Innocent Chiunga v AFC Commercial Bank Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/120/2025
HARARE, 13 MARCH 2025 AND
18 MARCH 2025
CASE NO LC/H/64/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/120/2025

HARARE, 13 MARCH 2025 AND

18 MARCH 2025	CASE NO LC/H/64/25

INNOCENT CHIUNGA	APPLICANT

AFC COMMERCIAL BANK LIMITED	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	T. Nyamidzi, Attorney

For Respondent	A. Moyo, Attorney

MUSARIRI, J:

Applicant applied to this Court for leave to appeal this Court’s judgement referenced LCH 509/24 to the Supreme Court. The application was made in terms of Section 92F of the Labour Act Chapter 28:01 as read with Rule 43 of the Labour Court Rules, 2017. Respondent opposed the application.

The material facts which are common cause, are as follows,

In 2006 applicant filed an appeal referenced LCH 326/06 in this court wherein the parties were cited as “Innocent Chiunga v Agriculture Development Bank.”

On the 27th May 2008 the Court issued a judgment which upheld the appeal and ordered Agriculture Development Bank to reinstate applicant or pay him damages in lieu of reinstatement.

3.(a) In 2024 applicant filed an application referenced LCH 867/24 for condonation of a late application for alteration of judgement.

(b) The parties were cited as “Innocent Chiunga v AFC Commercial Bank Limited.”

On the 20th December 2024 the Court issued a judgement which dismissed the application for condonation.

On the 24th January 2025 applicant filed the present application for leave to appeal to the Supreme Court. ‘

In his heads of argument applicant argued that

“4. The Applicant is aggrieved by the decision of this Court and seeks to have it set aside by the Supreme Court on the grounds that:

The court a quo grossly erred in law and misdirected itself by dismissing the application for condonation without due consideration of the legal principles governing applications

of this nature.

In failing to consider the requirement of an application for condonation, the court a quo grossly erred and misdirected itself in holding that the order granted under case number LCH 34/2009 and the proceedings emanating therefrom were null and void ab initio, thereby determining an issue that was not placed before it, for adjudication consideration.

The first intended ground of appeal seeks to impugn the findings of this Honourable Court without making reference to the principles of condonation. This ground can be adequately addressed by making reference to the legal principles guiding applications for condonation. This is purely a question of law which calls upon the court to consider set legal principles relating to condonation. This ground of appeal therefore raises a question of law as the principles relating to condonation have been authoritatively used in answering questions of this nature.

The second ground impugns the finding of the court that the order granted under LCH 34/2009 and the proceedings emanating thereafter were null and void ab initio. The Applicant submits that this ground raises points of law as it challenges the court’s findings and interpretation of the law relating to citation of parties and its effects thereof. No evidence can be led to answer this question. Only trite principles of law can address this ground.

10	The Applicant thus submits that the intended grounds of appeal raise questions of law and therefore fall within the ambit of the dictates of section 92 F of the Labour Act.

11. The Applicant further states that its intended grounds of appeal enjoy prospects of success.”

The Court’s judgement which applicant seeks to appeal essentially found that the Court’s judgement LCH 34/2009 is a nullity because in the underlying proceedings applicant cited Agriculture Development Bank, a legal non-entity, instead of his employer the respondent (AFC Commercial Bank Limited).  Respondent accepts he cited the wrong entity hence his application to alter the judgement to cite the ‘correct’ employer. However as the Court pointed out that is not possible because legal proceedings which cite a non-entity are null and void ab initio

as per the Gariya Safaris v Van Wyk case cited in the judgement. The position is further elaborated in the cases cited by respondent in its heads of argument thus,

“13 …The subsequent action of the Applicant of seeking to have the judgement altered on the basis of its own failure to properly cite the respondent is the kind of abuse of court process which Hlatswayo JA had occasion to remark about in the case of Mudzengi v Hungwe 2001(2) ZLR 175, 182 D, I found this to be a rather startling and unusual objection, coming as it did from a party that had cited the Respondents in the first place as having the necessary locus standi, to defend the application. Surely, an applicant who cities a party lacking in legal authority

cannot rely on that incapacity to have that matter resolved in his favour. Rather, if the applicant knowingly cites a party lacking in locus standi, then the matter will not be properly before the court and it must be dismissed with costs on a higher scale.’

Similarly, the court in Marange v Core Mining SC 37 OF 2016, aptly held that a party cannot subsequently benefit from their wrong of citing a wrong party.”

It is clear from all cases cited above that where the respondent cited is a legal non-entity the ensuing proceedings including the judgement are null and void. There being no valid judgement to be altered, the application for condonation was an exercise in futility. By extension the present application for leave to appeal fails for lacks prospects of success on appeal..

Wherefore it is ordered that

The application for leave to appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E