The Supreme Court of Zimbabwe has dismissed former AFC Commercial Bank employee Innocent Chiunga’s appeal, ruling that a 2009 Labour Court judgment in his long-running dispute with the bank was unenforceable because it had been issued against a non-existent entity.

The apex court upheld the lower court’s finding that the original order, granted against “Agriculture Development Bank” instead of AFC Commercial Bank of Zimbabwe trading as Agribank, was void from the outset and could not be amended.

In a judgment delivered by Justice Joseph Musakwa, with Justices Susan Mavangira and Chinembiri Bhunu concurring, the Supreme Court upheld a Labour Court decision that rejected Chiunga’s application for condonation and alteration of the 2009 judgment in the protracted labour dispute with AFC Commercial Bank Limited.

Chiunga, a former loans officer stationed in Gutu, was dismissed following disciplinary proceedings related to the misuse of a cheque book that had been erroneously processed as a loan repayment account. The bank accused him of misconduct and fraud after he overdrew the account and altered account numbers on several occasions.

After exhausting internal disciplinary processes, Chiunga appealed to an arbitrator, who upheld his dismissal. He then appealed to the Labour Court, which in 2009 confirmed the finding of misconduct but overturned the penalty of dismissal, substituting it with a final written warning and ordering reinstatement or damages in lieu thereof.

However, the Labour Court judgment was issued against “Agriculture Development Bank,” an entity which the Supreme Court found did not exist at law. The respondent’s correct legal identity was AFC Commercial Bank of Zimbabwe trading as Agribank.

Although the bank initially noted an appeal against the Labour Court ruling, it later withdrew the appeal in January 2022.

Chiunga subsequently sought quantification of damages in lieu of reinstatement, but the bank successfully raised a preliminary objection, arguing that the 2009 order was unenforceable because it had been granted against a non-existent party.

Chiunga then applied for condonation to allow the late filing of an application to amend the judgment to reflect the correct name of the respondent. The Labour Court dismissed the application, holding that the original proceedings were a nullity and that there was therefore no valid order capable of alteration.

On appeal, the Supreme Court agreed with that reasoning, reaffirming the legal principle that a court order granted against a non-existent party is void ab initio and cannot be corrected or revived through subsequent procedural steps.

“The doctrine of nullity dictates that what is void from the beginning cannot be amended, confirmed or condoned,” the court held.

The Supreme Court rejected Chiunga’s argument that the misnaming of the respondent amounted to a minor or mutual error that could be cured by amendment. The court found that the error went to the root of the proceedings and distinguished the matter from cases where a party had merely been misdescribed.

The court further ruled that once the Labour Court established that the underlying judgment was a nullity, it was not obliged to consider the usual requirements for condonation, including the length of delay or prospects of success.

In dismissing the appeal with costs, the Supreme Court concluded that the Labour Court had properly exercised its discretion and had not determined issues outside those placed before it.

The judgment brings to a close a labour dispute that has spanned more than two decades.