Surface Wilmer Limited v Webster Zongororo and 17 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/30/24
HARARE, 17 OCTOBER, 2023
CASE NO. LC/H/298/13
AND 31 JANUARY 2024
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/30/24 HARARE, 17 OCTOBER, 2023		CASE NO. LC/H/298/13 AND 31 JANUARY 2024

SURFACE WILMER LIMITED	APPELLANT

Versus

WEBSTER ZONGORORO AND 17 OTHERS	RESPONDENT

Before the Honourable Kudya J;

For the Appellant	 - F. Mahere (Legal Practitioner) For the Respondents	- E.E Matika (Legal Practitioner)

KUDYA J:

This is an appeal against the decision of the arbitrator who found that the respondent employees had a legitimate expectation of being re-engaged when their fixed term contracts effluxed by passage of time. The matter has taken almost a decade to be resolved which is surely regrettable and a travesty of justice in the court’s view.

Being that as it may two issues fall for decision in this matter and these are the main subject of this judgment. The two issues are the point in limine which says that the appeal was made out of time so should be struck off the roll and the issue whether the employer has made out a good case for appeal. Each of these issues is discussed below.

Point in limine

It is not contested that the appeal was made out of time. Appellant however hastens to mention that such a delay was brought to the attention of the judge who dealt with the application for condonation for late filing of rescission of judgment in the matter between the parties. The appellant favoured the court with the order and the pleadings in the condonation application see LCH/ORD/515/16, LCH APP 1521/15 LCH 298A/13. It is clear from a reading of the order and the affidavit founding the condonation application that indeed the delay was brought to the court’s attention and when the court allowed the appeal to be reinstated it was conscious that the appeal was a belated one. The court is in agreement with the appellant that it would not have intended to reinstate a nullity as a nullity begets a nullity. See McFoy v United Africa Company 1961 (3) ALLER PC 1169. Based on the above sentiments the court is satisfied that no point in limine has been made out vis the lateness of the appeal. The point should consequently fail. The point being without merit it be and is hereby dismissed.

Merits of the appeal

Having concluded on the delay of the appeal all that is left for the court is to decide whether a good case for appeal has been established by the appellant. The job of the court has been made a lot easier by the respondents who chose not to address the merits of the appeal at all in their response. It is settled that what is not queried is admitted. See S v Mahararahanda HC-B-4-22. It is clear thus from the record that no contestation has been made on the issues raised by the appeal suggesting acquiesce. Further to that when the respondent’s counsel was invited to address the court on the merits of the appeal all he told the court was that he was abiding by the Heads of Argument. It is settled that a case stands/ falls on the founding/responding affidavit and Heads of Argument is not part of pleadings. See Mangwiza v Ziumbe NO 2000 (2) ZLR 489. What is clear is that there has not been any contest to the appeal position set out within appellant’s papers. All that respondents have sought to do is to lay down the legal position in the Heads of Argument and the court is satisfied that such is not enough.

In any event aside the failure respond to the merits of the appeal the facts of the matter speak clearly to the fact that the arbitral decision was not in sync with the law. The contracts of the respondents clearly spelt out that there was no legitimate expectation to arise out of their renewals hence it was irregular for the arbitrator to contract for the parties and conclude that notwithstanding the non-renewal clause the respondent had become permanent employees. See Magodora vs Care International SC-24-14. It was a clear misreading of the law and such cannot be made to stand. In the ultimate it is clear that the appeal is merited and it should succeed.

IT IS ORDERED THAT

1.  Appeal being merited it be and hereby succeeds.

Gill, Godlonton and Gerrans – Appellant legal practitioners

Matika Gwisai and Partners- Respondents legal practitioners