Muriel Mandengu and Twelve Ors v Shearwater Adventures Private Limited and Zambezi Helicopters Company Private Limited

### Preamble
Judgment No. SC 48/25
1
Chamber Application No. SCB 60/25
---------


REPORTABLE   (48)

MURIEL     MANDENGU     AND     TWELVE     ORS

v

SHEARWATER     ADVENTURES     PRIVATE     LIMITED     (2)    ZAMBEZI     HELICOPTERS     COMPANY     PRIVATE     LIMITED

SUPREME COURT OF ZIMBABWE

GUVAVA JA, MAKONI JA & MATHONSI JA

HARARE: 29 MAY 2025 & 13 JUNE 2025

Ms P. Dube with T Mabika, for the applicants

O. Kondongwe, for the first and second respondents

IN CHAMBERS

MATHONSI JA:

This is a composite application for condonation of the late filing of an application for leave to appeal and also for leave to appeal and extension of time within which to appeal.  It is made in terms of rr 66 and 67 of the Supreme Court Rules, 2025.

The application was filed on 15 May 2025 and is opposed by both respondents.

The applicants are former employees of the two respondent companies found themselves with viability problems in their tourism businesses owing to the effects of the Covid 19 pandemic.  As a result they sought to retrench employees which effort led to the present labour dispute that has occupied the parties for a considerably long time.

In essence, the respondents engaged in a retrenchment process affecting the applicants.  It would appear that all attempts to avoid retrenchment failed and efforts to resolve the matter with the affected employees also failed.  Accordingly, the respondents resorted to paying them a package which they did not agree with.

The employees challenged both the procedure followed by the employers in retrenching them and the retrenchment package that was paid.  The dispute having been referred to a Designated Agent (DA) of the NEC for the Tourism Industry, the DA rendered a determination dated 15 December 2022 in which he found that the employees were unprocedurally retrenched.

As a result, the DA ordered that they be reinstated to their positions of employment without any loss of salary and benefits.  In addition, he directed the employers to reinstitute retrenchment proceedings in accordance with the law within 30 days.

The determination by the DA set the stage for the involvement of the Labour Court to which the employers appealed having been dissatisfied with the determination in question.  By judgement delivered on 8 May 2023, the Labour Court meticulously went through the findings of the DA.  Making reference to the new retrenchment regime enshrined in s 12 C of the Labour Act, to wit, that the retrenching  employer is required to “give written notice of his/her intention to the works council established for the undertaking”, it found that:

“The uncontroverted evidence in the record of proceedings shows that the works council was not properly constituted in that Mr Mlilo, the chairperson of the Works Council, was also standing in as an employer’s representative contrary to the provisions of the Act that distinguish between members of the Works Council and the chairperson. Mr Tshuma for the workers was handpicked by the employer.  There was therefore no proper Works Council that could have been served with a notice to retrench in the circumstances”.

The Labour Court went on to remark:

“The retrenchment was unlawful in that the Works Council that was served with the notice was invalid and did not exist.  It means therefore that any other action that follows therefore was invalid.  The parties have to reconsider and the employer give notice to a properly constituted Works Council.  Measures to avoid retrenchment had been taken, all that remained was to give notice to retrench and arrive at a satisfactory package.”

The Labour Court pronounced itself very clearly and in no uncertain terms that the retrenchment was unlawful.  It however took the eye off the ball because the appeal by the respondents was challenging exactly the same findings of the DA.  It follows that the conclusion of that judgment should have been a dismissal of the appeal.  Alas, instead of dismissing the appeal, and without any other reasons, the judgment concluded thus:

“In the circumstances, the appeal succeeds with costs”.

No reasons for such success were given.

Understandably, the applicants thought that the disposition was a patent error.  They brought an application before that court in terms of s 92F (1) of the Labour Act as read with r 40 of the Labour Court Rules, 2018, for a correction of the judgment so that a disposition order dismissing the appeal be substituted.

Strangely, after hearing the application, the Labour Court purported to grant the application for a correction of the judgment.  Except that the correction was not an order in line with the reasoning contained in the body of the judgment.  The order granted reads:

“It is ordered that:

The application for variation of the court’s judgment be and is hereby granted.

The judgment of this Court dated 8 May 2023 be and is hereby varied and altered as follows:

To the concluding part which says that:

‘In the circumstances the appeal succeeds with costs’ is added the following:

The decision of the designated agent be and is hereby set aside.

Each party is to bear its own cost.”

It is unfortunate that this order was granted even though nobody asked for it.  The applicants sought an order deleting the concluding sentence of the judgment which did not make sense and its substitution with one which read:

“In the circumstances, the appeal be and is hereby dismissed with costs and the decision of the Designated Agent is hereby upheld.”

There was no counter application by the respondents who merely opposed the grant of application.

It follows that, in making an order not sought by any of the parties, the Labour Court was on a frolic of its own, it being trite that a court cannot grant an order not sought by the parties.  This was a monumental misdirection.

What compounds this case does not end there.  Finding themselves in a state of bother following the latest stance by the Labour Court, the applicants filed an application for condonation for the late filing of an application for leave to appeal against the substantive judgment and its correction.  The application was dismissed by the Labour Court.

In dismissing the application for condonation for the late filing of an application for leave to appeal, the Labour Court did not confine itself to consideration of whether the intended appeal enjoyed prospects of success, and the explanation and the basis for seeking condonation.  A reading of its judgment clearly shows that it was now engaged in a self – serving exercise of re – writing its earlier judgment.

This is so because the court hardly adverted to the case that was before it.  The crisp issue which was then before it was whether, in light of the glaring contradictory judgment on the correction of judgment, the applicants had a reasonably arguable case on appeal.  It was not for the Labour Court to close the door in the face of the applicants when it is the one that clearly created the problem bedevilling the parties.

In dismissing the application for condonation and leave to appeal, the Labour Court brought in new grounds which were not in its initial judgment and were not argued by the parties.  For instance, the court stated at p 8 of its judgment:

“In casu the court’s decision is clear, that whilst the parties negotiated under a forum not properly constituted, the aggrieved party acquiesced to it”.

This may have been stored in the mind of the court because it does not appear anywhere in its judgment sought to be impugned.  The Labour Court went further on the same page to state:

“It boggles the mind why they want to blow hot and cold and yet they want to have their cake and eat it.  They do not have qualms with the doctrine of peremption which is operating against them in the matter, because they acquiesced to what the employer did.  As recent as mid last year they were negotiating with the same body they say is illegal.”

Apart from this passage being contradictory to the findings in the earlier judgment I have cited above, it was a completely new case.  It did not form the basis for the decision sought to be appealed.

Subsequent to that, the applicants sought to appeal the judgment denying them condonation and leave to appeal the refusal of condonation.  They later recanted that course of action electing instead to file the present composite application.

As I have said, the application is opposed by the respondents who have taken points                 in limine firstly that a wrong rule has been used to make the application.  In the respondents’ view, rr 66 and 67 do not provide for a composite application for condonation for the late filing of an application for leave to appeal.  I agree with Ms Dube for the applicants that the point in limine has no merit.

Rule 66 (1) requires an appeal to be filed within 15 days of judgment while subr (2) requires that the appeal be noted within 15 days from the grant of leave to appeal by the Labour Court or judge of this Court where leave is required.  The proviso, to subr (2) allows an applicant to apply for leave to a judge of this Court within 10 days of refusal of leave.

Rule 67 entitles a judge, if special circumstances are shown by way of an application in writing, to condone the late noting of an appeal and extend the time within which to appeal.  So, where a party is out of time to seek leave to appeal, such party may bring a composite application for condonation and extension of time within which to seek leave as well as for leave to appeal.

In fact, there is sufficient case law which encourages the making of a composite application as one made by the applicants in this matter. There is no merit in the objection. It is accordingly dismissed.

The second point in limine taken by the respondents is that the application is premature as the applicants should have first persisted with their appeal in SC 107/24, wherein they sought to appeal against the refusal of condonation of the late filing of an application for leave to appeal the substantive judgment of the Labour Court.

THE SEEMINGLY CONFLICTING JUDGMENTS OF THIS COURT.

In addressing the Court for and against the grant of the application, counsel for the antagonists relied on what seemingly appears to be conflicting judgments issued by single judges of this Court in chambers on the propriety of this type of application.

The starting point is r 66(2) which is located in PART V11 of the Supreme Court Rules, 2025, dealing with Miscellaneous Appeals and References.  It provides:

“An appeal from a decision of the Labour Court in terms of s 92 F of the Labour Act [Chapter 28:01] shall be delivered, and filed with a registrar, within 15 days from the grant of leave to appeal  by the Labour Court or where such leave is refused, within 15 days from the grant of leave by a judge:

Provided that where leave to appeal is refused by the Labour Court, the applicant shall apply for leave to appeal to a judge within ten days of the refusal to grant leave”.

It would be recalled that in terms of s 92 F (2) of the Labour Act, an appeal to this Court can only be lodged with the leave of the judge who made the decision sought to be appealed.  If such judge is not available, with the leave of any other judge of that court.  In terms of s 92F (3):

“If the judge refuses leave to appeal in terms of subs (2), the party may seek leave from the judge of the Supreme Court to appeal”.

In terms of r 67 of this Court’s rules, if special circumstances are shown by the applicant in writing, a judge of this Court may condone the late noting of an appeal and extend the time laid down by r 66 for instituting an appeal.  The proviso to r 67 has added a requirement for concurrence by two other judges in the event that the judge dismisses an application filed in terms of r 67.   It is a new requirement which was not there in the 2018 rules.

What is clear from the provisions of both the Labour Act and the rules of the Supreme Court is that a party whose application for leave to appeal a judgment of the Labour Court whose application for leave to appeal is refused by the Labour Court has a right, without further ado, to apply for leave to appeal to a judge of this Court.

The question which arises is whether, where that party has delayed in seeking leave to appeal necessitating an application for condonation for late filing of an application for leave out of time before the Labour Court, which application is dismissed, it is precluded from approaching a judge of this Court seeking condonation and leave.  That is what the applicants herein have done.

There are instances where, after refusal of condonation by the Labour Court, as happened in this case, a party has appealed straight to the full bench of this Court against refusal of condonation.  See RBZ v Mufudzi & Ors SC 29/18 and Biti v Augur Investments & Anor SC 18/25 where the court entertained such appeal and dismissed it on the merits.  Compare Matsika & Anor v Chingwena & Ors SC 106/23.

There are also instances where, after refusal of condonation by the Labour Court resulting in refusal of leave to appeal, a party has filed an application for condonation and extension of time for seeking leave to appeal.  Such application has resulted in a single judge dealing with the question of condonation and extension of time.  In ZACC v Mangwiro & Anor SC 11/22, the facts are on all fours with the present case.  The court was confronted by the question whether an applicant who seeks and is denied condonation for the late filing of an application for leave to appeal in the Labour Court could procedurally approach this Court on application for the same relief.

After discussing all the permutations, Kudya AJA stated obiter dictum at pp 7-9 of the judgment:

“The first preliminary point raises an important question on the course of action an applicant ought to take when an application for leave to appeal is refused. In my view, the answer is provided as rightly observed by Mavangira JA, in s 92 F (3) of the Labour Act. The section reads:

‘92 F Appeals against decisions of Labour Court

An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

Any party wishing to appeal from any decision of the Labour Court on a question of law in terms of subs (1) shall seek from the President who made the decision, or, in his or her absence, from any other President, leave to appeal that decision.

If the President refuses leave to appeal in terms of subs (2), the party may seek leave from a judge of the Supreme Court to appeal.’

In terms of s 92 F (1) an appeal from the Labour Court lies to the Supreme Court on a point of law.  Section 92 F (2) requires the appellant to seek leave to appeal from the Labour Court.  And s 92 F (3) prescribes that the prospective appellant who is denied such leave approaches a judge of the Supreme Court.  The application before a judge of this Court is not an appeal against the refusal of the Labour Court. It is a legislative device that provides access to the Supreme Court to an aggrieved litigant.  It allows a higher judicial officer to reconsider the grievance with an unjaundiced eye.

The effect of a dismissal of an application for condonation for leave to appeal is to deny the applicant access to the Supreme Court.   The court a quo dismissed the only application that would have opened the applicant’s way to this Court ---.  The import of the dismissal was to refuse the applicant leave to appeal to this Court.  The refusal, by operation of law, therefore, activated s 93 F of the Labour Act --- the proper course of action was for the applicant to seek leave to appeal before a judge of this Court   once the condonation application was refused.  It would be absurd to require the applicant to seek leave to appeal against the dismissal and require the Supreme Court to determine whether condonation was properly refused.  Such circuitous route to appeal the substantive judgment could not have been in the contemplation of the legislature which, among other things, requires that Labour matters be completed inexpensively and timeously with minimum regard to formalism.”

35.  In resisting the application, Mr Kondongwe, for the respondent relied on the case of Bonde v National Foods Ltd SC 91/22 which was an application in terms of s 92 F (3) of the Labour Act as read with r 60 (2) and r 61 of the Supreme Court Rules, 2018 for condonation and extension of time within which to seek leave to appeal a judgment of the Labour Court.  The self-representing applicant had filed a series of unsuccessful applications seeking the same relief.

36.  It is surprising that counsel for the respondent relied on that authority because it does not support the proposition that he made.  In fact, in the Bonde case, supra, at p 6                      Makoni JA, specifically cited the passage in ZACC v Mangwiro, supra which I have quoted extensively above.  The learned judge then determined that the application in that case, being one for leave to appeal, was filed out of time without first making an application for condonation for the late noting of an application for leave to appeal. In the Court’s view:

“There is no shortcut because ‘the need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit.”

37.  The Court in that case concluded that, in the circumstances of that case, the application was made in terms of the wrong rule (r 61) which dealt with condonation for the late noting of an appeal.  It stated:

“It is against this backdrop that the applicant ought to have made an application for condonation for the late filing of an application for leave to appeal, in terms of the appropriate rule, and not an application for the late filing of an appeal.  The application before me has evidently been made in terms of the wrong rule and is therefore not properly before me.”

38.  Mr Kondongwe also made reference to the case of Zesa Holdings (Pvt) v Munyanyi & Anor SC 6/24 which dealt with an application for condonation of non-compliance with the rules and extension of time within which to apply for leave to appeal which was made in terms of r 43 (3) and r 60 (2) of the Supreme Court Rules, 2018.

39.  In that case the applicant had sought condonation of the late filing of an application for leave to appeal and extension of time within which to file an application for leave to appeal.  One of the preliminary points taken was that the applicant not having sought and not having been denied leave to appeal by the Labour Court, could not prematurely seek leave from a judge of the Supreme Court.  Relying on the authority of Chomurema v Telone SC 86/14, chatukuta JA reasoned that an application for leave to appeal must be filed and determined in the Labour Court before one can properly approach the Supreme Court.

40.  After referring to the judgment in ZACC v Mangwiro, supra, the learned judge went on to state at p 9:

“I do not agree, with respect to kudya AJA, that once an application for condonation has been dismissed, a party has the right of audience before this Court in the absence of an application in the Labour Court for leave to appeal and determination of that application.  Section 92 F explicitly states that the right to have an audience with the Supreme Court comes into effect the instant an appeal is dismissed.  The dismissal of an application for condonation cannot trigger the application of s 92 F (3).  The Supreme Court is a creature of statute.  A judge of the Supreme Court derives his/her powers to determine an application for leave to appeal from s 92 F (3) of the Labour Act.  He/she can only do so after the Labour Court has been seized with an application for leave and dismissed it.  A judge, in chambers, cannot depart from the dictates of the Labour Act.  To do so would amount to altering the Labour Act and arrogating to himself or herself legislative powers.

The effect of proceeding to determine the application before me, where condonation was declined by the court a quo, is to interfere with the judgment of the court a quo declining condonation.  The decision of the court a quo was an exercise of discretion.  A single judge, in chambers, is being called upon to interfere with the exercise of discretion of the court a quo.  An interference with the exercised discretion by a subordinate court can only be in terms of a process properly before the Supreme Court challenging that decision.  There is no such process before this Court.”

41. A conundrum has been created where two judges of this Court, sitting in chambers, have issued conflicting judgments on the same issue.  Subsequent to that, two other cases were dealt with by single judges.  In Bonde v National Foods Ltd SC 9/24 an application for condonation, extension of time and leave to appeal against the judgment of the Labour Court which dismissed an application for condonation and extension of time to file an application for review, was granted.

42. In Mugari v Chinhoyi University of Technology SC 126/23, this Court entertained and dismissed an application for condonation of the late filing of an application for leave to appeal.  The application was made after the Labour Court had dismissed the application for condonation for failure to seek leave within the prescribed period.  Chitakunye JA found that the applicant in that matter had failed to give a reasonable explanation for the delay in seeking leave and that there were no prospects of success on appeal.

CONSIDERATION

43.  The applicants have had a merry go round.  They have literally been sent from pillar to post while pursuing justice in a case that should not have taken such a complicated turn had it been dealt with properly.  The time has come to unravel the conundrum that eventuates from the judgments emanating from this Court penned by single judges in chambers. This is because the litigating public expects the highest Court in the land to give a definite position of what the law is and the current position is undesirable to say the least. In that regard it has become necessary for me to secure the concurrence of two other Judges of this Court on the position I take. Ordinarily, an application of this nature would be disposed of by a single judge in chambers, but owing to the controversy adverted to herein, the concurrence of two other judges has been sought in order to have finality.

44.   What is clear is that, acting on the authority of this Court’s judgment in ZACC v Mangwiro supra, the applicants withdrew their appeal against refusal of condonation by the Labour Court.  They then embarked on the present application which has also hit turbulence owing to the judgments which are at variance with that judgement.

45.  In terms of r 67:

“Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by r 66 or by the enactment concerned, for instituting an appeal.”

I do not read s 92 F (3) of the Labour Act to prohibit the condonation of the late noting of an appeal where such has not been considered by the Labour Court.  If one follows the logic in Zesa Holdings, supra, the section merely delays it. For that reason, r 67 reposes a discretion in me, where exceptional circumstance are shown, to grant condonation.

46.  I take the view that the circumstances of this case demand that the grant of condonation be considered if for nothing else, but for the conflicting judgments alluded to above which have led the applicants to where they are now. In any event, both the Labour Act and the Rules of Court are silent on what happens where condonation for the late approach for leave is refused resulting in the Labour Court not considering the application for leave. The case of Zesa Holdings, supra, was decided on the premise that the exercise of discretion by a Judge of the Labour Court to refuse condonation requires a full bench to interrogate it. The case of ZACC v Mangwiro, supra, was determined having regard, not only to the expediency without adherence to technicalities required for labour matters. It occurs to me that it represents, more closely, the position of the law in this jurisdiction as it could not have been within the contemplation of the law giver to put litigants in the long winding process advocated in Zesa Holdings, supra.

47. Regarding the merits of the application before me, I accept as reasonable the explanation for the delay in bringing this application.  Most of the time was spent trying to get the judgement corrected only for them to be sold a dummy by the Labour Court.  After that, they resorted to seeking to appeal the refusal of condonation.

48.  On prospects of success of the intended appeal, I have no hesitation whatsoever in concluding that there are reasonable prospects of success on appeal.  The grounds of appeal impugn the judgment not supported by reasons or supported by contradictory reasons.  They raise a question of law.  The application has merits and ought to succeed.

49.    What I find strange is the election by the respondents to oppose, not only the initial application for correction, but also the various attempts by the applicants to obtain redress.  This they did, notwithstanding the even stranger decision by the Labour Court to grant and dismiss the same application at the same time.  I however do not think they deserve to be visited with costs in light of the factors I have adverted to above.

50.    In the result it be and is hereby ordered that:

1. The composite application for:

(a)   condonation of the late filing of an application for leave to appeal against both the substantive judgments of the Labour Court in LCB 05/23 and LCB 06/23 as read with their correcting judgment in LCB 50/23;

(b)  leave to appeal to the Supreme Court against the substantive judgment of the Labour Court in LCB 05/23 and LCB 06/23 as read with their correcting judgment in LCB 50/23; and

(c) extension of time within which to note an appeal against both the substantive judgments in LCB 05/23 and LCB 06/23 as read with the correcting judgment in LCB 50/23,

be and is hereby granted.

2.  The applicants shall note their appeal to the Supreme Court against part of the judgment of the Labour Court in LCB 05/23 and LCB 06/23 together with LCB 50/23 within ten (10) days of the date of this order.

3. Each party shall bear it own costs.

GUVAVA JA	:	I agree

MAKONI JA	:       	I agree

Messrs Mugiya Law Chambers, applicants’ legal practitioners

Dube, Manikai & Hwacha, respondents’ legal practitioners