CHIUNGA v AFC COMMERCIAL BANK LIMITED (SC 02 of 2026) [2026] ZWSC 6 (6 January 2026)

Judgment No. SC 02/26 Civil Appeal No. SC 364/25 1 REPORTABLE

(02) INNOCENT CHIUNGA v AFC COMMERCIAL BANK LIMITED SUPREME COURT OF ZIMBABWE MAVANGIRA JA, BHUNU JA & MUSAKWA JA HARARE: 15 SEPTEMBER 2025 & 6 JANUARY 2026 C.J Mahara & D. S Moyo, for the applicant A. S Ndlovu & A. Moyo, for the respondent MUSAKWA JA:

1. This is an appeal against the decision of the Labour Court (‘the court a quo’), which held that there was no valid order capable of being varied by the proposed application and consequently dismissed the appellant’s application for condonation. BACKGROUND FACTS

2. The appellant was an employee of the respondent. He was employed as a loans officer and was stationed in Gutu. The appellant operated a personal current account with the respondent under account number 005030023800055. On 29 December 2004, the appellant applied for a cheque book. The application was erroneously processed as a loan repayment account. A cheque book was processed reflecting the above error. The account reflected on the cheque book was 008300238055. The appellant used the cheque book, resulting in him overdrawing by ZWL48 582 086.39. On several occasions, the appellant would alter the account number to reflect his current account number. Judgment No. SC 02/26 Civil Appeal No. SC 364/25 2

3. The appellant was arraigned before the respondent’s disciplinary committee, facing charges of misconduct in terms of s 12 B of the Labour Act [ Chapter 28:01 ] (the Labour Act), namely ‘ any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of an employment contract ,’ and/or alternative ‘ theft or fraud .’ He was found guilty and was dismissed from employment.

4. Dissatisfied with the decision of the disciplinary committee, the appellant appealed to an Arbitrator. The Arbitrator confirmed the dismissal and an arbitral award was issued against the appellant. Disgruntled by the decision of the Arbitrator, the appellant appealed to the court a quo. In that appeal, the appellant cited the respondent as Agriculture Development Bank.

6. The appeal was heard by the court a quo on 27 May 2009, although the date of judgment is erroneously captured as 27 May 2008. The respondent was in default despite having filed process opposing the appeal. The court a quo found that the appellant was a loans officer and ought to have known the difference between a loan account and a current account cheque book. It further found that the appellant had tried to alter the digits of the different accounts in question from 008 to 050 and countersigned the same. The court a quo noted that the evidence showed that the appellant operated a loan account between February 2005 and April 2005 and that he withdrew money from two accounts during the same period when he fully knew that he had no loan account in his name. It held that the appellant had not applied for a loan and withdrawing from a loan account amounted to theft or fraud. The court a quo found that the appellant failed to establish that there was gross irrationality or Judgment No. SC 02/26 Civil Appeal No. SC 364/25 3 unreasonableness in the decision of the arbitrator in upholding the decision of the disciplinary committee.

7. However, with regard to the sentence, the court a quo disagreed with the arbitrator. It found that the arbitrator did not deal with mitigatory factors but only the aggravating factors. The court a quo noted that the appellant was a widower who had a child in boarding school, he served the respondent for seventeen years with a clean record and that he was a first offender. The court a quo also noted that the appellant did not plan to defraud the respondent, but it was the respondent that issued a loan book instead of a cheque book, which the appellant had requested. The court a quo held that the mitigatory factors outweighed the aggravating factors and as such, it could not confirm the penalty of dismissal. Subsequently, the court a quo granted the following order: “1. The appellant partially succeeds in relation to penalty.

2. The penalty of dismissal be and is hereby set aside and substituted with a written final warning valid for 12 months.

3. Appellant is to be reinstated in his former position.

4. If reinstatement is no longer possible, respondent is ordered to pay damages in lieu of reinstatement.

5. Either party can approach this Court for quantification.

6. That there be no order as to costs that each party is to bear its own costs.”

8. Disgruntled by the decision of the court a quo , the respondent sought to appeal to the Supreme Court. It applied for leave to appeal and successfully noted its appeal under SC 194/09. The appeal was never prosecuted and it was later withdrawn on 28 January 2022.

9. Pursuant to the withdrawal of the appeal, the appellant instituted proceedings for quantification of damages in lieu of reinstatement under LC/H/246/24. The respondent opposed the application and raised a preliminary point to the effect that there was no entity Judgment No. SC 02/26 Civil Appeal No. SC 364/25 4 subscribing to the name Agriculture Development Bank which the appellant had cited as respondent. The respondent argued that the order under LC/H/34/09 was unenforceable as it was granted against a non-existent party. The court a quo upheld the preliminary point and the matter was struck off the roll.

9. Following the striking off, the appellant sought to have the judgment under LC/34/09 amended to reflect the correct name of the respondent. He filed a composite application for condonation for the late filing of an application for alteration of judgment and an application for alteration of judgment under LC/H/34/09. The application was made in terms of r 22 of the Labour Court Rules, 2017.

11. In motivating the application, the appellant restated the requirements of an application for condonation for non-compliance with the rules, namely the extent of delay, the explanation for the delay, the prospects of success, the importance of the case and the balance of convenience. He stated that the degree of non-compliance was not inordinate in the circumstances as the appellant could not immediately apply for an alteration of the judgment since the respondent swiftly appealed against the same. He stated that the court a quo had no power to alter its own judgment in circumstances when the same was the subject of appeal to this Court under SC 194/09. He stated that the appeal was only withdrawn by the respondent in January 2022. The appellant further stated that upon withdrawal, the parties tried to engage each other but to no avail, thereby prompting the appellant to seek alteration of the judgment. However, he averred that he was out of time, thereby facilitating the lodging of the application for condonation for non-compliance with the rules and alteration of the judgment. Judgment No. SC 02/26 Civil Appeal No. SC 364/25 5

12. With regards the prospects of success, the appellant argued that the intended application for alteration of the judgment enjoyed bright prospects of success as the same was granted on the basis of a mutual mistake between both parties. The appellant stated that his reasons for seeking the same were in tandem with s 92C (1) (b) of the Labour Act in that the judgment was granted in error common to the parties. The appellant further argued that the parties were fully identified throughout the proceedings and that the respondent was only misdescribed and an application for alteration of the parties could cure the defect. He further argued that the respondent had appealed against the decision of the court a quo under SC 194/09, showing that it acknowledged that it was the correct respondent in the proceedings under LC/H/34/09.

13. The appellant averred that his matter was important in the field of labour law as it involved a substantial sum of money as damages in lieu of reinstatement. He further argued that the balance of convenience favoured the granting of the application as the appellant stood to be prejudiced if the application was not granted and that the respondent would be unjustly enriched. He further argued that the application ought to be granted in order to uphold the principle of finality to litigation. The appellant prayed for the success of the application.

14. To the contrary, the respondent raised two preliminary points. The first preliminary point related to the application for alteration of the judgment under LC/H/34/09. The respondent argued that there was no application for alteration of judgment since the application for alteration of the judgment which was attached by the appellant, was improperly before the court as the founding affidavit was not signed and attested before a commissioner of oaths. The second preliminary point related to the entire proceedings under LC/H/34/09. The Judgment No. SC 02/26 Civil Appeal No. SC 364/25 6 respondent argued that the application was not tenable as the appellant based his application on the defective order granted against a non-existent party. The respondent denied that there was a mutual error between the parties with regards to the identity of the respondent. The respondent argued that there was no entity that answered to the name Agriculture Development Bank.

15. On the merits, the respondent argued that the explanation for the delay was unsatisfactory. In advancing this argument, the respondent argued that the appeal that the appellant related to was last prosecuted in 2009 and between 2009 and 2022, the appellant did nothing to enforce his rights. It further argued that between 2022 and 2024, when the appeal was withdrawn and when the application for quantification was made, the appellant was also not doing anything to bring the matter to finality. THE COURT A QUO ’S FINDINGS

16. The court a quo held that notwithstanding the extensive arguments advanced by both parties, the application for condonation turned on the admissions made by the appellant in his papers, together with his submissions that the order sought to be varied or altered was unenforceable as it had been granted against a non-existent party. It found that, having cited a non-existent party, the proceedings were a nullity, and so too was the resulting order. Consequently, the court a quo concluded that there was no valid order capable of alteration through the proposed application for variation of judgment. In reaching its decision, the court a quo relied on the authority of Gariya Safaris v Van Wyk 1996

(2) ZLR 246 (H). The application was accordingly dismissed. Judgment No. SC 02/26 Civil Appeal No. SC 364/25 7

17. Dissatisfied with the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds of appeal: “GROUNDS OF APPEAL

1. The court a quo grossly erred in law and misdirected itself by dismissing the application for condonation without due consideration of the legal principles governing applications of this nature.

2. In failing to consider the requirement of an application for condonation, the court a quo grossly erred and misdirected itself in holding that the order granted under case number LCH 39/09 and the proceedings emanating therefrom were null and void ab initio, thereby determining an issue that was not placed before it for adjudication/consideration.” The appellant sought relief in the following terms: “WHEREFORE, the appellant prays that the appeal succeeds with costs and that the order of the court a quo be set aside and substituted with the following: (a) The application for condonation for late filing of an application for alteration of judgment be and is hereby granted with costs. (b) The applicant be and is hereby ordered to file its application for alteration of judgment within 10 days from the date of this order.” THE APPELLANT’S SUBMISSIONS ON APPEAL

18. At the hearing of the appeal, Mr Mahara, counsel for the appellant, sought to amend the relief sought to add an alternative relief. He submitted that the application for amendment of the relief sought was premised on r 48 of the Supreme Court Rules, 2025. After an Judgment No. SC 02/26 Civil Appeal No. SC 364/25 8 exchange with the Court, counsel conceded that the amendment of relief sought was not provided for in terms of r 48 of the Rules. As a result, counsel abandoned the application for amendment of the relief sought.

19. On the merits, counsel submitted that the two grounds of appeal attacked the decision of the court a quo on the basis that it failed to engage and scrutinise the requirements for an application for condonation for non-compliance with the rules, namely the length of the delay, explanation for the delay, prospects of success, balance of convenience and importance of the case. He argued that the appellant satisfied the stated requirements.

20. Regarding the length of delay, counsel submitted that a period of fifteen years had lapsed, but the length of the delay should be computed from January 2022, when the appeal against the decision of the court a quo in LC/H/34/09 was withdrawn by the respondent. The appellant further argued that there were efforts between the parties to reach a consensus in which engagements the respondent had offered to pay the appellant damages in lieu of reinstatement.

21. Counsel maintained that the judgment that sought to be corrected was a result of a common error between the parties. Counsel stated that the court a quo erred in failing to hold that the error on the identity and mis-citation of the respondent was a common error mutual to both parties and that the relationship between the parties was not in dispute. He further submitted that the respondent’s identity was sufficiently described throughout the proceedings. Counsel relied on the case of Mapondera v Freda Rebecca Gold Mine SC 81/22. Counsel denied that the appellant had admitted that he had erroneously described the respondent. Judgment No. SC 02/26 Civil Appeal No. SC 364/25 9 THE RESPONDENT’S SUBMISSIONS ON APPEAL

22. On the other hand, Ms Ndlovu, counsel for the respondent, submitted that the overriding factor was that there were no prospects of success on the appellant’s application for alteration of judgment. She submitted that the preliminary point relating to the mis-citation of the respondent was upheld in a judgment under LC/H/246/24 and that judgment was still extant. Counsel argued that the appellant could not seek to alter a nullity.

23. Counsel further submitted that the relief sought was irregular as this Court was being asked to sit as a court of first instance. Counsel denied that the respondent contributed to the length of the delay in lodging the application for alteration of the judgment, as all correspondence between the parties were made on a ‘without prejudice’ basis in 2022. Counsel submitted that the appellant was at liberty to apply for quantification of damages in lieu of reinstatement as far as 2009. Counsel further submitted that even after the withdrawal of the appeal by the respondent in 2022, it also took the appellant a further two years to apply for the alteration and no satisfactory explanation was tendered in support of such a delay.

24. In response, Mr Mahara insisted that the appellant did not admit to an erroneous citation of the respondent. He argued that the order under LC/H/34/09 was still extant and it was not challenged by the appellant, hence it was still extant and enforceable. ISSUES FOR DETERMINATION

25. The issues arising for determination in this matter are:

1. Whether or not the court a quo erred in dismissing the application for condonation. Judgment No. SC 02/26 Civil Appeal No. SC 364/25 10

2. Whether or not the court a quo dealt with an issue that was not placed before it. APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the court a quo erred in dismissing the application for condonation.

26. The principles guiding the exercise of judicial discretion in condonation applications are settled. A court seized with such an application must consider the degree of noncompliance, the explanation for the delay, the prospects of success on the merits, the importance of the case and the balance of convenience. These principles were set out in the case of FBC Bank Limited v Chiwanza SC 31/17 at p 2, wherein GWAUNZA JA (as she then was) stated as follows: “In considering an application for reinstatement, MALABA JA (as he then was), held that: -

‘The question for determination is whether the applicant has shown a cause for the re-instatement of the appeal. In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the Court and the avoidance of unnecessary delays in the administration of justice.’”