Taurai Mhange Estate and 42 Others v African Sun (Private) Limited

The respondent, African Sun (Private) Limited, was severely affected by the Covid-19 pandemic which led to closure of its business. On 24 August 2020, the respondent issued notices of intention to retrench 43 permanent employees (the applicants). The applicants' employment contracts were terminated with effect from 1 September 2020. The applicants challenged the retrenchments before the Labour Officer, alleging they were procedurally and substantially unfair. The Labour Officer found the retrenchments valid and dismissed the complaints. The Labour Court confirmed the Labour Officer's ruling on 7 October 2022, finding substantial compliance with the retrenchment process. Leave to appeal was granted on 24 March 2023. The applicants filed notice of appeal on 19 April 2023 via IECMS but failed to serve a physical copy on the registrar of the Labour Court. The appeal was deemed abandoned. On 20 May 2024, applicants filed for condonation and extension of time, which was struck off on 6 June 2024 for a fatal defect. The present application was filed on 18 July 2024, representing a 15-month delay.

• Whether condonation should be granted for the late noting of an appeal and extension of time to appeal
• The extent of the delay in complying with Supreme Court Rules
• The reasonableness of the explanation for the delay
• Whether the applicants had reasonable prospects of success in the intended appeal
• Whether the Labour Court erred in finding compliance with section 12D(2) of the Labour Act regarding measures to avoid retrenchment
• Whether the Labour Court erred in finding compliance with section 12C(1) of the Labour Act regarding consultation with employees

The application for condonation for late noting of appeal and extension of time within which to appeal was dismissed with costs.

In applications for condonation for late noting of appeals: (1) The court must consider cumulatively the extent of delay, reasonableness of explanation, and prospects of success (Kombayi v Berkout principle); (2) An inordinate delay of 15 months without reasonable explanation does not merit the court's indulgence; (3) Assumptions about digital filing procedures do not constitute reasonable explanation where the Rules explicitly require specific forms of service; (4) There must be reasonable prospects of success for condonation to be granted; (5) An appeal court will not interfere with factual findings of a trial court unless those findings are so irrational that no reasonable tribunal could have reached such conclusion (Hama v National Railways and Zimre Property Investments principles); (6) Where a Labour Court makes a factual finding of substantial compliance with retrenchment procedures under the Labour Act, and no irrationality is demonstrated, prospects of success on appeal are minimal.

The court observed that while labour matters should generally be decided on merits rather than technicalities (citing Mapondera v Freda Rebecca and Kandemiri v First Capital), this principle does not override fundamental procedural requirements such as proper commissioning of affidavits, locus standi requirements, or compliance with Supreme Court Rules. The court also noted that subsection 2(a) of section 12D of the Labour Act (regarding referral to employment council or Retrenchment Board) only becomes applicable when discussions between employer and employees fail to yield an agreement on measures to avoid retrenchment. The court implicitly suggested that the unprecedented nature of the Covid-19 pandemic created circumstances not fully anticipated by the legislature, which may justify some flexibility in applying retrenchment consultation requirements, though substantial compliance remains necessary.

This case reinforces important principles in Zimbabwean labour and procedural law: (1) strict compliance with Supreme Court Rules regarding service of notices of appeal is required, and assumptions about digital filing do not excuse non-compliance with explicit rules; (2) applications for condonation require candid and detailed explanations for delay; (3) in retrenchment cases, substantial compliance with consultation requirements under sections 12C and 12D of the Labour Act may suffice, particularly in unprecedented circumstances like Covid-19; (4) appellate courts will not interfere with factual findings of lower courts absent demonstrated irrationality; and (5) procedural requirements in court applications, including proper commissioning of affidavits and locus standi, remain important even in labour matters despite the general preference to decide labour cases on merit rather than technicality.