Tatenda Brian Tinarwo v Petrana Trading t/a Bindura Tobacco

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/287/25
HELD AT HARARE 29 JULY 2025
CASE NO. LC/H/483/25
AND 13 AUGUST 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 29 JULY 2025

AND 13 AUGUST 2025

IN THE MATTER BETWEEN:

JUDGEMENT NO. LC/H/287/25 CASE NO.	LC/H/483/25

TATENDA BRIAN TINARWO	APPLICANT V

PETRANA TRADING t/a BINDURA TOBACCO	RESPONDENT

Before Honourable Mr. Justice Murasi and Honourable Mr. Justice Tsikwa

For Applicant:	Mr. C.T. Kwinjo

For Respondent:	Ms K. Chenyani

TSIKWA J.,

This is an application for condonation of late noting of an appeal against the decision of the arbitrator handed down on 8 August 2024. The arbitrator dismissed the matter after making a finding that there was no evidence that was tendered to prove that an employer / employee relationship ever existed between the applicant and respondent.

THE BACKGROUND

The applicant was engaged by respondent to do some work for it. He did this duty for close to a year when he subsequently resigned. The applicant argues that he was employed by respondent as Finance Director in September of 2020. He further submitted that he did a budget which was attached as annexture B. He further submitted that his working hours were fixed and monitored by the respondent and he reported to the General Manager, Mr. Blessing Mukamba .

It is the applicant’s case that in October 2020 the respondent advanced a soft loan to him for the purpose of purchasing a motor vehicle. It was also alleged that in November 2020 the respondent

wrote a letter to a bank confirming that he was employed by it on a permanent basis. He further submitted that in March 2024 he was transferred to Bindura and respondent met all expenses. Further, it was submitted by applicant that on 3 June 2021 the respondent employed a consultant to assist in the execution of his duties . He further submitted that he was surprised when in July 2021 the respondent tried to make him sign a consultancy contract back dated to September 2021. He submitted that the respondent withheld his salary for 2 months thereby making the relationship between them unbearable. He took that as constructive dismissal and he resigned on 25 August 2021. He submitted that to further confirm the existence of employer /employee relationship the respondent responded indicating that it was not accepting his resignation until he completed the tasks that he had been given .

The respondent has dismissed all the allegations by the applicant indicating that the respondent was engaged as a consultant and was not its employee. It was submitted that it comes as no wonder that he signed receipt of consultancy fees in September of 2021. It was further submitted for respondent that the applicant did not perform consultancy duties satisfactorily hence the engagement of another consultant in June 2021.

The respondent also took issue with the fact that it is now the fourth time being dragged to court over the same issue. Respondent submitted that it is the second time the applicant is making an application for condonation for failure to comply with the rules of court.

The respondent further submitted that the letter that was written to the bank was written for the convenience of the applicant and at his request. The respondent also submitted that this being an application for condonation for late noting of an appeal the court should consider seriously the reasons for the delay.

ARBITRATOR’S DETERMINATION

The matter was referred to the arbitrator for quantification of damages but the respondent raised a point in limine that the arbitrator did not have jurisdiction in the absence of an employer/ employee relationship. After the hearing the arbitrator ruled that there has not been any evidence that there existed employer/employee relationship between the parties. The arbitrator found the acknowledgement of consultancy fees by the applicant in September 2021 was sufficient evidence that the applicant was a consultant not an employee. Arbitrator also made a finding that the respondent had failed in his performance of consultancy duty such that another consultant was engaged in June 2021.

Having made a finding that there was no employer/employee relationship the arbitrator dismissed the claim and did not proceed to determine the other issues such constructive dismissal, salary arrears etc.

APPLICANT’S SUBMISSIONS

The applicant’s counsel, Mr Kwinjo, submitted that the application was bound to succeed because the delay was not that inordinate taking into account that the main reason for the delay was that applicant was looking for legal fees as well as respondent’s wasted costs. It was submitted that

there were prospects of success on appeal taking into account the fact that arbitrator erred in making a finding that the applicant was not an employee of the respondent.

Further it was submitted that the arbitrator erred in that she put too much weight on the acknowledgement of receipt of consultancy fees which document he signed under duress. It was also submitted on applicant’s behalf that arbitrator ignored the letter to the bank by respondent confirming that applicant was a permanent employee. The applicant’s counsel further submitted that though no documentation was produced before the arbitrator she was supposed to make a finding that the applicant was an employee of the respondent based on other evidence. He made a concession that there was nothing in writing to prove that an employment relationship existed or that certain statutory deductions such as income tax , AIDS levy, NSSA Contributions and pension contributions were being made.

Mr Kwinjo also made the concession that the grounds of appeal as they appear do not expressly raise points of law but submitted that they have such an effect. He also admitted that the applicant approached the court on three previous occasions and one application for review was struck off the roll for raising non-reviewable issues. The other was also struck off the roll for having a defective notice. The third one was also withdrawn by applicant for failing to comply with the rules of court. The court had then ordered that the applicant was barred from approaching the Court in the absence of evidence that applicant had paid the requisite to the respondent.

RESPONDENT’S SUBMISSIONS

Ms Chenyani, for the respondent, argued that the applicant was not a good candidate for the granting of condonation. She submitted that this matter was being brought before the court for the fourth time. Further, it was argued that there has not been any explanation as to the inordinate delay in excess of 240 days without filing a notice of appeal. It was further submitted that failure to raise legal fees cannot be a good reason for failing to comply with the rules because the Labour Court rules are relaxed and there is no strict adherence to formalities such that applicant could have appeared in person. A submission was made that the law only protects the vigilant and not the sluggard.

Ms Chenyani further submitted that there are no prospects of success on appeal because the arbitrator’s decision was sound at law because no evidence was adduced to prove that there was an employer/employee relationship. She argued that the applicant failed to link the arguments in the founding affidavit and the heads of argument to the impugned arbitrator’s decision . She submitted that the letter to the bank confirming applicant as a permanent employee was just done for the convenience of applicant and at his request but not reflective of the correct position. She made the concession during the oral submissions that the respondent had erred in so doing as this was a misrepresentation made to the bank. She also submitted that when the respondent indicated that it was not accepting applicant’s resignation it simply meant to say resignation could not be accepted at such a crucial moment of the season and before he completed the he had been given.

THE LAW

It is a matter of settled law that a party who fails to comply with the rules of Court must apply for condonation and in the process give adequate reasons for failure to comply with rules. Rule 19 (1) of the Labour Court Rules, 2017 provides as follows:

“A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision , determination or direction or award do the following-”

It is also important to note that condonation is not simply granted because an application has been filed. ZIYAMBI JA in Zimslate Quartize (Pvt) Ltd and Ors V Central African Building Society SC 34 / 17 emphasized the following:

“An applicant, who has infringed the rules of court before which he appears, must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgencies, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

The case of Kombayi V Berkout 1988 (1) ZLR provides the following requirements:

The extent of the delay.

The reasonableness of the explanation for the delay.

The prospects of success on appeal.

From the above, it becomes apparent that condonation is an indulgence granted by the court when the court is satisfied that there are good and sufficient reasons / cause for condoning the non- compliance with the rules. When deciding whether there is good and sufficient cause proffered by an applicant the court will consider the three factors cumulatively.

APPLICATION OF THE LAW TO THE FACTS

In casu there has not been any reasonable explanation as the delay in noting an appeal within 21 days from the 8 August 2021 when arbitrator decided the case. Instead there was delay of 240 days

. The explanation the applicant was at liberty to disclose was that he wanted time to raise legal fees and also wasted costs for the respondent. It has been held in a plethora of Supreme Court judgments that cannot be taken as just reason for failing to comply with rules of court especially if regard is heard to the fact that proceedings in the Labour Court are more informal than anything else. The applicant ought to have filed the notice of appeal in person than to wait for 240 days.

However, be that as it may it emerged during the hearing that the delay was further occasioned by the fact that the applicant the court on three previous occasions . On two instances the matters were struck off the roll for being defective or failure to comply with the rules. On the third occasion the applicant was forced to withdraw the application for not being in compliance with the rules. All

this contributed to the delay. It is trite that applicant cannot shift blame to his legal practitioners. STEYN CJ in the South African case of Saloojee and Another V Minister of Community Development 1965 (2) SA 135 (A) stated as follows:

“I should point out however that it has not at any time been held that condonation will not in any circumstances be withheld if blame lies with the attorney. There is limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the sufficiency of the explanation tendered. To hold otherwise might have disastrous effect upon observance of rules of court. Considerations ad misericordiam should not be allowed to become an invitation for laxity. In fact, this court was due to negligence on the of the attorney. The attorney after all is the agent of the litigant chosen for himself and there is little reason why in regard to condonation for failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship.”

In view of the above the applicant cannot escape the consequences of his failure to file a notice of appeal within the time stipulated in the rules simply because his counsel adopted wrong procedure on three occasions especially in circumstances where the counsel in question did not depose to an affidavit taking blame for the mishap. Such a lackadaisical approach to litigation cannot condoned.

The reasons given by the applicant for the delay are not sufficient for the court to grant condonation.

PROSPECTS OF SUCCESS ON APPEAL

It is requirement in our law that the applicant in an application for condonation must show that there are good prospects of success on appeal ie to say an arguable case on appeal. The applicant in the founding affidavit did not demonstrate how the decision of the arbitrator can be faulted in the light of the evidence tendered before her. The arbitrator indicated in her ruling that there was no evidence to prove that applicant was an employee of the respondent.

An application stands or falls on founding affidavit. The applicant’s affidavit does not show how the arbitrator erred in arriving at her decision. To make things worse the grounds of appeal do not comply with the rules. They are long and rumbling such that they cannot inform this court fully and properly the case applicant intends to make. In terms of the law the grounds of appeal must be clear and concise. Counsel for the applicant made a subtle concession that they are not. According to the case of Econet Wireless (Pvt) Ltd v Trust Co Mobile (Proprietary ) Ltd & Anor SC 43/13 anything that falls short of that improperly before the court. The case at hand is no exception.

To make things worse, in terms of Section 98 (10) of the Labour Act appeals against the decision of an arbitrator shall only be on a point of law. The current grounds do not disclose any points of law. During argument counsel could not point at any. It appears as if counsel was aggrieved by the findings of fact made by the arbitrator but allegation was made that the finding was grossly irrational such that no reasonable tribunal could have arrived at it. In fact, Mr. Kwinjo made the following concession:

“The arbitrator was not wrong in stating that no documents were produced- there is a point of departure- the documents should have been originated by the Respondent.”

The first that arises from this statement by the legal practitioner is the effect of the admission. Section 36 of the Civil Evidence Act, (Chapter 8:01) provides that where an admission is made, the Court shall not require evidence to be given in respect of that admission. The second issue is that it was not for the Respondent to prove the existence or otherwise of the employer/employee relationship. In Shilling Mavumbuka Sibanda v Yambukai Holdings (Pvt) Ltd HH 84/17, it was held as follows:

“It follows therefore that where a party makes bald assertions not backed by evidence and the same are denied by the party against whom they are made, such bald allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value.”

In Pillay v Krishna 1946 AD 946, DAVIES AJA had this to say:

“But there is a third rule which Voet states..’He who asserts, proves and not he who denies since denial of fact cannot naturally be proved provided it is a fact that is denied and the denial is absolute.’ The onus is on the person who alleges something and not on whose opponent who merely denies it.”

As already observed, Mr. Kwinjo makes the admission that no evidence was tendered to prove the employer/employee relationship. It was also admitted that the arbitrator was not wrong in making that finding. The question that then arises is to what purpose would the court grant condonation of the filing of an appeal in the circumstances?

In Mahachi v Barclays Bank of Zimbabwe SC 6/06, that Court stated as follows:

“It is settled that where no acceptable explanation for non-compliance with the rules has been given, an applicant for condonation must at least show very good prospects of success.”

It has been shown elsewhere in this judgment that the explanation tendered by the applicant is woefully deficient. No prospects of success have advanced by applicant.

If all the above factors such as the extent of the delay, explanation given for the delay, the prospects of success on appeal and failure to write clear and concise grounds of appeal and points of law being appealed against are considered cumulatively it is apparent that the court cannot grant indulgence of condonation. The application is bound to fail.

DISPOSITION

It is ordered that the application for condonation for late noting of an appeal be and is hereby dismissed with costs.

SDM Chatsama Law Chambers-	Applicant’s legal practitioners

Mugomeza & Mazhindu Legal Practitioners-	Respondent’s legal practitioners