Crispen Vundla and David Muchinguri v Innscor Africa Bread Company Zimbabwe (Private) Limited and Maxwell Sabilika N.O

The two applicants were formerly employed by the first respondent as a procurement director and general manager respectively. The first applicant's employment was terminated on 5 June 2014 pursuant to a purported consensual written agreement brokered by the employer's former Finance and Human Resources Director. The second applicant was retrenched with Retrenchment Board approval on 5 December 2014 and signed a retrenchment agreement absolving the employer from further claims. Both applicants accepted and consumed their terminal packages. They challenged the terminations before a labour officer on 20 November 2015, claiming unfair dismissal and non-payment of benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016, finding mutual consent for the first applicant and proper retrenchment for the second, and that both had waived their rights by accepting terminal benefits. The Labour Court confirmed the ruling on 19 May 2017. The applicants initially appealed (SC 566/17) but withdrew it on 22 February 2018 after the Supreme Court raised concerns about the propriety of confirmation proceedings. Following the Constitutional Court's judgment in Isoquant Investments v Darikwa CCZ 6/20 (which clarified that confirmation proceedings could be brought against employees), the applicants filed an application for condonation and extension of time to appeal on 13 April 2021.

• Whether the application for condonation and extension of time to appeal should be granted
• Whether the right to appeal had prescribed under the Prescription Act
• Whether the applicants provided a reasonable explanation for the inordinate delay of over 3 years and 8 months
• Whether the applicants demonstrated reasonable prospects of success on appeal
• Whether the labour officer conducted proper conciliation in accordance with statutory requirements
• Whether the acceptance of terminal packages constituted waiver of the right to challenge termination
• Whether the Labour Court had jurisdiction to confirm a draft ruling made against employees

The application for condonation and extension of time to appeal was dismissed. The applicants were ordered to pay the first respondent's costs jointly and severally, the one paying the other to be absolved.

The binding legal principles established are: (1) Rule 61 of the Supreme Court Rules 2018, which governs applications for extension of time to appeal, is excluded from the application of section 15(d) of the Prescription Act by virtue of section 13(1)(b), as it constitutes an enactment that imposes conditions on instituting such claims. (2) A labour officer must conduct conciliation in accordance with the four-stage approach (introduction, story-telling, dispute analysis, and problem-solving) as a consensus-seeking mediation process; conciliation that involves pleadings, statements of claim and defence, and adjudicative determinations is a nullity. (3) A draft ruling emanating from improper procedural steps and substantive requirements is incapable of invoking the confirmation jurisdiction of the Labour Court. (4) The voluntary acceptance and consumption of terminal packages by employees constitutes waiver of the right to challenge the legality of termination, even where mandatory retrenchment procedures may not have been followed, per Chidziva v Zimbabwe Iron and Steel Company. (5) Prescription must be pleaded in the relevant documents filed of record, and while a court may allow it to be raised at any stage, a party seeking to rely on it must either plead it or seek leave of court.

The court made several non-binding observations: (1) It explained that the remarks in Drum City (Pvt) Ltd v Brenda Garudzo SC 57/18 at paragraphs [12] and [13] suggesting that confirmation proceedings could not be brought in respect of draft rulings against employees were obiter dicta, as they did not relate to the issue actually before the court, and were subsequently jettisoned by the Constitutional Court in Isoquant. (2) The court observed that confirmation proceedings constitute "a rehearing in the wider sense" in which the Labour Court is not bound by the factual findings and legal expositions of the labour officer, but must examine the correctness of facts and law and make its own correct determination. (3) The court noted that while the first respondent's argument regarding mala fides (challenging termination without tendering back terminal packages) was persuasive, it was not a proper case for costs on a higher scale, as the applicants had genuinely sought to appeal throughout. (4) The court explained the nature of conciliation as active mediation presided over by the labour officer but driven by disputants, borrowing from South African jurisprudence and academic writers. (5) The court clarified that a certificate of no settlement in respect of disputes of right leads automatically to adjudication before the Labour Court, not to arbitration (which is reserved for disputes of interest in essential services).

This case is significant in South African and Zimbabwean labour law jurisprudence for several reasons: (1) It clarifies the relationship between the Prescription Act and procedural rules governing appeals, establishing that Rule 61 of the Supreme Court Rules is excluded from prescription by operation of section 13(1)(b) of the Prescription Act. (2) It applies and elaborates on the Constitutional Court's authoritative guidance in Isoquant Investments v Darikwa regarding proper conciliation procedures before labour officers, emphasizing that conciliation is a consensus-seeking mediation process, not an adjudication requiring pleadings and submissions. (3) It reinforces that procedural defects in conciliation render subsequent draft rulings and confirmation proceedings nullities, depriving the Labour Court of jurisdiction. (4) It reaffirms the binding principle from Chidziva that voluntary acceptance and consumption of terminal packages constitutes waiver of the right to challenge termination, even where retrenchment procedures may have been defective. (5) It demonstrates the court's approach to condonation applications, requiring satisfaction of all three major requirements: reasonable explanation for delay, prospects of success, and consideration of the extent of delay.