Tonderai Nyapokoto v Shereni Transport (PVT) LTD & 2 Ors

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/345/25
ZIMBABWE HELD AT HARARE 16
SEPTEMBER 2025
CASE NO. LC/H/573/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 16 SEPTEMBER 2025

AND 26 SEPTEMBER 2025

IN THE MATTER BETWEEN:

JUDGMENT		NO.	LC/H/345/25 CASE NO.	LC/H/573/25

TONDERAI NYAPOKOTO	APPELLANT AND

SHERENI TRANSPORT (PVT) LTD	FIRST RESPONDENT

C.V CHINEMBRI N.O.	SECOND RESPONDENT NEC FOR TRANSPORT OPERATING

INDUSTRY	THIRD RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For the Appellant/Applicant	Mr. T.C. Nemadziva

For the 1st Respondent	Mr. L. Madzima

No Appearance for Second and Third Respondents.

MURASI J.,

This is a combined application for review and appeal against the award of the Hon.

Arbitrator C.V Chinembiri N.O.

FACTUAL BACKGROUND

The appellant/applicant was employed by the 1st respondent as an international driver from January 2025. He lodged claims of unfair dismissal after he was ordered to surrender keys and leave after raising a complaint of insufficient book-outs. Efforts were made to resolve the matter internally, but they failed. Arbitration proceedings commenced before Arbitrator C. Moyo, who, upon eight months of receiving the written submissions, died without issuing a determination. The

appellant/applicant submitted that the second respondent replaced C. Moyo and proceeded to issue a determination without hearing the parties. Aggrieved by the delay in bringing out the determination, the appellant has approached the Court on the following grounds.

THE GROUNDS OF APPEAL

The Arbitrator entirely failed to determine the issue of terminal benefits and underpayment.

The Arbitrator ordered payment of outstanding terminal benefits, despite making a finding that the Appellant’s contract had not been unfairly terminated.

The Arbitrator grossly erred on his application of the principles of constructive dismissal.

GROUNDS FOR REVIEW

The 2nd and 3rd Respondents failed to issue an award within fair and reasonable timelines.

The 2nd Respondent had no authority to issue an award for proceedings which he had not presided.

Alternatively, the death of the Arbitrator C. Moyo terminated the proceedings between the Applicant and the 1st Respondent.

The takeover by the 2nd Respondent subjected the Applicant to malice and prejudice.

PROCEEDINGS BEFORE THE COURT

IN LIMINE

At the hearing, Mr. Nemadziva raised a preliminary point stating that the Board Resolution was invalid as it did not identify the parties to the litigation and that it did not refer to the correct proceedings. Mr. Madzima in response, stated that the resolution authorized Tanaka Varaidzo Pauline Mudeya to represent the company. He quoted the case of Valentine & Anor v Blooming Lilly Investments (Pvt) Ltd & Ors SC 42-23 on page 11, where the Court stated the purposes of a resolution. It was held that:

“Therefore, a company resolution is required for two reasons, first, to prove that the entity is aware of the legal proceedings and has authorized notice must specify details of what is appealed against, that is, the particular notice must specify details of what is appealed against, that is, the particular them and, that the person representing it has been clothed with the requisite authority to represent it in the proceedings”

Mr. Madzima submitted that they only made an error in stating that she would represent Logistics (Pvt) Ltd instead of Shereni Transport (Pvt) Ltd. Mr. Nemadziva confirmed that he does not doubt that the letter came from the first respondent, clothing the deponent with the authority to dispose of the affidavit. In Dicron Investments (PVT) LTD v Kawa & Ors HH 129-17, the Court stated:

“A preliminary point of law is one that if properly taken in an application or action, is capable of disposing of a matter without the need for the court to delve into the merits of the matter.”

In casu, the preliminary point being raised is beside the point, as what is important is whether there was a resolution authorizing the person to depose to the affidavit. The point is not meritable, thus it is dismissed.

MERITS

It is this Court’s view that grounds one and three do not meet the requirement that they be concise and precise. In Dr Nobert v The Church of the Province of Central Africa SC 25-17 p 11 per GARWE JA (as he then was), the Court took its time to address what constitutes precise and concise grounds of appeal. It was stated that the appellant must specify details of what is appealed against, that is, the particular findings of fact and rulings of law that are to be criticised on appeal as being wrong, and that the grounds of appeal must indicate why each finding of fact or ruling of law that is to be criticised as wrong is said to be wrong. The Court stated that where a court is faced with some grounds of appeal that are not clear and precise and by others that are, the court should proceed to determine the appeal based on the valid grounds of appeal.

Based on the above, it is clear that grounds one and three fall within the scope of what the Court described as improper and not precise, hence they should be struck out from the notice of appeal. The Court thus proceeds to deal with ground two only.

On the grounds for review, Mr. Nemadziva abandoned grounds one and four. He addressed grounds two and three simultaneously. He submitted that the demise of the Arbitrator C. Moyo rendered the proceedings abortive. He was of the view that if an arbitrator dies, he dies with the proceedings. He made reference to Article 15 of the Arbitration Act [Chapter 7:15] and stated that the article relates to the arbitrator’s inability to perform, it does not relate to the demise of the arbitrator otherwise, the legislature would have said so. Mr. Madzima submitted that the ground is without merit because the demise of C. Moyo did not abort the proceedings. He stated that the parties had

agreed that the proceedings be conducted by way of written submissions; thus, there is nothing wrong with Mr. Chinembiri’s determination because he used the written submissions.

On ground of appeal number two, the appellant raised the issue that the Arbitrator ordered the payment of outstanding terminal benefits, despite making a finding that the appellant’s contract had not been unfairly terminated.

Mr. Nemadziva submitted that the Arbitrator failed to address the issue of whether the contract had been fairly terminated and diverted his attention, erroneously, to the question of constructive dismissal. He submitted that the conflict between the finding that the appellant’s contract had not been unfairly terminated and the conclusion that the appellant was entitled to outstanding terminal benefits is so logically disconnected that it can be termed grossly irrational. Mr. Madzima contended that the appellant left on their own accord. It was only after a complaint was raised that it was confirmed that the appellant’s apparent absence from work meant he had silently quit.

ANALYSIS

Whether or not the second respondent had no authority to issue an award for proceedings which he had not presided over.

Mr. Nemadziva submitted that the second respondent had no authority to write an award for proceedings which he did not preside over. He submitted that the demise of arbitrator C. Moyo rendered the proceedings abortive. On the contrary, Mr. Madzima submitted that the death of C. Moyo could not have terminated the proceedings, as he could be replaced. Reference to Article 15 of the Arbitration Act [Chapter 7:15] was made by both parties. It states that:

“(2) Unless otherwise agreed by the parties—

where the sole or the presiding arbitrator is replaced, any hearings previously held shall be repeated; and

where an arbitrator, other than a sole or a presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal.

Mr. Nemadziva’s argument is that the Article did not specify that a person could be replaced through death. He submitted that the second respondent never heard the dispute between the parties, but simply issued a determination. It is my view that the applicant’s argument is unreasonable because even before the first arbitrator, the parties never made any oral submissions,

as it was agreed that the parties would proceed by way of written submissions. Mr. Chinembiri reached his determination by use of written submissions, just as C. Moyo would have had he not died. On page 48 of the record, there is a letter from the applicant acknowledging the death of C. Moyo, and they further asked for a determination of the matter. The applicant’s letter definitely did not refer to the determination by C. Moyo, as they were aware of his demise. The letter even stated:

“For ease of reference, the documentation pertaining to this dispute is annexed hereunder.”

This assertion makes it clear that they expected a replacement of C. Moyo to deal with the matter. It should also be noted that Applicant did not request for a hearing in that letter but a determination of the matter as Applicant alleged that the matter had been long outstanding. It is thus the height of insincerity for the Applicant to now turn around and state that they were expecting to be called for an oral hearing. The facts also show that parties had agreed that the late C. Moyo was to proceed to make a determination based on the documents filed of record.

The applicant’s interpretation of the Article is far-fetched, as a person can be replaced through death, resignation, or many other reasons. The Article did not have to specify the reasons for the replacement. There was no reason for Mr. Chinembiri to call the parties for oral submissions rather than dealing with the matter on written submissions, as the parties had initially agreed. Mr. Chinembiri, as the replacement of the deceased, had jurisdiction to preside over the matter. This ground is without merit and ought to be dismissed.

GROUND OF APPEAL

Whether or not the Arbitrator ordered payment of outstanding terminal benefits, despite making a finding that the Appellant’s contract had not been unfairly terminated.

Mr. Nemadziva submitted that if the appellant’s contract was not unfairly terminated, it would not be the case that he is owed terminal benefits. Mr. Nemadziva submitted that ordering the appellant to surrender keys and leave after raising a complaint amounts to dismissal. He further submitted that the first respondent’s actions were intolerable and made it impossible for him to continue. In response, Mr. Madzima contended that the claim of unfair dismissal is without foundation, as it is clear that the appellant willfully terminated his own employment by failing to show up at work for five days. He stated that it was only after a complaint was raised that he confirmed that the

appellant’s apparent absence from work meant he had silently quit. It is undisputed that for the 11 months that the appellant was employed, the booking was the same throughout; hence, his refusal to go to work was to sabotage the company.

The appellant failed to come to work without any leave or any form of communication. To determine constructive dismissal, it has to be determined whether the employee brought the contract to an end, whether the reason for the employee’s action was that the employer had rendered the prospect of continued employment intolerable, and whether the employee had no reasonable alternative other than terminating the contract. The onus to prove intolerable working conditions rests on the employee, who must demonstrate a severe, persistent pattern of conduct by the employer that amounts to a fundamental breach of the employment contract or makes continued employment impossible. The issue of constructive dismissal was elegantly addressed by UCHENA JA in Rita Marque Mbatha v National Foods (Private Limited SC 149/20 where the Learned Judge had this to say:

“The interpretation of s 12B (3) (a) is guided by the phrase ‘because the employer deliberately made continued employment intolerable for the employee.’ The use of the word ‘deliberately’ means the employer must have intentionally done something which causes the employee to terminate the contract of employment intending to cause the termination of such employment. Therefore, constructive dismissal occurs when an employer intentionally makes continued employment intolerable for an employee. This also means an employer’s conduct which is not accompanied by an intention to make continued employment intolerable for the employee cannot constitute constructive dismissal.”

In casu, I note there was no evidence presented before the Court to support the assertion that the appellant was unfairly dismissed. The Arbitrator, at page 19 of the record, makes the observation that Applicant did not place any evidence of his resignation and did not provide evidence that the Employer had made the working relationship intolerable. The Arbitrator makes the following findings:

“The Claimant submitted that he was employed in January 2023 and was being paid USD 200 per month instead of the gazetted US 338. Further, the Claimant submitted that the Respondent did not pay the prescribed salary and benefits, including leave pay. In response,

the Respondent submitted that the Claimant received all their salary and terminal benefits and that they only owed USD 411 which he refused to sign for. In Replication the Claimant submits that the Respondent did pay terminal benefits based on the USD 200 which was a wrong salary.

In analysis of the submissions by the parties, I am of the view that the Claimant was paid their terminal benefits and a balance was left, there is no evidence to prove otherwise, the Claimant even acknowledges receiving some of. In my view the allegations are unsubstantiated.”

It is the Court’s view that there is no evidence of irrationality in the conclusions drawn by the Arbitrator. Therefore, this renders the appellant’s claim meritless.

DISPOSITION

After considering the submissions made, the Court is of the considered view that all the grounds of appeal and for review lack merit. The application for review and appeal ought to be dismissed.

In the result, it is ordered as follows:

The application for review is hereby dismissed.

The appeal, being devoid of merit, is also hereby dismissed.

There will be no order as to costs.

Zimbabwe Haulage Truck Drivers Union-	Applicant/Appellant’s representatives. Coghlan, Welsh & Guest-		Respondent’s Legal Practitioner