Tapiwa Mandaza and 3 Others v Bravura Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/110/2025
HARARE, 23 JANUARY, 2025 AND
14 MARCH 2025
CASE NO LC/H/1232/24
---------




IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/110/2025

HARARE, 23 JANUARY, 2025 AND

14 MARCH 2025                         		                      CASE NO LC/H/1232/24

TAPIWA MANDAZA AND 3 OTHERS				APPLICANTS

BRAVURA ZIMBABWE (PRIVATE) LIMITED 		RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicants			- T. Muchineripi, Attorney

For Respondents		- C. Chabvepi, Attorney

MUSARIRI, J:

On the 26th November 2024 Applicants applied to this Court for condonation of a belated appeal. The application was made in terms of the Labour Court Rules, 2017. Respondent opposed the application.

The pertinent parts of the founding affidavit read as follows;

“3. On the 5th September 2024 I and the 2nd to 4th applicants herein and within the requisite time frame to note an appeal in this court under LCH 951/24 noted an appeal…

4. The said appeal was on 30 October 2024 adjudged to have been improperly before this court on account of;

a) the manner of the prayer thereto:

b) the 2nd ground of appeal was prolix; and

c) Consequently it was held that, the appeal was not properly before the court (see Annexture B) attached hereto being a copy of this court’s order in that regard.

5. I and 2nd to 4th applicants being unemployed had to mobilise financial resources to finance this litigation in light of the foregoing which explains the time it has taken us to approach this court from the 30th October 2024 up to date of filing of this application herein which eventuality was necessitated by our unfortunate status being unemployed hence the time it took us to mobilise the necessary financial resources under very difficult conditions.

8. In that regard we behove this court of equity to condone our tardiness in light of the foregoing wherein we had undertaken all efforts to challenge the offending determination but for the technical defects aforesaid.

9.1.1 I further contend that our non-compliance with the rules herein does not prejudice the respondent as the interests of justice require that we be given our day in court to argue and demonstrate the merits of our appeal on the basis of the draft refined notice and grounds of appeal draft heads of argument attached hereto marked Annextures C and D, clearly showing that the appeal is at the very lease (sic) arguable and has therefore bright prospects of success. Hence our application to this Honorable court to condone our tardiness and to grant us leave to the extension of the time frame to file our appeal out of time.”

In its opposing affidavit respondent countered in the main thus;

“11… Firstly it must be noted which fact is clearly admitted by the Applicants themselves, that the time to note an appeal lapsed as far back as the 6th of September 2024. The Applicant did file an Appeal then. They financed the filing of an Appeal through legal

representation until it was placed for argument and they vigorously persisted with it despite opposition and clearly taken points of law warning them to desist. This process was certainly not for free. They do not say so. From the time a Response was raised against their appeal they were well within good time to react, despite lack of merit in their appeal. They did not. They chose the high road. Surely justice is not an exclusive preserve for the Applicants, and finality in litigation is not a preserve for the Applicants only, its for the Respondent too: The Applicants cannot now turn around and claim that their failure to file an appeal is as a result having been impoverished somewhat, they actually funded a fatally defective process to its logical conclusion during the time they should have at least pursued the correct thing or better still desisted.

12. … Further, the draft appeal would be expected to motivate the court to lean towards condoning its filing where it raises succinct and concise grounds of appeal. What the Applicants have gone on to do is to try and reword their defective grounds but have failed to make the grounds concise and succinct. The law regarding this very peremptory aspect has been set. There is nothing that this Honorable Court should be called to condone and give leave for filing in the circumstances.

13. …Respondent too has been dragged to court, not once by the Applicants in the hope that they can fetch more money than they received, retained and spent following termination. Not once did they seek to return such monies to the Respondent if they believed that the settlement had been unjust. Respondent cannot be knocked out of funds

on the pretext of justice as if it has no right of equal protection of the law like the Applicants.”

Respondent prayed for the dismissal of the application for condonation.

Applicants draft grounds of appeal reads as follows;

“1. The tribunal a quo erred and misdirected itself in holding that the 1st to 4th appellants had waived their rights to challenge the unlawful termination established on record.

2. Consequently, the tribunal a quo erred and misdirected itself in law in dismissing the appellants’ claims, as opposed to reinstating them with full salary and benefits; or directing payment of damages in lieu of reinstatement.

Wherefore the appellants pray…”

Analysis

The major part of the delay i.e. from 6 September 2024 to 30 October 2024 (3 months) was covered by applicants’ abortive appeal which was struck off on the latter date. The remainder of the delay (1 month) is the period when the unemployed applicants say they were mobilizing funds to fund the present application. Respondent argued that this amounted to a bare plea of poverty. This Court disagrees. Legal costs are a reality that litigants have to deal with. Unemployed litigants like applicants are seriously challenge and may take time to raise the required funds. A delay of effectively one month in these circumstance is not inordinate. The Court accepts as reasonable applicants’ explanation for the delay in filing this application.

The Designate Agent found that the applicants waived their right to challenge their dismissal by receiving payment of terminal benefits. In their papers and before this Court applicants did not dispute receipt of the payment. The Agent’s conclusion is consistent with law as set by the case of;

Chidziva v Zisco   1997(2) ZLR 368(S)

Per Korsah JA 382 G

“There can be no room for doubt that the Zisco Workers Chairman and the Zisco Workers Representatives, who made submissions with several references to the Regulations, were

aware that their refusal to accept the retrenchment package would have led to the invocation of subs (6), and not to a stalemate. Yet, almost to a man all the retrenchees accepted and received the retrenchment package, thus waiving the right to object to it.” Underlined for emphasis.

The reference to retrenchment package applies to terminal benefits in casu with equal force. Therefore applicants do not have prospects of success on the merits.

Conclusion

The Court is satisfied with applicants’ explanation for delay. However applicants do not have prospects of success on appeal. Accordingly the grant of condonation would serve no useful purpose.

Wherefore it is ordered that,

The application for condonation be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E