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 non- compliance, 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.’” 27. However, before these factors can be meaningfully examined, there must exist a competent matter in respect of which condonation may validly be granted. Where the proceedings are a nullity, any subsequent application founded upon them is equally void. This position was aptly stated in The Garrat Trust v Creative Credit (Pvt) Ltd SC 146/21 at p 6, wherein BHUNU JA noted the following with regards to null proceedings: “The leading case on the effect and import of void proceedings is Mcfoy v United Africa Co Ltd. In that case LORD DENNING observed that: Judgment No. SC 02/26 Civil Appeal No. SC 364/25 11 ‘If an act is void, then, it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad. You cannot put something on nothing and expect it to stay there. It will collapse.’ (My emphasis). On the basis of the law as articulated through the cases once the learned judge had taken the correct view that the main application upon which the counter application was founded was a nullity, he ought to have declared the application a nullity and stop there. Since the counterclaim was founded on a nullity it had no independent existence of its own. It would therefore have collapsed together with the main application as it was riding on the back of the main application. Faced with the same situation in Care International Zimbabwe v ZIMRA & Ors MTSHIYA J sitting in the same court had this to say: ‘I agree with the first respondent that there is no valid application before the court and accordingly the rest of the issues raised by the respondents cannot be delved into. The finding estops me from going any further.’ MTSHIYA J was undoubtedly correct that once an application is found to be fatally defective the court cannot go on to determine any other issues based on the defective application.” 28. The above authority reinforces the principle that since the order sought to be altered by the appellant was a nullity, the application for condonation was also a nullity. Therefore, the court is not enjoined to make an inquiry into other issues which include the requirements for granting condonation. It is trite that when a court finds a point that is dispositive of the matter, it must end there. In the case Gospel of God International 1932 v Mungweru & Ors SC 99/19, at p 6, MAKARAU JA (as she then was) noted that: “The above position is derived from the settled practice of the courts in this jurisdiction. It is the settled practice when writing a judgment to decide no more than what is absolutely necessary for the resolution of the legal dispute before the court. (See Nzara and Others v Kashumba N.O. and Others SC 18/18 and the authorities cited therein with approval). Thus, for instance, if the court has no jurisdiction, no matter how interesting the legal point being raised by the parties, the settled practice is for the court to merely decline jurisdiction and withhold expressing an opinion on the interesting legal points. Similarly with findings such as in casu, that the application is ill founded, the court has no basis for proceeding any further. A finding on a dispositive issue should mark the end of the court’s enquiry and of its curiosity too.” (my emphasis) Judgment No. SC 02/26 Civil Appeal No. SC 364/25 12 29. The above authorities underscore the principle of nullity which reinforces that once proceedings or an act is declared void, it is legally non-existent and incapable of producing any valid consequences. As stated in McFoy v United Africa Co Ltd supra , a void act is “incurably bad,” and anything founded upon it must also collapse. Thus, once a court determines that the main proceedings were a nullity, it must refrain from considering any derivative or dependent claims, since they have no legal foundation to stand on. 30. It is trite that an application for correction or amendment may be allowed in circumstances where a party is misdescribed, provided that such correction is not prejudicial to the other party. In Mapondera & Ors v Freda Rebecca Gold Mine Holdings (Private) Limited SC 81/22 at p 11, the Supreme Court held as follows. “I could go on and on but the principle of law established by case law is clear. Where an existing entity is inadvertently misdescribed in judicial proceedings it is permissible to apply for correction of the anomaly in good faith provided that there is no irreparable prejudice to the other party.” 31. Therefore, proceedings can only be saved where the misdescription is minor to the extent that the party miscited or misdescribed is easily ascertainable. The present case is distinguished from the Mapondera case supra where there was a minor omission. In casu, a whole different and nonexistent party was cited namely ‘Agriculture Development Bank’ instead of AFC Commercial Bank t/a Agribank. Such a gross error cannot be condoned. 32. In the present case, the appellant sought condonation for the late filing of an application for the alteration of judgment under LC/H/34/09. The court a quo correctly found that the order sought to be altered was granted against a non-existent entity, namely “Agriculture Judgment No. SC 02/26 Civil Appeal No. SC 364/25 13 Development Bank.” The respondent before the court, as properly constituted, is AFC Commercial Bank of Zimbabwe t/a Agribank. The variation between the correct identity of the respondent and the one cited by the appellant is so huge that it cannot be condoned. 33. It is an established principle of law that a court cannot grant relief against, or in favour of a party that does not exist at law. This position was underscored in the case of Gariya Safaris (Pvt) Ltd v Van Wyke 1996 (2) ZLR 246(H) at 249 G, where it was stated as follows: “A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendants, the summons is null and void ab initio,” 34. The appellant, in his founding papers, conceded that the order he sought to vary was unenforceable as it had been granted against a non-existent party. Having made such an admission, the appellant effectively acknowledged that there was no valid judgment capable of alteration. The doctrine of nullity dictates that what is void ab initio cannot be resuscitated or validated by subsequent procedural steps. A nullity cannot be amended, confirmed or condoned. The maxim ex nihilo nihil fit, loosely translated to mean that nothing can come from nothing, aptly applies in casu. 35. Accordingly, once the court a quo established that the underlying order was void, the question of condonation became irrelevant. It would have served no purpose for the court to inquire into the degree of delay, the explanation for non-compliance or the prospects of success, since there was no competent judgment to alter. The exercise of discretion to condone is confined to proceedings that are properly before the court. The court a quo therefore acted within its discretion in declining to entertain the application further. Judgment No. SC 02/26 Civil Appeal No. SC 364/25 14 36. It is important to note that the appellant’s argument that the misdescription of the respondent was a mere clerical error mutual to both parties is not supported by the record. The purported respondent, “Agriculture Development Bank,” was not a registered legal entity at the time the original proceedings were instituted. The correct name of the respondent was readily available to the appellant, who was its employee and therefore presumed to know the corporate identity of his employer. The error was not minor or inadvertent but went to the very root of the proceedings, rendering them a nullity. 37. In addition, even if the court were to accept that the appellant’s application for condonation had prospects of success, such prospects could not cure the foundational defect of nullity. Courts cannot exercise jurisdiction over that which never existed in law. Accordingly, this Court finds no misdirection in the manner the court a quo exercised its discretion in dismissing the application for condonation. Therefore, the first ground of appeal is held to be meritless. 2. Whether or not the court a quo dealt with an issue that was not placed before it. 38. In the second ground of appeal, the appellant contended that the court a quo erred by pronouncing on the validity of the original proceedings when that issue was not before it. This contention is without merit. The respondent had raised, as a preliminary point, that the order under LC/H/34/09 was unenforceable because it was granted against a non-existent entity. The question of nullity, therefore, lay squarely before the court for determination. 39. The appellant accuses the court a quo of going on a frolic of its own and determining a matter that was not placed before it. It is trite that a court must make a decision based on Judgment No. SC 02/26 Civil Appeal No. SC 364/25 15 facts and issues that are before it. In the case of Central African Building Society v Stone & Ors, SC 15/21 on p 13 at para 29, the Court correctly stated that: “It is trite that the court’s duty is to determine disputes as presented before it and not to go on a frolic of its own.” 40. The main and only duty of a court is to adjudicate on the issues that would have been brought before it by parties and not to formulate issues for the parties in the proceedings before it. In Nzara v Kashumba N.O. & Ors 2018 (1) ZLR 194 (S) at 201G-202B, it was stated as follows: “This position has become settled in our law. Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of court require that such an order be specific in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to the facts presented to it by the parties in determining the parties’ issues. It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties . The judgment of the court a quo unfortunately fell short of these guiding principles. In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.” (my emphasis) 43. It is clear from the above that the court ought to only determine issues placed before it. A perusal of the record shows that the identity of the respondent was a live issue before the court a quo . A court seized with a preliminary objection challenging the competence or validity of proceedings is duty-bound to determine it in limine before addressing the merits. It would have been an exercise in futility for the court a quo to assess the condonation requirements while the substratum of the application with regard to the existence of a valid, enforceable judgment remained in question. The court properly addressed the point of law Judgment No. SC 02/26 Civil Appeal No. SC 364/25 16 raised and upon finding that the judgment was void ab initio , correctly struck off the application. 42. Contrary to the appellant’s assertion, the court a quo did not exceed its mandate but rather acted in accordance with its duty to determine whether there existed a proper basis for granting the relief sought. Once it found that the order the appellant sought to alter was a nullity, it was precluded from granting any condonation or ancillary relief. In the premise, the second ground of appeal is also devoid of merit. DISPOSITION 44. In light of the foregoing, this Court is satisfied that the court a quo properly exercised its discretion in dismissing the application for condonation. The application sought to alter a judgment that was void ab initio, and it is trite that a nullity cannot be varied, corrected or condoned. The finding that there was no valid order capable of alteration was sound. 45. Accordingly, it is ordered as follows: “The appeal be and is hereby dismissed with costs.” MAVANGIRA JA : I agree BHUNU JA : I agree Judgment No. SC 02/26 Civil Appeal No. SC 364/25 17 Muvingi Mugadza Legal Practitioners, appellant’s legal practitioners Gambe Law Group, respondent’s legal practitioners