Tutsirayi Jonga v Fraser Alexander Zimbabwe (Private) Limited & Another

### Preamble
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IN THE LABOUR COURT OF JUDGMENT NO.LC/H/407/25
ZIMBABWE HELD AT HARARE 8TH
CASE NO. LC/H/463/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 8TH SEPTEMBER 2025 AND

In the matter between

JUDGMENT NO.LC/H/407/25 CASE NO.	LC/H/ 463/25

TUTSIRAYI JONGA	APPLICANT

And

FRASER ALEXANDER ZIMBABWE	1ST RESPONDENT (PRIVATE) LIMITED

And

G.R. CHIRENDA N.O.	2ND RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE

FOR THE APPLICANT:T. NYAMUCHERERERA FOR THE 1ST RESPONDENT:N.G. NYATSAMBO FOR THE 2ND RESPONDENT: NO APPEARANCE

MAKAMURE J:

This is an application for condonation ‘in terms of section 93(6) of the Labour Act

(Chapter28:01) as read with Rule 32 of the Labour Court Rules, 2017’. It is opposed. In this judgment the 1st respondent will be referred to as the respondent.

In order for an application for condonation to succeed ,requirements which include the following must be satisfied:

The extent of the delay must be explained;

The explanation for the delay must be reasonable;

There must be prospects of success on the merits should the application succeed;

The party’s interest in the finality of the judgment in their favour ;

Convenience for the court; and

Avoidance of unnecessary delay in the administration of justice.

The list is not exhaustive.

See :Viking Woodwork (Private ) Limited v Blue Bells Enterprises (Private) Limited 1998 (2)ZLR 249@ 251;Ismail Moosa Lunat v Mohammed Patel and Anor SC47/22;Kombayi v Berkhout 1988(1) ZLR 53(S).

Preliminary Issue

At the commencement of the hearing a preliminary point was taken on behalf of the applicant. The preliminary point was to the effect that the opposing affidavit filed on behalf of the respondent was not properly before the court in that when the deponent so deposed to that affidavit, they had no authority to do so. The affidavit was commissioned on the 23rd of June 2025 and the board resolution authorizing the deponent to represent the respondent was passed on 24th June 2025, that is, a day later. Various authorities on the importance of authority to represent a legal person who is not a natural person were cited. It was argued that at the material time the deponent had no authority to depose to the affidavit. It was argued further that the affidavit was not properly before the court. For that reason, it was submitted that the application was not opposed.

In response it was argued on behalf of the respondent that labour matters should not be resolved on the basis of technicalities. It was further argued that the resolution was specific to the matter and therefore competent. For that reason, it was submitted that the affidavit was properly before the court . In reply Mr Nyamucherera who appeared on behalf of the applicant argued that one could not plead a document which was not there.

Indeed ,the company board resolution was passed a day after the person who was authorized to make the affidavit had already deposed to the affidavit. In Madzivire and Three Others v Zvarivadza and Two others SC10/06 the Supreme stated that it is a well- established legal principle which courts could not ignore that a company being a legal person separate from its directors cannot be represented by a person who had not been authorized to

do so. See also Beach Consultancy (Pvt) v Makonya and Anor HH696-21. The non- compliance herein is that the affidavit was commissioned one day before the board resolution authorizing such representation was made.

In Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited SC81/22 the Supreme Court highlighted how concentrating on legal technicalities adversely affects the resolution of labour disputes. This does not mean that when and where there are irregularities they should be ignored. No not at all. They should be resolved. This is a principle which was established in Dalny Mine v Banda 1999 (1) ZLR 220 (S). However, each case must be determined according to its own merits. Further in labour disputes the aim is to do simple industrial justice between parties to a dispute.

In African Banking Corporation of Zimbabwe t/a BANCABC v PWC Motors (Private ) Limited and Ors HH123/13 the High Court stated that :

‘To my mind the attachment of a resolution has been blown out of proportion and taken to ridiculous levels. Where the deponent of an affidavit states that he has the authority of the company to represent it, there is no reason for the court to disbelieve him unless it is shown evidence to the contrary. Where no such contrary evidence is produced the omission of a company resolution cannot be fatal to the application. I therefore reject the point in limine.’

In the present matter the affidavit was commissioned before the resolution was made. However, when the resolution was made, it did not distance itself from the proceedings which are before the court today. What this shows is that when the deponent swore to the affidavit he did not lie. Obviously, the resolution ought to have come before the affidavit was deposed to. I am of the considered view that it would not be fair to condemn the affidavit without considering its authenticity .There was no evidence contrary to its authenticity. I therefore associate myself with the sentiments expressed in the African Banking Corporation case (above). I would direct as I hereby do, that the affidavit be found to be properly before the court. In the result the preliminary point is rejected.

Merits

Applicant in the founding affidavit stated that following the dispute between him and the respondent the matter was referred for conciliation. A draft ruling was issued but then the law changed and this affected the procedure to be adopted by labour officers after hearing

matters. Thereafter he approached a firm of legal practitioners who he said did not represent his interests well. The matter was then brought to this court but it was struck off due to some defect. He then stated that he was outside the country on business. The applicant also stated that there is no time frame to guide him in an application under s93(6) of the Act. The applicant stated that he is making a composite application in order to avoid dealing with the matter in a piecemeal manner. As for the prospects of success the applicant stated that he is owed money in the form of terminal benefits by the respondent.

On the other hand, respondent is totally opposed to the application. In an affidavit deposed to on its behalf, the respondent stated that the court cannot grant condonation and consequential relief. It stated that the application does not meet the requirements for an application both for condonation and the requirements of s93(6) of the Act. It was stated that the matter could be resolved through compulsory arbitration. It was stated further that the application does not live up to the heading that it was given by the applicant. It was the

position of the respondent that all the applicant’s claims were paid with the exception of payment for 90leave days which the 1st respondent admits. The respondent stated further still that the applicant resigned on the evening of a scheduled disciplinary hearing against him as he had been charged for dishonesty. As for the change in the law the respondent’s position was that the applicant could still have pursued the matter in terms of the law that had changed. The respondent submitted that the applicant failed to meet the requirements for condonation. It was the respondent’s position that in view of the respondent’s willingness to pay the applicant for the outstanding 90 leave days the applicant failed to prove his case before this court.

In heads of argument filed on behalf of the applicant it was argued that the Act as amended by Act 11of 2023 empowered the court to hear matters directly from labour officers. It was submitted that a case had been made for the application to be granted in that the explanation for the delay was reasonable and the applicant was entitled to payment of terminal benefits in United States Dollars. In court Mr Nyamucherera, in addition to abiding by the papers filed of record, submitted that this was an application sui generis. He submitted that the requirements for the application had been met. The court was referred to authorities which include Zimbank v Masendeke 1992(1) ZLR (S), Kodzwa v Secretary for Health and Anor 1999(1) ZLR 313(S) .

The heads of argument filed on behalf of the respondent gave a short background to the matter. The background was that the applicant resigned from the respondent’s employ the evening before a hearing which had been scheduled against him for a charge of dishonest conduct. The appearance before a labour officer was confirmed . The draft ruling confirmed the applicant’s claim for outstanding leave days. It was submitted that the application before the court was premature since there was no proof that the labour officer refused to refer the matter to compulsory arbitration. There was also no ‘Certificate of no settlement’ filed of record. Mr Nyatsambo who appeared on behalf of the respondent confirmed what was filed on the papers on behalf of the respondent.

Mr Nyatsambo argued that the applicant was not candid with the court . He referred the court to the case of Zimslate v CABS SC 34/17 and submitted that a party seeking condonation must be honest with the court. He also submitted that the requirements for condonation were not met. The reasons for the delay which included the lack of diligence by the applicant’s erstwhile legal practitioner were not reasonable. Where a legal practitioner shared the blame such legal practitioner was expected to submit an affidavit explaining the nature of his involvement. In casu this was not done. Mr Nyatsambo referred the court to authorities which included: Kodzwa v Secretary for Health (above); Diocesan Trustees, Diocese of Harare v Church of the Province of Central Africa 2010 (1) ZLR 267; Chimunda v Zimuto SC76/14. It was submitted that there were no prospects of success on the merits except for payment of outstanding leave days which the 1st respondent did not deny.

In reply Mr Nyamucherera submitted that a case had been made for the applicant and that he was entitled to payment of the terminal benefits in US dollars.

This application was made in terms of s93(6) of the Labour Act , Chapter 28:01(the Act). The provision reads thus:

‘93 Powers of labour officer

(1)…

(2)…

(3)…

(4) …

(5)…

(6) If, in relation to any dispute—

after a labour officer has issued a certificate of no settlement in relation to the dispute or unfair labour practice, it is not possible for any reason to refer the dispute or unfair labour practice to compulsory arbitration as provided in subsection (5); or

a labour officer refuses, for any reason, to issue a certificate of no settlement in relation to any dispute or unfair labour practice after the expiry of the period allowed for conciliation under subsection (3) or any extension of that period under subsection (4);

any party to the dispute may, in the time and manner prescribed, apply to the Labour Court—

for the dispute or unfair labour practice to be disposed of in accordance with paragraph (b) of subsection (2) of section eighty-nine, in the case of a dispute of interest; or

for an order in terms of paragraph (c) of subsection (2) of section eighty-nine, in the case of a dispute of right.

Applicant’s position appears to be that the matter was brought as it is because of the amendment to the Act by Labour Amendment Act 11/23.

S128 of the Act (as amended) provides as follows:

‘128 Transitional provisions

‘(1) Where a labour officer made a draft ruling in terms of section 93(5)(c) and for what reason, the draft ruling was not registered with the Labour Court in terms of section 93(5a) and (5b) of the replaced provisions, such draft ruling shall automatically be deemed to be a judgement or ruling of the Labour Officer which for execution purposes shall be registered in the appropriate court:

Provided an employer shall have a right of appeal of the Labour Court within 30 days after notice of registration.

(2) The quantum shall be calculated based on the currency in which the judgement was made and payable in Zimbabwean currency at the prevailing official rate.’

My understanding of the above is that if a labour officer made a ruling which by the time the amendment came into force the draft had not been confirmed, such draft ruling became an order of the labour officer and could be registered with the appropriate court. In the present matter there was no suggestion that the draft ruling being referred to was registered and if not, why this was not done.

The Labour Court Rules Statutory Instrument 150 of 2017 (S.I. 150/17) ( the Rules) provide for applications for condonation as follows:

‘22. Application for condonation of late noting of an appeal or review

A party wishing to apply for condonation of the late noting of an appeal or review shall do so in form LC 1.

An application in terms of this rule shall be accompanied by a draft of the intended notice of appeal or review.’(My underlining for emphasis).

Rule 22 (above) provides for applications for condonation for late noting of appeal or review. The present application is neither an application for condonation for late noting of an appeal nor late application for review. The rule is confined to those two situations only. It

does not provide for ‘any other’. It is trite that this court is a creature of statute. It is bound by the four corners of the Act.

In Tendai Tamanikwa and Three Others v Zimbabwe Manpower Development Fund SC33/13 the Supreme Court stated that :

‘The Labour Court is a creature of statute and can exercise only those powers that it has bestowed upon it by its enabling Act.’

S89(1) of the Act provides as follows:

‘89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions—

(a) hearing and determining applications and appeals in terms of this Act or any other enactment; and

…’

This court can only do those things which are provided for in the Act. Eastern Highlands Plantations v Farai Mapeto & 136 Others SC43/2016. The present application

does not fall under the ambit provided for by the rules. Further the present application is a composite application for condonation and consequential relief. When an application for condonation is made in terms of the rules it ordinarily stands on its own as an enabler for the relief sought. The present application is completely out of sync with the expectations to be met in an application of this nature. Even if it were to be accepted that it is an application sui generis, it has to fall within the provisions of the Rules.

In Zimslate Quartzite (Pvt) Ltd &Ors v Central African Building Society SC34/17

the Supreme Court stated as follows:

‘ [17]  An applicant, who has infringed the rules of the 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 indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed. ‘

The applicant in giving reasons for the delay put blame on his erstwhile legal practitioner. As correctly submitted on behalf of the respondent, there ought to have been an affidavit from the legal practitioner concerned explaining his involvement. There was none. The applicant indicated that he had travelled and that this contributed to the delay in bringing the matter to court. There was no proof that he had travelled. The applicant also indicated that he was raising funds and that this contributed to the delay. While he was raising funds, he could still have approached the court in order not to be out of time. He can therefore cannot use that as a reasonable excuse for being out of time.

It was argued on behalf of the respondent that the application was prematurely brought before this court. I agree. The applicant ought to have followed through process from the labour officer as set out in the Act. The applicant appears not to have been candid with the court regarding how the matter was handled by the labour officer. This obviously put a dent on his case. It becomes difficult to believe him. Goliath Manjala v Sikhangezile Nkala Maphosa SC18/16; Zimslate Quartzite (Pvt) Ltd & Ors v CABS (above). As correctly submitted on behalf of the respondent there was no proof that the labour officer refused to refer the matter to arbitration. The applicant went to great lengths to articulate what he

considered to be due and owing to him from the respondent. However, this is not yet the platform to deal with that detail.

The present application ought to have satisfied the basic requirements in order to succeed. Even had the application been within the confines of the Rules the explanation for the delay and its extent were not reasonable. As for the prospects of success, there were none. I am therefore persuaded to agree with Mr Nyatsambo that the application was premature with no reasonable explanation for the delay and no prospects of success. The application has no merit. It can only fail.

In view of the foregoing :

It is ordered that the application be and is hereby dismissed with costs.

LAWMAN LAW CHAMBERS, APPLICANT’S LEGAL PRACTITIONERS.

COGHLAN , WELSH & GUEST 1ST RESPONDENT’S LEGAL PRACTITIONERS