appeal. See Mungati and Another v Baureni HH 118/2024. There must be a clear election on one choice. This choice is mostly by action. In S v Marutsi 1990(2) ZLR 370 SC the court said that:-

“It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He can only do one or the other, not both”.

Repudiation of contract is the same as cancellation of contract. This occurs when a party shows by omission or commission in his/her conduct that he/she no longer wants to be bound by the contract duly entered into by the parties. Contracts are meant to be complied within “pacta sunt serva da”. Thus in employment the expectation is that each party will uphold its side of the bargain. The conduct must be clear in the mind of a reasonable person that the other party no longer intends to be held to the contract. There must be intention on the reneging party such that it must not be an error though error of law seems to be discounted here. The most common situation in employment is where an employee who is on suspension takes up a job elsewhere thereby making himself/herself unavailable to the other employer. The Supreme Court in Tel-One (Pvt) Ltd v Kuyumani Zulu remarked that:-

“Firstly, the Tribunal failed to appreciate the distinction between an employee who is on suspension and an employee who has been dismissed, whether unlawfully or lawfully, and the different legal obligations pertaining to the different employees. An employee who is on suspension is under a legal obligation to avail himself for duty to his employer during the period of suspension and that if such employee takes employment during the period of suspension, he repudiates his

contract of employment. See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988(1) ZLR 143 (S)”.

Applying The Law To The Facts

On peremption the facts do not show that the appellant had opted to accept the respondent back. The facts are consistent with the appellant wanting the respondent out of sight. He was never taken back. The appellant is seen trying to get the respondent dismissed for having absented himself. The confusion seemed to be arising from the fact that the respondent was being paid from state coffers. The respondent indeed tried to take advantage of the situation including the so-called amnesty. There is no intention to take back the respondent at all. Therefore this issue of peremption does not apply.

Coming to repudiation we cannot do any better than go to the respondent’s own words where he says that the situation was tough in 2008 and he went to look for alternative employment. His intention is as clear as daylight. This explains why it was not denied that he had repudiated the contract. It also explains why the defence of peremption was raised. It will be observed that the respondent was not coming to work for over one and a half years. He only came when his salary was stopped. This was a ghost worker. He probably took advantage of his dual reporting system otherwise how does one explain how one can be paid salaries for one and a half years when he is not reporting for duty?.

We do not lose sight of the fact that the respondent at one stage tried to blame his failure to report for duty to lack of funds. One wonders whether it can really be said that the money that he got for one and a half years without him reporting for duty was not adequate to enable him to get back to the office!. In any case that excuse is not acceptable at law.

The respondent’s repudiation of his employment contract is as clear as daylight. It is legendary. One and a half years away plus looking for alternative employment can only be consistent with an intention not to be held to the contract.

Disposition

In the circumstances the claim by the respondent to be still an employee of the appellant does not hold. He had repudiated his contract of employment. Accordingly the respondent cannot challenge the termination of his contract because he terminated it himself.

It is therefore ordered that:-

The appeal be and is hereby upheld with costs.

The Arbitrator’s ruling be and is hereby set aside and replaced as follows:-

“The Claimant’s claim be and is hereby dismissed with costs”.