Tonderai Tawonezvi v C & J Accounting and Secretarial Services (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/289/25
HARARE, 15 MAY 2025 AND 15 AUGUST 2025
CASE NO LC/H/115/25
TONDERAI TAWONEZVI
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/289/25 HARARE, 15 MAY 2025 AND 15 AUGUST 2025		CASE NO LC/H/115/25

TONDERAI TAWONEZVI	APPLICANT

C & J ACCOUNTING AND SECRETARIAL	RESPONDENT SERVICES (PRIVATE) LIMITED

Before the Honourable G. Musariri Judge:

For Applicant	T. Tawonezvi, Applicant

For Respondent	M. Chimhonga, Attorney

MUSARIRI, J:

On 10 February 2025 Applicant applied to this Court for condonation of a belated appeal. The application was made in terms of Rule 22 of the Labour Court Rules, 2017.

Respondent opposed the application. The applicant’s founding affidavit stated that,

“(1) Extent and reasonableness of delay. As explained earlier, the first award (dated 17

June 2024) had not yet been quantified so I felt that appealing against it would pose a legal challenge if I felt I had to also appeal against the quantified award so that I file the appeal against both awards a at the same time. The 2nd award was collected from the arbitrator on the 15th November 2024 and it finally got to me on the 23rd of December 2024……I therefore stand guided by the court but I have reason to believe that after having given a truthful account of what transpired my explanation can be regarded as reasonable under the circumstances.

firstly, it appears to me that the arbitrator misdirected himself on the issue of reinstatement as the remedy for the unfair dismissal. It is respectfully submitted that once the applicant had submitted in his replication that he had found alternative employment and that he was amending his claim to then seek backpay instead of damages in lieu of reinstatement then the arbitrator had no business even dealing with the issue of reinstatement….

secondly, in quantifying the outstanding salaries the arbitrator misdirected himself by finding that there had been no justification for a shift in the claim on quantum of salaries contained in the claim and that contained in the proposed deed of settlement that was never signed. He had no business relying on the proposed deed. It was however explained that the shift arose from the fact that the claimant had originally used some of the salaries in RTGs dollars when arriving at the proposed deed but when it came to the arbitration proceedings the claim was entirely in USD. This explains the variance….

Further to the foregoing, the arbitrator used wrong figures when quantifying the fuel allowance when he awarded….

10. when all these factors are considered it is clear that the overall approach the arbitrator used in his original award and in the quantification was a result of a fundamental mis-direction that caused the applicant significant prejudice amounting to US$13,281.63.”

On the other hand respondent’s opposing affidavit countered that.

“11 Respondent avers that the explanation cannot be regarded as reasonable in the circumstances. It remains questionable and calculating as the rest of the reasons proffered for his non-action. Respondent avers that it is mischievous of the Applicant to try and arm-twist the Honourabe Court into granting him condonation on the pretext that he is a self-actor when he has boldly stated in these same papers that he has had the benefit of legal advice hence part of the delay…

Respondent avers that the Applicant has no prospects of success on appeal. This because there was no misdirection by the Honourable Arbitrator in ordering reinstatement or alternatively damages in lieu of reinstatement where the employer is no longer able to reinstate an employee but this was spurned by the employee only for him to accept the reinstatement later as shown by the email annexed to this Opposing Affidavit. Thus there was no misdirection by the Honourable Arbitrator as alleged by the Applicant.

Respondent submits that there was no misdirection either in the manner in which the Honourable Arbitrator calculated the arrear salaries due to the Applicant…It is thus not correct that the Honourable Arbitrator did not show how he arrived at the additional US$5,794.14. 14 The Respondent submits that the Honourable Arbitrator’s reliance on the amount agreed on in the draft Deed of Settlement did not result in any prejudice.”

ANALAYSIS

Rule 19(1) of the Court’s Rules requires that an appeal should be filed within twenty-one days from the date when the appellant receives the (impugned) decision.

Delay

There are 2 arbitral awards which applicant wishes to appeal to this Court. The 1st one is dated 17 June 2024 whilst the 2nd one is dated 15th November 2024. The latter award should have been appealed by mid-December 2024. Applicant only approached this Court on 10 February 2025 through the present application. Thus there is a delay of two months.

Explanation for Delay

Applicant stated that he sent one Chiromo to collect the award and hand it over to his neighbour Chivese since applicant was away attending to a family emergency, Upon his return he was advised that Chivese was away in Magunje. He only managed to see Chivese “just before Christmas’ whereupon he got the award. He started working on his appeal in ‘early January 2025’. Thereafter he was engaged in putting together the documents in support of this application including the supporting affidavit by Chivese.

Assuming that applicant got the award just before Christmas in 2024 it means it took him 1 ½ months to approach this Court. The explanation about putting together the necessary documentation does not suffice to explain the passage of that much time. The explanation for delay is thus considered as unsatisfactory.

PROSPECTS ON THE MERITS

The 2 awards are really one as they address the same cause of action which was applicant’s unlawful dismissal by respondent. The 1st one ordered applicant’s reinstatement or payment of damages in lieu of reinstatement. The 2nd award then quantified applicant’s damages for loss of employment. The Court considers the two awards as one.

Applicant stated that he informed the arbitrator through his replication that he was dropping the claim for reinstatement as he had found alternative employment. He then sought damages for loss of employment. On that basis he argued that the arbitrator should not have dealt with the aspect of reinstatement but focused on his back-pay.

Applicant’s argument resonates with Article 23(2) of the Arbitration Act Chapter 7:15 which reads

“(2) unless otherwise agreed by the parties either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.”

This is further buttressed by the case which the Arbitrator himself cited.

Art  v Moyana 1989(1) ZLR 304(S)

Per

“The obvious remedy for unjustified (unfair) involuntary termination is reemployment if the employee wishes thus reinstatement is the primary remedy for unfair dismissal.”

Underlined for emphasis

The Arbitrator in casu improperly ordered reinstatement when applicant no longer wished to be reinstated.

The 2nd award is underpinned by the erroneous 1st award. It is therefore concluded that applicant has reasonable prospects of success on the merits

CONCLUSION

The delay is not inordinate;

The explanation for delay is unsatisfactory; but

Applicant has reasonable prospects of success on the merits. In this scenario the Court is guided by the dicta in,

Chibanda v Harare  SC 83/21 Per Hlatshawyo JCC

“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…The applicants are required to show they have an arguable case on the appeal…

In all the circumstances this Court is persuaded to exercise its discretion in favour of the grant of condonation,

It is ordered that,

The application for condonation be and is hereby granted;

Applicant may file his appeal within fourteen (14) days of this order; and

Each party shall bear its own costs.

J-U-D-G-E