Limitless Incorporation (Private) Limited v Tonderai Bowora

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
JUDGMENT NO LC/H/423/25
CASE NO LC/H/489/25
22 JULY, 2025
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 22 JULY, 2025

JUDGMENT NO LC/H/423/25 CASE NO LC/H/489/25

AND

In the matter between: -

LIMITLESS INCORPORATION (PRIVATE) LIMITED	APPLICANT

And

TONDERAI BOWORA	RESPONDENT

Before Honorable Makamure J, Mzyece J and Jaravani J

MAKAMURE, J:

This is a court application for condonation for the late filing of an appeal and extension of time within which to file the appeal in terms of Rule 22 of the Labour Court Rules, 2017. The application is opposed. An order dismissing the application was made. The following are the reasons.

Right from the onset, it should be pointed out that the law regarding condonation for noncompliance with the rules is a well-trodden path in our jurisdiction. Some of the cases that have dealt with the requirements of such an application; see Forestry Commission v Moyo 1997 (1) ZLR 254 (S), Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S); Machaya v Munyambi SC 4/05; Ester Mzite v Damafalls Investments (Pvt) Ltd SC 21/18; FBC Bank v Chiwanza SC 31/17; Viking Woodwork (Private ) Limited v Blue Bells Enterprises (Private) Limited 1998 (2) ZLR 249; The list is not exhaustive.

These requirements were succinctly outlined in the case of Bessie Maheya v Independent Africa Church SC 58/07 at p.5, Malaba JA (as he then was) stated the following;

“The question for determination is whether the Applicant has shown a cause for reinstatement of the appeal. In considering the applications for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance, the explanation therefore; the prospects of success on appeal; the importance of the case, the Respondent’s interest in the finality of judgment, the convenience to the court and the avoidance of unnecessary delays in the administration of justice’’.

BACKGROUND FACTS

From the pleadings filed of record and the submissions made by counsels for both the applicant and respondent, the facts of the case are as follows;

The respondent was employed as a Logistics Manager by the applicant. On page 6 of the consolidated record, the applicant submitted that on 25 November 2024, the respondent registered a complaint for conciliation against the applicant for unfair dismissal and payment of salary arrears. It is also stated that the parties failed to reach an agreement as such, a certificate of no settlement was issued by the Labour Officer who referred the dispute for arbitration on 30 December 2025. On 25 April 2025 after hearing submissions and evidence from both parties, the arbitrator handed down an award in favour of the respondent as follows:

Damages in lieu of reinstatement in the sum of US$19,200.00

Arrear salaries in the sum of US$20,080.00

Aggrieved by this, the applicant decided to appeal against the arbitrator’s award at the

Labour Court.

SUBMISSIONS MADE BY THE PARTIES

The applicant submits the initial appeal before this Honourable Court was filed on 20 May 2025 well within the prescribed time limit, but it was declined by the Registrar due to want of a full record of the arbitral proceedings, company registration number to enable validation and an indication of the cause of action when the determination

was issued and received on the appellant. The applicant submitted that the attempt to file the appeal in good time showed that the default was not wilful. The applicant submits that they have attached a supporting affidavit by their legal practitioner that fully addresses the reasons for the delay as Annexure “C” on page 7 of the consolidated record. In addition, the applicant avers that the appeal enjoys high prospects of success as the tribunal a quo fell into error by not giving due weight to the respondent’s failure to demonstrate that he mitigated his loss. Moreover, the applicant submitted that the tribunal misdirected itself by failing to give reasons as to how it had arrived at the conclusion of the respondent’s salary, and yet no such evidence had been placed before it. The applicant further submitted that there is no prejudice to the respondent if the application for condonation is granted.

The applicant seeks the following relief;

That the Application for Condonation for the late filing of an appeal be and is hereby granted.

The applicant be and is hereby granted an extension of time within which to file its appeal, and it thereby allowed to file its appeal within five (5) days from the granting of this Order.

Each party to bear its own costs.

Per contra, the respondent submitted that the applicant failed to provide a valid, detailed and sworn explanation for the delay in filing its appeal beyond the prescribed 30-day period under Rule 19 of the Labour Court Rules, 2017. In addition, the respondent submitted that he was employed as a Logistics Manager under a contract without of time limit. He further submitted that he was summarily and unlawfully dismissed on 25 October 2024 without any disciplinary hearing having been conducted. This conduct he avers was in breach of Section 12B of the Labour Act [Chapter 28:01]. The respondent submits that the delayed appeal prejudices him by obstructing enforcement and denying him the timely relief of salaries owed since 2022. It is the respondent’s submission that the arbitrator made detailed factual and legal findings after considering both oral and documentary evidence. As such, the arbitrator’s decision cannot be faulted.

LEGAL ISSUES FOR DETERMINATION

From the submissions made by Counsel, it is apparent that the respondent does not dispute that the delay was not inordinate. That is not an issue. However, the respondent’s contention is on the reasonableness of the explanation and also the prospects of success of the appeal. This leaves the court with a duty to determine the following legal issues in contention;

Whether or not a reasonable explanation has been given for the delay.

Whether or not the attached grounds of appeal have any prospects of success.

THE LAW

What can clearly be discerned from the case authorities afore-mentioned is that, the factors to be considered in such an application are as follows:

That the delay involved was not inordinate, having regard to the circumstances of the case;

That there is a reasonable explanation for the delay;

That the prospects of success should the application be granted are good; and

The possible prejudice to the other party should the application be granted.

See: Bessie Maheya v Independent Africa Church (supra)

Reasonable prospects of success on appeal features as one of the requirements for the grant of an application for condonation. It is an important consideration which is relevant to the granting of condonation, although not necessarily decisive.

APPLICATION OF THE LAW TO THE FACTS

Whether or not a reasonable explanation was given for the delay?

At the hearing, the applicant submitted that the delay was 7 days. The respondent did not oppose this. The applicant submitted that the delay was due to the preparation of papers, gathering relevant evidence, as the initial appeal was rejected by the Registrar. The applicant also submitted that the director who was supposed to depose to the affidavit was out of town, which resulted in further delay, amounting to a 7-day delay. The respondent, on the other hand, submitted that the explanation given by the applicant

was unsatisfactory. On the matter of the director not being present to depose the affidavit, counsel contended that a company can simply appoint anyone to depose to an affidavit. Counsel also argued that no evidence had been tendered to demonstrate that the Registrar had indeed rejected the initial appeal.

In Kodzwa v Secretary for Health and Another 1999 (1) ZLR 313 (S), it was held as follows:

“Condonation for non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance. The Court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and satisfactory grounds being shown by the applicant.”

There should be a complete explanation for the failure to comply with the rules as held in Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and Others (2010) 31 ILJ 1413 LC at para [13]:

“In explaining the reason for the delay, it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a record of the dates relevant to the processing of a dispute or application, as the case may be.”

In this case, the applicant explained that the delay was mainly due to the Registrar initially rejecting the appeal. The applicant also attached a letter to the arbitrator requesting the full record of proceedings. In my opinion, the explanation provided by the applicant is satisfactory as it demonstrates their efforts to continue with their case. The respondent has not argued that the delay was excessive. Therefore, the explanation is deemed satisfactory.

Whether or not the attached grounds of appeal have any prospects of success?

The notice of appeal annexed by the applicant raises two grounds as follows:

The Tribunal aquo fell into error which error amounts to a misdirection of law by not

giving due weight to respondent’s failure to demonstrate that he mitigated his damages.

The Tribunal aquo misdirected itself at law by failing to give reasons on how it arrived at the conclusion that the respondent’s salary was US$800.00 per month for the purposes of computation of the salary arrears, when no evidence had been placed before it.

With regards to the prospects of success, the applicant submitted in their heads of argument that the appeal enjoys high prospects of success as the arbitrator misdirected itself by omitting to give due weight to the respondent’s failure to demonstrate that he mitigated his damages. The respondent, on the other hand, submitted that the applicant did not have prospects of success. The Applicant’s submissions before the arbitrator were hinged on material falsehoods. The falsehoods included that the applicant initially vehemently denied that the respondent was its employee. Further, the applicant had averred that the respondent had voluntarily resigned which was found to be untrue. However, the applicant tried in vain, but ended up not pursuing that line of argument as it clearly did not hold water in the face of the evidence submitted by the respondent before the Arbitrator.

The applicant also avers that the appeal has a good chance of success as he argues that the arbitrator erred in arriving at a conclusion that the respondent’s monthly salary was US$800.00 instead of US$400.00 as the applicant contends.

The first ground of appeal raises a legal issue of the duty of an employee who is dismissed to mitigate the damages. However, the applicant’s contention is that the arbitrator did not give what he terms due regard. The reading of the attached arbitration award and reasons for the award shows that the arbitrator actually addressed the issue of mitigation of damages on page 8 of the reasons for the award. The arbitrator even quoted the case of Gauntlet Security Services v Leonard. After having addressed the issue of mitigating the damages, the arbitrator reduced the damages which were claimed by the respondent from 36 months to 24 months- a reduction of 12 months. The court

is of the view that it is highly unlikely that the appellate court might interfere with the

arbitrator’s decision on mitigation of damages.

As for the second ground of appeal, the applicant’s contention is that the arbitrator erred at arriving at a conclusion that the respondent’s salary was US$800.00 per month. He contends that no evidence was placed before the arbitrator for her to arrive at such a conclusion. Reading from the arbitrator’s reasons for the award and from what transpired before the tribunal aquo, it shows that the respondent produced a series of documents showing various payments which were made to him by the applicant. The applicant on the other hand never produced any payslips or ZIMRA Pay As You Earn (paye) sheets or any official document showing the salary of the respondent. Such documents should have been easily availed by the applicant as the employer. Having lied at first that the respondent was not an employee of the applicant, it leaves one with an impression that the applicant was trying hard not to reveal the actual salary that the employee was paid during his employment. In the case of Goliath Manjala Vs Sikhangezile Nkala Maphosa SC 18 -2016 it was held that;

“The court a quo made findings of fact on which the exercise by it of its discretion turned. It also made findings of credibility on which its approach to the whole matter was made. The appellant ought to have appreciated the fundamental fact that the court a quo exercised its discretion on the two factors . . . This is because the court made specific findings that the appellant had lied to it and would in all instances where his version was at variance with that of the respondent, settle for the version that would have been advanced by the respondent . . .

If a litigant lied in one material respect, the court would be entirely justified in taking the view that he has lied in all other respects and in treating his evidence accordingly.”

If a litigant lies about a particular incident the court may infer that there is something about it which he wishes to hide.

It is this court’s view that the arbitrator took the approach advanced by the aforementioned case authority in disbelieving the applicant and believing the respondent. Consequently, the arbitrator reached a conclusion that the respondent’s salary was US$800.00 as was submitted by the respondent and the various documents exhibited before the tribunal a quo.

It is trite that an appellate court can only interfere with the decision of a lower court or tribunal based on factual issues where there is evidence of a misdirection. For an appellant to avail himself/herself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection. Put differently, the determination must exhibit symptoms of irrationality. (See Sable Chemical Industries v David Peter Easterbrook 2010 (2) ZLR 342 (S)).

The court In Essop v S [2016] ZASCA 114, the court in defining prospects of success held that;

‘’What the test for reasonable prospects of success postulates is a dispassionate decision, based on facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of a trial court. In order to succeed, therefore, the Appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorized as hopeless. There must in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal’’

The court is of the view that the appeal has just been mounted for the sake of frustrating the respondent. It is, therefore, the court’s conclusion that the appeal lacks any prospects of success and the application for condonation must fail on that ground.

It was in view of the foregoing that the application was dismissed.

GILL, GOLDLONTON AND GERRANDS; APPLICANT’S LEGAL PRACTITIONERS

RUFU-MAKONI LEGAL PRACTITIONERS; RESPONDENT’S PRACTITIONERS