St Giles Medical Rehabilitation Centre vs Simon Gonde and Another (LC/H/678/25) [2026] ZWLC 2 (30 January 2026)

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT, NO LC/H/ HELD AT HARARE CASE NO LC/H/678/25 14 JANUARY 2026 & 21 JANUARY 2026 ST GILES MEDICAL REHABILITATION CENTRE APPLICANT AND SIMON GONDE 1st RESPONDENT FORWARD MUGABE N.O 2ND RESPONDENT Before the Honourable Justice Tsikwa For Appellant: M. Mbuyisa (Legal Practitioner) For Respondent: T. Chagonda (Legal Practitioner) TSIKWA, J: The was a court application for condonation for failure to file heads of argument, reinstatement of the appeal in LCH 801/25 and extension of time within which to file heads of argument in terms of rules 26(1), 36, and 46(b) of the Labour Court Rules, 2017 [hereinafter the Rules]. The following background facts provide the context for this application. BACKGROUND FACTS The 1st respondent was employed by the applicant as its Acting Chief Executive Officer ("CEO") from 19 June 2023 on a three-months fixed term contract. Following his good performance, the Board made a resolution on 14 September 2023 to appoint him for a further period of four (4) years, subject to yearly appraisals and reviews. A disagreement arose in relation to the package that was to apply to the 1st respondent as the CEO. Consequently, on 9 November 2023, the Board allegedly resolved to give the 1st respondent a 3-month contract pending discussions about the package. After reaching an agreement, the parties entered into a fixed-term contract for a period of 1year contrary to the 4-year period as per the board resolution. The board then made a resolution not to renew the contract. The contract was eventually terminated on 18 September 2024. The 1st respondent filed an unfair dismissal claim against the applicant with the Ministry of Labour for conciliation. Upon failure to agree, the matter was referred to the 2nd respondent for arbitration. On, 8 August 2024, the 2nd respondent issued an arbitral award in favour of the 1st respondent. Aggrieved by the award, the applicant noted an appeal against the award under case number LCH 801/25 on 26 August 2025. The 1st respondent filed its notice of response on 10 September 2025. The applicant alleges that he failed to file his heads of argument because the legal practitioner dealing with the matter was sick and absent from work. As a result, the matter was dismissed by the Registrar on 25 September 2025 for failure to file the heads of argument. In light of the above, the applicant filed the present application for condonation and reinstatement of the appeal before this honourable court. RELIEF SOUGHT The applicant’s prayer is for an order that: - The application for condonation for failure to file heads of argument in LCH 801/25 be and is hereby granted.The appeal by the appellant in LCH 801/25 be and is hereby reinstated.The applicant be and is hereby granted leave to file heads of argument in LCH 801/25 within five (5) days of granting of this order.There shall be no order as to costs. ISSUES OF DETERMINATION Whether or not the delay is inordinate.Whether or not the applicant has a reasonable explanation for the delay.Whether or not the applicant has prospects of success on the appeal.Whether or not the respondent will be prejudiced by the granting of the applicationWhether or not the balance of convenience favours the granting of the application THE RELEVANT LAW The law relating to condonation for non-compliance with the rules is well established in our jurisdiction. The position taken is that condonation is not for the mere asking. For the application to succeed, the applicant needs to fulfil certain requirements. These requirements were listed in Kombayi v Berkout, 1998 (1) ZLR 53 (S) as follows: i) The extent of the delay ii) The reasonableness of the explanation for the delay iii) The prospects of success Similarly, the court in Bishi v Secretary for Education, 1989 (2) ZLR 240 (HC) at 243 B-C provided further requirements which an applicant in a condonation application must satisfy: iv) the importance of the case; v) the convenience of the court – vi) the respondent’s interest in the finality of the judgement vii) and the avoidance of unnecessary delay in the administration of justice. The court must assess the requirements collectively and balance them against one another. In Grootboom v National Prosecuting Authority and Anor (2013)34 ILJ 282 (LAC) the court held as follows: “...where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.” 1. Whether or not the delay is inordinate and whether or not there is a reasonable explanation for the delay SUBMISSIONS The applicant submitted that they failed to file their heads of argument because the legal practitioner attending to the matter fell sick on the day. The applicant’s legal practitioner filed a doctor’s note which showed that he visited the doctor on the 24 September 2025 and was given leave of absence from 25 to 27 September 2025. The applicant explained that the illness was sudden such that the legal practitioner could not have been expected to give notice that he was going to fall sick or to assign another legal practitioner to the matter. In any event, the applicant argued that the legal practitioner was the only one seized with the matter and familiar with it to the extent that no other legal practitioner could have taken over a matter which they had not dealt with before. The applicant rejected the assertion by the respondent that the doctor’s note tendered was insufficient for failure to show the illness the legal practitioner was diagnosed with. It was the applicant’s submission that the 1st respondent himself had a similar doctor’s note and that in any event, a medical diagnosis is subject to the right to privacy. Relying on the case of The Pinnacle Property Holdings (Pvt) Ltd v Municipality of Redcliff HH-227-2014, it was argued that the applicant must not be penalised for the illness of their legal practitioner. In light of this, the applicant urged the court to accept the explanation as reasonable and to grant the application as requested. Counsel for the first respondent contended that the applicant’s legal practitioner had a personal stake in the matter, since he is the one alleged to have failed to file the heads of argument owing to illness. Further, it was argued that the explanation tendered by the applicant was unreasonable and incomplete. According to the 1st respondent, the doctor’s note granted the applicant’s legal practitioner leave of absence for the day after the dies induciae had expired. Thus, it was unknown whether counsel for the applicant had attended work on that particular day or the reason for the failure to act on the day in question. He contended that the applicant’s legal practitioner should have informed them as soon as reasonably possible that he had fallen ill and should have made alternative arrangements for another legal practitioner to prepare the heads of argument. Reference was made to the case of Sellsstrohm v Ministry of Housing & Urban Development & Ors SC-25-14 to that effect. According to the 1st respondent, the ex-post facto explanation that the applicant’s legal practitioner was given leave of absence does not assist the court. APPLICATION OF THE LAW The 1st respondent filed its notice of response on 10 September 2025. According to rule 26(1) of the Labour Court Rules, the applicant was supposed to file their heads of argument within 10 days of receiving the notice of response, which would be by 24 September 2025. From 24 September to the date of the present application, the applicant is 19 days out of time. Such a delay, of less than a month, cannot be said to be inordinate, taking into consideration that courts have condoned longer periods of delay where justifiable reasons were advanced. In any event, neither party contended that the delay is inordinately long. The applicant’s explanation that its legal practitioner fell sick on the day the heads of argument were due for filing is reasonable. This is so in consideration of the fact that the illness was unforeseen and counsel could not have been expected to give prior notice of incapacity. The 1st respondent argued that leave of absence was granted after the dies had expired and that it does not explain whether counsel was at work or was capable of filing on the due date. However, it is important to note that the medical note confirms that counsel consulted a doctor on the very day that the heads of argument were due. Thus, the short delay combined with a reasonable explanation for the delay weighs in favour of granting the application. 2. Whether or not the applicant has prospects of success on the appeal. SUBMISSIONS The applicant submitted that the appeal bears prospects of success as the 2nd respondent did not apply the law properly and disregarded evidence placed before him. Relying on the cases of Maswenya v Standard Chartered Bank SC-80-2004 and Zvokusekwa v Biita Rural District Council SC-44-2015, the applicant argued that such issues amount to points of law which are capable of being determined by this honourable court. It was the applicant’s submission that the arbitrator failed to consider that there was evidence of a fixed term contract signed between the parties for a period of one year. In terms of the caveat subscriptor rule, the applicant argued that the parties were bound to that contract and the board resolution which predated the contract did not have an effect on the contract. The applicant further submitted that the arbitrator should not have relied on the board resolution as the parties at that point had not yet agreed on an essential element of the contract, which was the employment package. The applicant contended that the board resolution which appointed the 1st respondent as CEO for a period of 4 years was superseded by the fixed-term contract that was signed by the parties. Citing the case of Wadi v Mnkandla & Ors HB-51-18, the applicant argued that the doctrine of sanctity of the contract should be observed in this case. Lastly, the applicant submitted that the 2nd respondent erred by awarding the 1st respondent damages in lieu of reinstatement for the remaining 3 years without a hearing on the quantification of the damages. The 1st respondent argued that the 2nd respondent correctly applied the law in holding that there was a legally binding board resolution in terms of which the 1st respondent was appointed for a further four-year term contract. Relying on the case of Reserve Bank of Zimbabwe v Mufudzi & Ors 29-18, the 1st respondent argued that the 1st ground appeal does not raise a point of law. Similarly, the 1st respondent argues that the 2nd ground of appeal has no merit as the board resolution purporting to give the 1st respondent a 3 months contract was never implemented and no fresh contract was drafted the following year. Therefore, it is the 1st respondent’s submission that the board resolution of 14 September 2023 remains valid and was not superseded by the resolution of 9 November 2023. Further, the 1st respondent makes reference to the case of Paperhole Investments v Pioneer High Bred Zim & Anor HH-338-20 to the effect that the written contract signed between the parties in December 2023 which endured for a year only was unlawful as it was not in accordance with the board resolution of 14 September 2023. In addition to that, the 1st respondent contended that the contract was ultra vires as it was presented by the Board chairperson who had no authority to recruit the CEO in terms of the applicant’s Constitution or to alter the board resolution of 14 September 2023. Reference was made to the cases of City of Harare v Augur Investments & Anor HH-727-18, Dynamos Football Club (Pvt) Ltd & Anor v Zimbabwe Football Association SC-093-05 and Andrew Mills v Tangada Tea Company HH-205-18 to the effect that actions contrary to an entity’s Constitution are null and void and that contracts entered into by unauthorised parties are unenforceable. The 1st respondent also submits that clause 8.5 of the contract entered into in December 2023 required a notice of non-renewal to be given which the applicant failed to do. Thus, it was argued that the grounds of appeal have no merit. In relation to the relief, the 1st respondent argued that damages in lieu of reinstatement is the appropriate remedy for unlawful dismissal where the employment relationship can no longer be salvaged. According to 1st respondent, quantification of damages follows after an arbitral award has already been made and it was competent to approach the Tribunal for quantification of damages in the absence of an agreement. APPLICATION OF THE LAW In an application for condonation, an applicant must demonstrate prospects of success in the main matter. What is required is to show that the case is prima facie arguable, it is not a full hearing on the main matter. In casu, the applicant argued that the board resolution appointing 1st rrespondent as CEO for four years did not constitute a binding contract of employment because an essential term, particularly the remuneration, had not been agreed on. The applicant has reasonable prospects of success in arguing that a board resolution on its own does not necessarily constitute a contract of employment. It is an established principle that for a contract to come into existence, there must be consensus on all the essential terms of the contract. See Delta Beverages (Pvt) Ltd v Pyvate Investments (Pvt) Ltd & Anor HH-135-18 at page 4. The issue of salary is indisputably an essential term of a contract of employment. The applicant’s argument that the board resolution lacked contractual force due to the absence of agreement on remuneration is therefore legally arguable. The applicant further argued that the 1-year fixed-term contract duly signed by the respondent is binding. The doctrine of sanctity of contract entails that courts must respect contracts freely entered into and should not lightly relieve parties from the consequences of their agreements. This was emphasised in Magodora & Ors v Care International Zimbabwe SC-24-14 where the court held as follows: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy.” Thus, the applicant’s contention that the written contract superseded prior negotiations and resolutions aligns with the principle that once parties reduce their agreement to writing, that document becomes the evidence of their rights and obligations. The 1st respondent’s assertion that he signed the contract in protest and whether such protest negates consensus is an issue that cannot be dismissed summarily. Further, the issue of whether or not the chairperson had authority to appoint the CEO or whether such authority was ratified by conduct is suitable for determination on the merits. The applicant has demonstrated that it has an arguable case on appeal. Accordingly, the requirement of prospects of success has been satisfied 3. Whether or not the balance of convenience favours the granting of the application SUBMISSIONS The applicant submitted that the principle that labour matters should not be dealt with on technicalities is applicable in this matter considering that the non-compliance was not deliberate and it was not caused by the applicant. In addition to that, the applicant submitted that granting the present application will promote finality in litigation as it will enable the appeal to be heard on the merits. The applicant argued that the matter is serious to both parties and requires that the matter be properly ventilated on the merits. The 1st respondent argued that it is in the interests of justice that the present application be dismissed as it amounts to an abuse of court process. In particular, the 1st respondent argued that the decisions made by the applicant’s Board Chair had no legal basis. The 1st respondent further argued that there must be finality to litigation as the matter has been dragging for over a year and they have been unnecessarily put out of pocket. APPLICATION OF THE LAW As previously stated, the factors in an application for condonation must be considered cumulatively. The relatively short delay reduces the inconvenience suffered by the respondent and strengthens the applicant’s position. In addition to that, the explanation for the delay is bona fide and supported by evidence. The applicant has also demonstrated reasonable prospects of success and the court is satisfied that the matter is of importance to both parties. DISPOSITION In view of the foregoing, the Court finds that the requirements for an application for condonation have been met. Wherefore, it is ordered as follows: The Application for condonation for late filing of heads of argument be and is hereby granted.The Applicant shall file the heads of argument within 10 days from the date of this order.There shall be no order as to costs. Mtetwa & Nyambirai, Applicant’s Legal Practitioners Atherstone & Cook, 1st Respondent’s Legal Practitioners TSIKWA J IN THE LABOUR COURT OF ZIMBABWE JUDGMENT, NO LC/H/ HELD AT HARARE CASE NO LC/H/678/25 14 JANUARY 2026 & 21 JANUARY 2026 ST GILES MEDICAL REHABILITATION CENTRE APPLICANT AND SIMON GONDE 1st RESPONDENT FORWARD MUGABE N.O 2ND RESPONDENT Before the Honourable Justice Tsikwa For Appellant: M. Mbuyisa (Legal Practitioner) For Respondent: T. Chagonda (Legal Practitioner) TSIKWA, J: The was a court application for condonation for failure to file heads of argument, reinstatement of the appeal in LCH 801/25 and extension of time within which to file heads of argument in terms of rules 26(1), 36, and 46(b) of the Labour Court Rules, 2017 [hereinafter the Rules]. The following background facts provide the context for this application. # Before the Honourable Justice Tsikwa For Appellant: M. Mbuyisa (Legal Practitioner) For Respondent: T. Chagonda (Legal Practitioner) TSIKWA, J: The was a court application for condonation for failure to file heads of argument, reinstatement of the appeal in LCH 801/25 and extension of time within which to file heads of argument in terms of rules 26(1), 36, and 46(b) of the Labour Court Rules, 2017 [hereinafter the Rules]. The following background facts provide the context for this application. BACKGROUND FACTS The 1st respondent was employed by the applicant as its Acting Chief Executive Officer ("CEO") from 19 June 2023 on a three-months fixed term contract. Following his good performance, the Board made a resolution on 14 September 2023 to appoint him for a further period of four (4) years, subject to yearly appraisals and reviews. A disagreement arose in relation to the package that was to apply to the 1st respondent as the CEO. Consequently, on 9 November 2023, the Board allegedly resolved to give the 1st respondent a 3-month contract pending discussions about the package. After reaching an agreement, the parties entered into a fixed-term contract for a period of 1year contrary to the 4-year period as per the board resolution. The board then made a resolution not to renew the contract. The contract was eventually terminated on 18 September 2024. The 1st respondent filed an unfair dismissal claim against the applicant with the Ministry of Labour for conciliation. Upon failure to agree, the matter was referred to the 2nd respondent for arbitration. On, 8 August 2024, the 2nd respondent issued an arbitral award in favour of the 1st respondent. Aggrieved by the award, the applicant noted an appeal against the award under case number LCH 801/25 on 26 August 2025. The 1st respondent filed its notice of response on 10 September 2025. The applicant alleges that he failed to file his heads of argument because the legal practitioner dealing with the matter was sick and absent from work. As a result, the matter was dismissed by the Registrar on 25 September 2025 for failure to file the heads of argument. In light of the above, the applicant filed the present application for condonation and reinstatement of the appeal before this honourable court. # BACKGROUND FACTS The 1st respondent was employed by the applicant as its Acting Chief Executive Officer ("CEO") from 19 June 2023 on a three-months fixed term contract. Following his good performance, the Board made a resolution on 14 September 2023 to appoint him for a further period of four (4) years, subject to yearly appraisals and reviews. A disagreement arose in relation to the package that was to apply to the 1st respondent as the CEO. Consequently, on 9 November 2023, the Board allegedly resolved to give the 1st respondent a 3-month contract pending discussions about the package. After reaching an agreement, the parties entered into a fixed-term contract for a period of 1year contrary to the 4-year period as per the board resolution. The board then made a resolution not to renew the contract. The contract was eventually terminated on 18 September 2024. The 1st respondent filed an unfair dismissal claim against the applicant with the Ministry of Labour for conciliation. Upon failure to agree, the matter was referred to the 2nd respondent for arbitration. On, 8 August 2024, the 2nd respondent issued an arbitral award in favour of the 1st respondent. Aggrieved by the award, the applicant noted an appeal against the award under case number LCH 801/25 on 26 August 2025. The 1st respondent filed its notice of response on 10 September 2025. The applicant alleges that he failed to file his heads of argument because the legal practitioner dealing with the matter was sick and absent from work. As a result, the matter was dismissed by the Registrar on 25 September 2025 for failure to file the heads of argument. In light of the above, the applicant filed the present application for condonation and reinstatement of the appeal before this honourable court. RELIEF SOUGHT The applicant’s prayer is for an order that: - The application for condonation for failure to file heads of argument in LCH 801/25 be and is hereby granted.The appeal by the appellant in LCH 801/25 be and is hereby reinstated.The applicant be and is hereby granted leave to file heads of argument in LCH 801/25 within five (5) days of granting of this order.There shall be no order as to costs. ISSUES OF DETERMINATION Whether or not the delay is inordinate.Whether or not the applicant has a reasonable explanation for the delay.Whether or not the applicant has prospects of success on the appeal.Whether or not the respondent will be prejudiced by the granting of the applicationWhether or not the balance of convenience favours the granting of the application THE RELEVANT LAW The law relating to condonation for non-compliance with the rules is well established in our jurisdiction. The position taken is that condonation is not for the mere asking. For the application to succeed, the applicant needs to fulfil certain requirements. These requirements were listed in Kombayi v Berkout, 1998 (1) ZLR 53 (S) as follows: i) The extent of the delay ii) The reasonableness of the explanation for the delay iii) The prospects of success Similarly, the court in Bishi v Secretary for Education, 1989 (2) ZLR 240 (HC) at 243 B-C provided further requirements which an applicant in a condonation application must satisfy: iv) the importance of the case; v) the convenience of the court – vi) the respondent’s interest in the finality of the judgement vii) and the avoidance of unnecessary delay in the administration of justice. The court must assess the requirements collectively and balance them against one another. In Grootboom v National Prosecuting Authority and Anor (2013)34 ILJ 282 (LAC) the court held as follows: “...where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.” 1. Whether or not the delay is inordinate and whether or not there is a reasonable explanation for the delay # RELIEF SOUGHT The applicant’s prayer is for an order that: - The application for condonation for failure to file heads of argument in LCH 801/25 be and is hereby granted. The appeal by the appellant in LCH 801/25 be and is hereby reinstated. The applicant be and is hereby granted leave to file heads of argument in LCH 801/25 within five (5) days of granting of this order. There shall be no order as to costs. ISSUES OF DETERMINATION Whether or not the delay is inordinate. Whether or not the applicant has a reasonable explanation for the delay. Whether or not the applicant has prospects of success on the appeal. Whether or not the respondent will be prejudiced by the granting of the application Whether or not the balance of convenience favours the granting of the application THE RELEVANT LAW The law relating to condonation for non-compliance with the rules is well established in our jurisdiction. The position taken is that condonation is not for the mere asking. For the application to succeed, the applicant needs to fulfil certain requirements. These requirements were listed in Kombayi v Berkout, 1998 (1) ZLR 53 (S) as follows: i) The extent of the delay ii) The reasonableness of the explanation for the delay iii) The prospects of success Similarly, the court in Bishi v Secretary for Education, 1989 (2) ZLR 240 (HC) at 243 B-C provided further requirements which an applicant in a condonation application must satisfy: iv) the importance of the case; v) the convenience of the court – vi) the respondent’s interest in the finality of the judgement vii) and the avoidance of unnecessary delay in the administration of justice. The court must assess the requirements collectively and balance them against one another. In Grootboom v National Prosecuting Authority and Anor (2013)34 ILJ 282 (LAC) the court held as follows: “...where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.” 1. Whether or not the delay is inordinate and whether or not there is a reasonable explanation for the delay SUBMISSIONS The applicant submitted that they failed to file their heads of argument because the legal practitioner attending to the matter fell sick on the day. The applicant’s legal practitioner filed a doctor’s note which showed that he visited the doctor on the 24 September 2025 and was given leave of absence from 25 to 27 September 2025. The applicant explained that the illness was sudden such that the legal practitioner could not have been expected to give notice that he was going to fall sick or to assign another legal practitioner to the matter. In any event, the applicant argued that the legal practitioner was the only one seized with the matter and familiar with it to the extent that no other legal practitioner could have taken over a matter which they had not dealt with before. The applicant rejected the assertion by the respondent that the doctor’s note tendered was insufficient for failure to show the illness the legal practitioner was diagnosed with. It was the applicant’s submission that the 1st respondent himself had a similar doctor’s note and that in any event, a medical diagnosis is subject to the right to privacy. Relying on the case of The Pinnacle Property Holdings (Pvt) Ltd v Municipality of Redcliff HH-227-2014, it was argued that the applicant must not be penalised for the illness of their legal practitioner. In light of this, the applicant urged the court to accept the explanation as reasonable and to grant the application as requested. Counsel for the first respondent contended that the applicant’s legal practitioner had a personal stake in the matter, since he is the one alleged to have failed to file the heads of argument owing to illness. Further, it was argued that the explanation tendered by the applicant was unreasonable and incomplete. According to the 1st respondent, the doctor’s note granted the applicant’s legal practitioner leave of absence for the day after the dies induciae had expired. Thus, it was unknown whether counsel for the applicant had attended work on that particular day or the reason for the failure to act on the day in question. He contended that the applicant’s legal practitioner should have informed them as soon as reasonably possible that he had fallen ill and should have made alternative arrangements for another legal practitioner to prepare the heads of argument. Reference was made to the case of Sellsstrohm v Ministry of Housing & Urban Development & Ors SC-25-14 to that effect. According to the 1st respondent, the ex-post facto explanation that the applicant’s legal practitioner was given leave of absence does not assist the court. # SUBMISSIONS The applicant submitted that they failed to file their heads of argument because the legal practitioner attending to the matter fell sick on the day. The applicant’s legal practitioner filed a doctor’s note which showed that he visited the doctor on the 24 September 2025 and was given leave of absence from 25 to 27 September 2025. The applicant explained that the illness was sudden such that the legal practitioner could not have been expected to give notice that he was going to fall sick or to assign another legal practitioner to the matter. In any event, the applicant argued that the legal practitioner was the only one seized with the matter and familiar with it to the extent that no other legal practitioner could have taken over a matter which they had not dealt with before. The applicant rejected the assertion by the respondent that the doctor’s note tendered was insufficient for failure to show the illness the legal practitioner was diagnosed with. It was the applicant’s submission that the 1st respondent himself had a similar doctor’s note and that in any event, a medical diagnosis is subject to the right to privacy. Relying on the case of The Pinnacle Property Holdings (Pvt) Ltd v Municipality of Redcliff HH-227-2014, it was argued that the applicant must not be penalised for the illness of their legal practitioner. In light of this, the applicant urged the court to accept the explanation as reasonable and to grant the application as requested. Counsel for the first respondent contended that the applicant’s legal practitioner had a personal stake in the matter, since he is the one alleged to have failed to file the heads of argument owing to illness. Further, it was argued that the explanation tendered by the applicant was unreasonable and incomplete. According to the 1st respondent, the doctor’s note granted the applicant’s legal practitioner leave of absence for the day after the dies induciae had expired. Thus, it was unknown whether counsel for the applicant had attended work on that particular day or the reason for the failure to act on the day in question. He contended that the applicant’s legal practitioner should have informed them as soon as reasonably possible that he had fallen ill and should have made alternative arrangements for another legal practitioner to prepare the heads of argument. Reference was made to the case of Sellsstrohm v Ministry of Housing & Urban Development & Ors SC-25-14 to that effect. According to the 1st respondent, the ex-post facto explanation that the applicant’s legal practitioner was given leave of absence does not assist the court. APPLICATION OF THE LAW The 1st respondent filed its notice of response on 10 September 2025. According to rule 26(1) of the Labour Court Rules, the applicant was supposed to file their heads of argument within 10 days of receiving the notice of response, which would be by 24 September 2025. From 24 September to the date of the present application, the applicant is 19 days out of time. Such a delay, of less than a month, cannot be said to be inordinate, taking into consideration that courts have condoned longer periods of delay where justifiable reasons were advanced. In any event, neither party contended that the delay is inordinately long. The applicant’s explanation that its legal practitioner fell sick on the day the heads of argument were due for filing is reasonable. This is so in consideration of the fact that the illness was unforeseen and counsel could not have been expected to give prior notice of incapacity. The 1st respondent argued that leave of absence was granted after the dies had expired and that it does not explain whether counsel was at work or was capable of filing on the due date. However, it is important to note that the medical note confirms that counsel consulted a doctor on the very day that the heads of argument were due. Thus, the short delay combined with a reasonable explanation for the delay weighs in favour of granting the application. 2. Whether or not the applicant has prospects of success on the appeal. # APPLICATION OF THE LAW The 1st respondent filed its notice of response on 10 September 2025. According to rule 26(1) of the Labour Court Rules, the applicant was supposed to file their heads of argument within 10 days of receiving the notice of response, which would be by 24 September 2025. From 24 September to the date of the present application, the applicant is 19 days out of time. Such a delay, of less than a month, cannot be said to be inordinate, taking into consideration that courts have condoned longer periods of delay where justifiable reasons were advanced. In any event, neither party contended that the delay is inordinately long. The applicant’s explanation that its legal practitioner fell sick on the day the heads of argument were due for filing is reasonable. This is so in consideration of the fact that the illness was unforeseen and counsel could not have been expected to give prior notice of incapacity. The 1st respondent argued that leave of absence was granted after the dies had expired and that it does not explain whether counsel was at work or was capable of filing on the due date. However, it is important to note that the medical note confirms that counsel consulted a doctor on the very day that the heads of argument were due. Thus, the short delay combined with a reasonable explanation for the delay weighs in favour of granting the application. 2. Whether or not the applicant has prospects of success on the appeal. SUBMISSIONS The applicant submitted that the appeal bears prospects of success as the 2nd respondent did not apply the law properly and disregarded evidence placed before him. Relying on the cases of Maswenya v Standard Chartered Bank SC-80-2004 and Zvokusekwa v Biita Rural District Council SC-44-2015, the applicant argued that such issues amount to points of law which are capable of being determined by this honourable court. It was the applicant’s submission that the arbitrator failed to consider that there was evidence of a fixed term contract signed between the parties for a period of one year. In terms of the caveat subscriptor rule, the applicant argued that the parties were bound to that contract and the board resolution which predated the contract did not have an effect on the contract. The applicant further submitted that the arbitrator should not have relied on the board resolution as the parties at that point had not yet agreed on an essential element of the contract, which was the employment package. The applicant contended that the board resolution which appointed the 1st respondent as CEO for a period of 4 years was superseded by the fixed-term contract that was signed by the parties. Citing the case of Wadi v Mnkandla & Ors HB-51-18, the applicant argued that the doctrine of sanctity of the contract should be observed in this case. Lastly, the applicant submitted that the 2nd respondent erred by awarding the 1st respondent damages in lieu of reinstatement for the remaining 3 years without a hearing on the quantification of the damages. The 1st respondent argued that the 2nd respondent correctly applied the law in holding that there was a legally binding board resolution in terms of which the 1st respondent was appointed for a further four-year term contract. Relying on the case of Reserve Bank of Zimbabwe v Mufudzi & Ors 29-18, the 1st respondent argued that the 1st ground appeal does not raise a point of law. Similarly, the 1st respondent argues that the 2nd ground of appeal has no merit as the board resolution purporting to give the 1st respondent a 3 months contract was never implemented and no fresh contract was drafted the following year. Therefore, it is the 1st respondent’s submission that the board resolution of 14 September 2023 remains valid and was not superseded by the resolution of 9 November 2023. Further, the 1st respondent makes reference to the case of Paperhole Investments v Pioneer High Bred Zim & Anor HH-338-20 to the effect that the written contract signed between the parties in December 2023 which endured for a year only was unlawful as it was not in accordance with the board resolution of 14 September 2023. In addition to that, the 1st respondent contended that the contract was ultra vires as it was presented by the Board chairperson who had no authority to recruit the CEO in terms of the applicant’s Constitution or to alter the board resolution of 14 September 2023. Reference was made to the cases of City of Harare v Augur Investments & Anor HH-727-18, Dynamos Football Club (Pvt) Ltd & Anor v Zimbabwe Football Association SC-093-05 and Andrew Mills v Tangada Tea Company HH-205-18 to the effect that actions contrary to an entity’s Constitution are null and void and that contracts entered into by unauthorised parties are unenforceable. The 1st respondent also submits that clause 8.5 of the contract entered into in December 2023 required a notice of non-renewal to be given which the applicant failed to do. Thus, it was argued that the grounds of appeal have no merit. In relation to the relief, the 1st respondent argued that damages in lieu of reinstatement is the appropriate remedy for unlawful dismissal where the employment relationship can no longer be salvaged. According to 1st respondent, quantification of damages follows after an arbitral award has already been made and it was competent to approach the Tribunal for quantification of damages in the absence of an agreement. # SUBMISSIONS The applicant submitted that the appeal bears prospects of success as the 2nd respondent did not apply the law properly and disregarded evidence placed before him. Relying on the cases of Maswenya v Standard Chartered Bank SC-80-2004 and Zvokusekwa v Biita Rural District Council SC-44-2015, the applicant argued that such issues amount to points of law which are capable of being determined by this honourable court. It was the applicant’s submission that the arbitrator failed to consider that there was evidence of a fixed term contract signed between the parties for a period of one year. In terms of the caveat subscriptor rule, the applicant argued that the parties were bound to that contract and the board resolution which predated the contract did not have an effect on the contract. The applicant further submitted that the arbitrator should not have relied on the board resolution as the parties at that point had not yet agreed on an essential element of the contract, which was the employment package. The applicant contended that the board resolution which appointed the 1st respondent as CEO for a period of 4 years was superseded by the fixed-term contract that was signed by the parties. Citing the case of Wadi v Mnkandla & Ors HB-51-18, the applicant argued that the doctrine of sanctity of the contract should be observed in this case. Lastly, the applicant submitted that the 2nd respondent erred by awarding the 1st respondent damages in lieu of reinstatement for the remaining 3 years without a hearing on the quantification of the damages. The 1st respondent argued that the 2nd respondent correctly applied the law in holding that there was a legally binding board resolution in terms of which the 1st respondent was appointed for a further four-year term contract. Relying on the case of Reserve Bank of Zimbabwe v Mufudzi & Ors 29-18, the 1st respondent argued that the 1st ground appeal does not raise a point of law. Similarly, the 1st respondent argues that the 2nd ground of appeal has no merit as the board resolution purporting to give the 1st respondent a 3 months contract was never implemented and no fresh contract was drafted the following year. Therefore, it is the 1st respondent’s submission that the board resolution of 14 September 2023 remains valid and was not superseded by the resolution of 9 November 2023. Further, the 1st respondent makes reference to the case of Paperhole Investments v Pioneer High Bred Zim & Anor HH-338-20 to the effect that the written contract signed between the parties in December 2023 which endured for a year only was unlawful as it was not in accordance with the board resolution of 14 September 2023. In addition to that, the 1st respondent contended that the contract was ultra vires as it was presented by the Board chairperson who had no authority to recruit the CEO in terms of the applicant’s Constitution or to alter the board resolution of 14 September 2023. Reference was made to the cases of City of Harare v Augur Investments & Anor HH-727-18, Dynamos Football Club (Pvt) Ltd & Anor v Zimbabwe Football Association SC-093-05 and Andrew Mills v Tangada Tea Company HH-205-18 to the effect that actions contrary to an entity’s Constitution are null and void and that contracts entered into by unauthorised parties are unenforceable. The 1st respondent also submits that clause 8.5 of the contract entered into in December 2023 required a notice of non-renewal to be given which the applicant failed to do. Thus, it was argued that the grounds of appeal have no merit. In relation to the relief, the 1st respondent argued that damages in lieu of reinstatement is the appropriate remedy for unlawful dismissal where the employment relationship can no longer be salvaged. According to 1st respondent, quantification of damages follows after an arbitral award has already been made and it was competent to approach the Tribunal for quantification of damages in the absence of an agreement. APPLICATION OF THE LAW In an application for condonation, an applicant must demonstrate prospects of success in the main matter. What is required is to show that the case is prima facie arguable, it is not a full hearing on the main matter. In casu, the applicant argued that the board resolution appointing 1st rrespondent as CEO for four years did not constitute a binding contract of employment because an essential term, particularly the remuneration, had not been agreed on. The applicant has reasonable prospects of success in arguing that a board resolution on its own does not necessarily constitute a contract of employment. It is an established principle that for a contract to come into existence, there must be consensus on all the essential terms of the contract. See Delta Beverages (Pvt) Ltd v Pyvate Investments (Pvt) Ltd & Anor HH-135-18 at page 4. The issue of salary is indisputably an essential term of a contract of employment. The applicant’s argument that the board resolution lacked contractual force due to the absence of agreement on remuneration is therefore legally arguable. The applicant further argued that the 1-year fixed-term contract duly signed by the respondent is binding. The doctrine of sanctity of contract entails that courts must respect contracts freely entered into and should not lightly relieve parties from the consequences of their agreements. This was emphasised in Magodora & Ors v Care International Zimbabwe SC-24-14 where the court held as follows: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy.” Thus, the applicant’s contention that the written contract superseded prior negotiations and resolutions aligns with the principle that once parties reduce their agreement to writing, that document becomes the evidence of their rights and obligations. The 1st respondent’s assertion that he signed the contract in protest and whether such protest negates consensus is an issue that cannot be dismissed summarily. Further, the issue of whether or not the chairperson had authority to appoint the CEO or whether such authority was ratified by conduct is suitable for determination on the merits. The applicant has demonstrated that it has an arguable case on appeal. Accordingly, the requirement of prospects of success has been satisfied 3. Whether or not the balance of convenience favours the granting of the application # APPLICATION OF THE LAW In an application for condonation, an applicant must demonstrate prospects of success in the main matter. What is required is to show that the case is prima facie arguable, it is not a full hearing on the main matter. In casu, the applicant argued that the board resolution appointing 1st rrespondent as CEO for four years did not constitute a binding contract of employment because an essential term, particularly the remuneration, had not been agreed on. The applicant has reasonable prospects of success in arguing that a board resolution on its own does not necessarily constitute a contract of employment. It is an established principle that for a contract to come into existence, there must be consensus on all the essential terms of the contract. See Delta Beverages (Pvt) Ltd v Pyvate Investments (Pvt) Ltd & Anor HH-135-18 at page 4. The issue of salary is indisputably an essential term of a contract of employment. The applicant’s argument that the board resolution lacked contractual force due to the absence of agreement on remuneration is therefore legally arguable. The applicant further argued that the 1-year fixed-term contract duly signed by the respondent is binding. The doctrine of sanctity of contract entails that courts must respect contracts freely entered into and should not lightly relieve parties from the consequences of their agreements. This was emphasised in Magodora & Ors v Care International Zimbabwe SC-24-14 where the court held as follows: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy.” Thus, the applicant’s contention that the written contract superseded prior negotiations and resolutions aligns with the principle that once parties reduce their agreement to writing, that document becomes the evidence of their rights and obligations. The 1st respondent’s assertion that he signed the contract in protest and whether such protest negates consensus is an issue that cannot be dismissed summarily. Further, the issue of whether or not the chairperson had authority to appoint the CEO or whether such authority was ratified by conduct is suitable for determination on the merits. The applicant has demonstrated that it has an arguable case on appeal. Accordingly, the requirement of prospects of success has been satisfied 3. Whether or not the balance of convenience favours the granting of the application SUBMISSIONS The applicant submitted that the principle that labour matters should not be dealt with on technicalities is applicable in this matter considering that the non-compliance was not deliberate and it was not caused by the applicant. In addition to that, the applicant submitted that granting the present application will promote finality in litigation as it will enable the appeal to be heard on the merits. The applicant argued that the matter is serious to both parties and requires that the matter be properly ventilated on the merits. The 1st respondent argued that it is in the interests of justice that the present application be dismissed as it amounts to an abuse of court process. In particular, the 1st respondent argued that the decisions made by the applicant’s Board Chair had no legal basis. The 1st respondent further argued that there must be finality to litigation as the matter has been dragging for over a year and they have been unnecessarily put out of pocket. # SUBMISSIONS The applicant submitted that the principle that labour matters should not be dealt with on technicalities is applicable in this matter considering that the non-compliance was not deliberate and it was not caused by the applicant. In addition to that, the applicant submitted that granting the present application will promote finality in litigation as it will enable the appeal to be heard on the merits. The applicant argued that the matter is serious to both parties and requires that the matter be properly ventilated on the merits. The 1st respondent argued that it is in the interests of justice that the present application be dismissed as it amounts to an abuse of court process. In particular, the 1st respondent argued that the decisions made by the applicant’s Board Chair had no legal basis. The 1st respondent further argued that there must be finality to litigation as the matter has been dragging for over a year and they have been unnecessarily put out of pocket. APPLICATION OF THE LAW As previously stated, the factors in an application for condonation must be considered cumulatively. The relatively short delay reduces the inconvenience suffered by the respondent and strengthens the applicant’s position. In addition to that, the explanation for the delay is bona fide and supported by evidence. The applicant has also demonstrated reasonable prospects of success and the court is satisfied that the matter is of importance to both parties. # APPLICATION OF THE LAW As previously stated, the factors in an application for condonation must be considered cumulatively. The relatively short delay reduces the inconvenience suffered by the respondent and strengthens the applicant’s position. In addition to that, the explanation for the delay is bona fide and supported by evidence. The applicant has also demonstrated reasonable prospects of success and the court is satisfied that the matter is of importance to both parties. DISPOSITION In view of the foregoing, the Court finds that the requirements for an application for condonation have been met. Wherefore, it is ordered as follows: The Application for condonation for late filing of heads of argument be and is hereby granted.The Applicant shall file the heads of argument within 10 days from the date of this order.There shall be no order as to costs. Mtetwa & Nyambirai, Applicant’s Legal Practitioners Atherstone & Cook, 1st Respondent’s Legal Practitioners # DISPOSITION In view of the foregoing, the Court finds that the requirements for an application for condonation have been met. Wherefore, it is ordered as follows: The Application for condonation for late filing of heads of argument be and is hereby granted. The Applicant shall file the heads of argument within 10 days from the date of this order. There shall be no order as to costs. Mtetwa & Nyambirai, Applicant’s Legal Practitioners Atherstone & Cook, 1st Respondent’s Legal Practitioners TSIKWA J # TSIKWA J