This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer.

The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated, or that, alternatively, he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal. That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act.

Magaramombe elected to be paid damages in lieu of reinstatement and requested the arbitrator to quantify the damages due to him.

During the quantification proceedings, the University unsuccessfully applied for the stay of proceedings, on the grounds, that, it had applied to the Labour Court for the suspension of the arbitral award pending the appeal.

The application for the stay of proceedings was turned down by the arbitrator on the ground, that, an appeal against an arbitral award and an application for interim relief do not have the effect of suspending an arbitral award.

The arbitrator thereafter awarded Magaramombe the sum of $77,302 as damages.

On 26 September 2011, the University appealed against the award of damages and also applied for a review of the award.

On 27 September 2011, Magaramombe applied to the High Court for registration of the arbitral award.

The University did not oppose the application for registration, as it was of the view that there was no need to oppose the application for registration since it had already applied for the suspension of the award to the Labour Court.

The University assumed, that, the execution of the award was dependent on the outcome of the application to the Labour Court.

The Labour Court granted the University a stay of execution of the arbitral award pending the hearing of the appeal on 3 November 2011.

The High Court registered the arbitral award on or about 14 November 2011.

After the registration of the arbitral award with the High Court, Magaramombe sought to execute the award despite the suspension of the award by the Labour Court.

The University launched an urgent application to stay the execution to the High Court.

The basis of the University's urgent application was that the arbitral award that was executed had been suspended by the Labour Court pending the hearing of an appeal against that award by the Labour Court.

The High Court dismissed the Chamber application.

The University noted an appeal against the dismissal.

The University now applies, in Chambers, for the appeal to be set down on an urgent basis and for an order staying execution pending the determination of that appeal.

In dismissing the urgent application, the learned Judge had this to say at pp4-5 of the cyclostyled judgment (HH61-12):

"The last preliminary point was that the matter was not urgent….,. Ms Mberi submitted, that, the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended, that, the applicant should have acted on 27 November 2011 when it was served with the notice of registration of the award.

Mr Mpofu made contradictory submissions on the failure to oppose registration.

The first was that the noting of (the) appeal in the Labour Court against the arbitral award automatically suspended the award. The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on (a) firm footing on the first ground, then, all the more reason for it to oppose registration on that point. But, as events that transpired after it obtained interim relief shows (sic), the applicant believed that implementation could only be stayed by obtaining relief from the Labour Court.

Mr Mpofu did not dispute Ms Mberi's submission, that, the applicant was aware of the judgment of Dhlodhlo supra, that the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction…,.

I agree with Ms Mberi, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application, especially after it received the interim relief it sought in order to forestall it. It was aware that the purpose of seeking registration was to execute. Armed with the interim order, the applicant was duty bound to either oppose the registration, which was granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2011 (2012?) to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself."

My understanding of the above excerpts of the judgment is that the court a quo made the following two determinations –

(a) The matter was not urgent; and

(b) The execution of the arbitral award could not be stayed because the award had became a High Court judgment whose execution cannot be suspended by the Labour Court.

In this Chamber application, counsel for the University essentially argued, that, execution of the award of the arbitrator was suspended by the Labour Court, which preceded the registration of the award in the High Court. Consequently, Magaramombe could not execute the award, despite its registration with the High Court, as the execution of the award had been suspended by the Labour Court by the time it was registered.

In other words, the award that was registered was a suspended award which could not be executed.

Counsel for Magaramombe, on the other hand, initially raised two preliminary points.

She submitted, that, the Supreme Court had no jurisdiction to hear the Chamber application because there was no valid appeal before the Supreme Court.

She argued, that, the court a quo simply ruled that the matter was not urgent, and, such ruling was interlocutory. She contended, that, the University had not obtained the leave of the court a quo to appeal. Leave to appeal not having been sought and granted, there can be no valid appeal before the Supreme Court.

It was also counsel for Magaramombe's submission, that, on the authority of Dhlodhlo v The Deputy Sheriff for Marondera and Three Ors HH76-11, even if the order issued by the Labour Court had stayed execution of the award, such an order was of no force and effect because the award had since been registered with the High Court and thus became a High Court order which cannot be suspended by an order of an inferior court, namely, the Labour Court.

The learned Judge in the court a quo was probably correct in concluding, that, the University had authored the urgency of the matter before him by delaying the launching of the urgent application until the last minute.

I also accept the submission of counsel for Magaramombe, that, a determination of whether or not a matter is urgent is interlocutory. An appeal against such a determination would certainly require the leave of the court a quo. If such leave were granted, the superior court can only interfere with such a ruling on the basis of a misdirection or gross unreasonableness.

In Chambers: The legal point raised in this application is:

Who should grant or refuse leave to appeal in terms of section 92F of the Labour Act [Chapter 28:01] in circumstances where the presiding President is unavailable?

The relevant section provides:

"92F Appeals against decisions of Labour Court

(1) An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

(2) Any party wishing to appeal from any decision of the Labour Court on a question of law in terms of subsection (1) shall seek from the President who made the decision leave to appeal that decision.

(3) If the President refuses leave to appeal in terms of subsection (2), the party may seek leave from the judge of the Supreme Court to appeal."

This is an important point that should be determined by the Supreme Court as opposed to a Judge of the Supreme Court in Chambers.

Accordingly, I direct that this matter be set down for hearing before a Court of three Judges.

I also direct, that, at the hearing of this matter, the parties should be ready to argue the matter on the merits. In other words, the parties should first argue the application for leave as a preliminary point and then the merits of the appeal. This will enable the Court to consider the merits of the appeal should it conclude that it can grant the leave to appeal.

Accordingly, the parties in this case are hereby granted leave to augment their Heads of Argument in respect of the preliminary point and to file Heads of Argument on the merits of the appeal.

This approach may expedite the finalisation of this matter.

In the result, the Registrar is directed to set this matter down. There will be no order as to costs.

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list.

Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017. The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252 after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management. The first respondent, who works for the second respondent, was appointed the Judicial Manager.

The appellant then filed with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors. The claim was provisionally accepted but later revoked at the instance of the first respondent.

This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199 - without an order of court converting his Zimbabwean dollar claim to United States dollars.

He had, it seemed, done the conversion of the amount himself.

The appellant then approached the court a quo seeking to be re-instated on the list of creditors.

The specific order that he sought read as follows:

“It is ordered that:

1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.

2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) First, second, and third respondent pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect that there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.

The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;

(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and

(b) The claim lodged by the appellant before the Master of the High Court was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.

Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief:

“It is prayed that;

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation cost for this matter.”

In their heads of argument, the respondents raised three points in limine with regards to the relief sought:

(i) Firstly, they contended that the appellant failed to pray for the success of his appeal in this court, hence, the relief sought was incompetent.

(ii) Secondly, they argued that the relief which the appellant was seeking, on appeal before this Court, was different from that which he sought in the court a quo.

(iii) Thirdly, the respondents argued that the relief sought was 'fatally defective' in that the appellant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.

In response to these points in limine, the appellant, in his heads of argument, argued that there is no provision in the Rules which requires a party to expressly state whether or not the appeal should succeed as the judges can themselves simply state that the appeal succeeds or not.

He explained, that, the intention that the appeal succeeds is apparent from the very act of appealing itself.

With regards to the allegation that he now seeks what he did not seek in the court a quo, the appellant's position was that only the method of enforcement had changed but he still sought the same relief.

On the point that he was not seeking any substantive relief against the first two respondents except for costs, the appellant argued that it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt.

The Court found there was merit in the respondents points in limine...,.

The second point in limine raised by the respondents, concerning new relief being sought on appeal by the appellant, also has merit.

As correctly observed, the appellant approached the court a quo seeking to reinstate his claim on the third respondent's list of creditors in the office of the Master of the High Court. The application a quo having failed, the appellant, on appeal, now sought an order granting him leave to register his claim for payment of USD3,057,199 by the third respondent, for purposes of enforcement.

This request pre-supposes, quite erroneously, that the High Court made an order reinstating his claim on the creditors list.

This not having happened, the relief now sought is not one that is open to this Court to grant.

An Appeal Court, by nature, is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows, generally, that there is nothing for the Appeal Court to determine.

It is in the appellant's interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355.

MALABA JA…, in that case, held, that, generally, a party cannot seek, on appeal, relief that they did not seek in the lower court.

See also Goto v Goto 2001 (2) ZLR 519 (S) where the court held, that, it was not open to the appellant, in that case, in the absence of an amendment to her declaration, to claim, on appeal, something which she did not claim in the court a quo.

The exception to this rule was outlined in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) where it was held as follows;

“There are, however, other decisions to the effect that the Appellate Court has a discretion, in appropriate cases, to grant relief claimed for the first time on appeal if it is satisfied that all the facts on which the court of first instance would have decided the matter had it been raised with it were available for its consideration, and such facts as are essential to the decision are common cause or well-nigh incontrovertible: see Workmen's Compensation Commissioner v Crawford and Anor 1987 (1) SA 290 at 307G; Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380I-381A.”

When this is applied to the facts of this matter, it is evident that the requirements listed, which would have entitled the appellant to seek the relief in question for the first time on appeal, have not been met.

Related to this issue, this Court finds, as did the court a quo, that the amount claimed by the appellant was not converted into US dollars by a court of competent jurisdiction.

It was not enough for the appellant to attempt a conversion on his own, using a rate that was not known, and coming up with a figure which no court had endorsed.

Consequently, the appellant (a quo) failed to establish a proper basis for the inclusion of the US dollar amount that he sought, on the third respondent's list of creditors.

The judgment of the court a quo cannot, in this respect, be faulted.

The next important inquiry would be the appropriate order to be made....,.

In Chombo v National Prosecuting Authority & Ors SC158-21, the court struck the appeal off the roll because it was based on a decision reached without jurisdiction. In other words, no appeal could lie against a decision marred by lack of jurisdiction.

However, in this case, the court a quo did not pass upon the application before it. It only determined the question, which it was entitled to raise, of whether or not it had jurisdiction.

The instant appeal is restricted to the question of the court a quo's findings on its lack of jurisdiction.

The court a quo did not exercise jurisdiction, which it did not have, on the merits of the application, which would have afflicted the validity of this appeal. It stuck to the jurisdictional issue, which it could lawfully determine.

In turn, the appeal against the finding as to jurisdiction is valid.

This is an appeal against a judgment of the Labour Court dismissing the first appellant's, a labour officer, application for confirmation.

The ruling was in favour of the second appellant, a former employee of the respondent, who was dismissed from employment sometime in March 2016 on allegations of certain acts of misconduct, including theft and/or fraud.

At the hearing of the appeal, we allowed the appeal and issued an order in the following terms:

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with no order as to costs.

2. The proceedings before the Labour Officer and the Labour Court be and are hereby set aside.

2.1 The matter is remitted to the Labour Court to be heard as an appeal against the decision of the Designated Appeals Officer in terms of section 92(1) of the Labour Act.

3. The second appellant herein shall file his Notice of Appeal to the Labour Court within 15 days from the date of this order.

3.1 Thereafter, the matter shall proceed in terms of the Labour Court Rules.

We indicated that reasons for judgment would follow. These are they.

The second appellant was employed by the respondent as an Administration Clerk in charge of cash sales. He was in the respondent's employ for a period running from May 1998 until March 2016 when he was dismissed from employment following allegations of misconduct.

The background relating to the dismissal is the following:

On 29 February 2016, the second appellant was issued with a charge letter detailing the grounds upon which the misconduct charges were premised. He was charged with theft or fraud in breach of section 4(d) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15/2006), also commonly known as the Model Code of Conduct.

It was alleged, that, sometime in October to November 2015, he was assigned, by management, to backstop one Shayne Mbizi who was going on leave, and, that, during the course of that period the appellant failed to account for R1,780 and USD600 respectively.

The respondent alleged that during the period in issue, the second appellant had:

(a) On 29 October 2015, been given a cash sales book together with sales for that day. Among those sales was R1,780 as per receipt number 018461. The said amount was neither posted onto the daily cash book nor was it banked with the cash office as per the company practice.

(b) On 2 November 2015, received USD1,200 in cash sales but had only posted USD1,000 onto the cashbook. In terms of receipt number 018529, received a cash sale of USD286 but only USD186 was posted onto the cashbook.

(c) On 16 November 2015, posted USD120 from receipt number 018538 valued at USD220, and, as a result, USD100 was not remitted to the cash office.

(d) On 18 November 2015, a receipt number in the name of a client, one Thomas Knowledge, indicated a cash payment of USD546 but only USD446 was posted onto the cash sale.

In response to the charge letter, the second appellant accepted indebtedness of the USD600, and, as far as the issue of the missing R1,780 was concerned, he requested that further investigations be conducted.

Pursuant to the charges, disciplinary proceedings were conducted wherein the second appellant was found guilty and dismissed from employment.

An internal appeal was lodged to the Appeals Committee which upheld the decision of the disciplinary authority.

Thereafter, the second appellant approached the Ministry of Public Service, Labour, and Social Welfare with a complaint of unfair dismissal.

The parties then appeared before the first appellant for conciliation.

They reached a stalemate, which led to the subsequent issuance of a Certificate of No Settlement.

The first appellant, the labour officer, then proceeded to deal with the matter in terms of section 93(5)(c) of the Labour Act [Chapter 28:01].

Before the labour officer, the second appellant raised six grounds of appeal in which he contended, that, he had been wrongly accused of the said charges. He further argued, that, the acknowledgment of debt, which he is said to have purportedly written, was fabricated. In his final submissions, the second appellant argued, that, these charges were a ploy by the respondent to deprive him of his retrenchment package.

The respondent opposed the second appellant's case in all material respects.

Following the arguments, the labour officer made a ruling in favour of the second appellant. She overturned the decision of the Disciplinary Committee on the basis, that, the respondent had failed to prove its case beyond a reasonable doubt. In arriving at this decision, reliance was placed on the case of Astra Industries Ltd v Chamburuka SC27-12.

The labour officer consequently ordered the reinstatement of the second appellant without loss of salary and benefits.

It is this ruling which was subject of confirmation before the court a quo in terms of section 93(5a) and (5b) of the Labour Act.

The application for confirmation was opposed.

The issue for determination before the court a quo was whether or not the second appellant was unfairly dismissed.

Contrary to the findings of the labour officer, the court a quo held that the onus of proof in disciplinary proceedings was on a balance of probabilities.

The court a quo held, that, the labour officer had erred in placing reliance on Astra Industries Ltd v Chamburuka SC27-12.

In assessing the charge, on a balance of probabilities, the court a quo found that there was no unfair dismissal and proceeded to dismiss the application for confirmation.

Aggrieved by the decision of the court a quo, the second appellant noted an appeal to this Court on the following grounds:

“(a) The court a quo erred on a point of law in finding, that, the second appellant (the employee) had the onus to prove the admitted fact, that, in compiling the electronic cash book, he had relied only upon the cashier's handwritten notes.

(b) Further, the court a quo erred on a point of law in not finding that the respondent had failed to prove the essential elements of theft or fraud.

(c) Further, the court a quo misdirected itself in interfering with the labour officer's factual findings which had not been proved to be irrational or grossly unreasonable.”

Although the labour officer was cited as the first appellant she has not participated in this appeal nor has she filed any documents.

That is the proper way of dealing with the dispute, as she is not a litigant.

She would only have filed the application for confirmation in compliance with the law. She would therefore have no interest in the matter and we heard the appeal in her absence.

In his heads of argument, the second appellant argued, that, the court a quo erred in holding that he, the second appellant, had the onus to prove an admitted fact.

The appellant argued, that, the nature of the court a quo's misdirection in that regard was such that the conclusion arrived at by the court a quo was per incuriam.

The appellant further argued, that, the court a quo erred when it failed to make a finding that the respondent had failed to prove the essential elements of theft or fraud.

It was his argument that the respondent failed to prove its case, even on a preponderance of probabilities, and, as such, the court a quo ought not to have found in its favour.

In his final submissions, the appellant averred that the court a quo misdirected itself when it interfered with the factual findings of the labour officer without a finding of irrationality on the part of her decision.

Per contra, the respondent argued that the key issue for determination was whether or not the court a quo had erred in making its decision.

The respondent argued, that, the burden of proof in labour proceedings was proof on a balance of probabilities; therefore, the appellant had failed to interpret the position in Astra Industries Ltd v Chamburuka SC27-12.

It further argued, that, what determines where the onus of proof lies is the person who makes the allegations. In casu, the respondent argued, that, it was the appellant making the allegations, and, therefore, on principle, he must be able to prove the point.

The respondent further argued, that, the court a quo was not in error, as such, the appeal ought to be dismissed with costs.

Although the parties have made arguments on the merits, it is our view that a more fundamental issue, pertaining to the procedure adopted by the parties, including the labour officer, in the resolution of the matter, arises in this case.

It is imperative to note, that, a claim for unfair dismissal was brought by the second appellant in terms of SI 15/2006 subsequent to the dismissal of an appeal by the appeals authority.

The court notes, that, the disciplinary authority, when hearing the matter, made factual findings which were confirmed by the designated Appeals Officer.

It is against this background that the court takes the view, that, a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings in question were properly before the labour officer in the first place.

In that regard, the issues that arise for determination are the following:

(i) The ambit of the jurisdiction of a labour officer, under section 93 of the Labour Act, where a matter is referred to him or her in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006, otherwise referred to as the Model Code of Conduct; and

(ii) Consequent thereto, whether or not the subsection is consistent with sections 101 and 92D of the Labour Act [Chapter 28:01] (the Act) as well as section 12B thereof.

We are indebted to counsel for undertaking further research and submitting additional written submissions to the court so that clarity on this issue may be achieved.

Counsel for the appellant made the following submissions:

He submitted that sub-section (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006 (the Model Code of Conduct) is inconsistent with sections 92D and 101(5) of the Labour Act [Chapter 28:01].

In this regard, he sought reliance on the authorities of Mwenye v Lonrho Zimbabwe Ltd 1999 (2) ZLR 429 (S) and Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S).

In consequence thereto, he has submitted that due to the inconsistency, subsection (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) should be struck down.

On the other hand, counsel for the respondent has argued an alternative position to that presented by counsel for the appellant.

He urged the court to find, that, there is in fact no conflict between the provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct).

Further to the above, counsel has urged the court to find that a labour officer has the requisite jurisdiction to deal with a matter referred to him on the basis that a dismissal has been effected in contravention of section 12B(3) of the Labour Act.

Although the issues for determination in this appeal emanate from a reference of an unfair dismissal under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct), the enabling legislative provision for such reference is section 101 of the Labour Act, in particular subsections (5) and (6) thereof.

The law provides:

“(5) Notwithstanding this Part, but subject to subs (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subs (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

The Labour Act has been subjected to numerous amendments ever since it was initially promulgated as the Labour Relations Act [Chapter 28:01], ultimately ending as the Labour Act as it is currently known.

For some reason, section 101 of the Labour Act has remained in the same format as it was, with minor amendments which are not pertinent for the resolution of this dispute.

Subsections (5) and (6) have been considered by this Court in order to ascertain what it is that a labour officer is empowered to do or determine upon reference of a matter to such labour officer in terms of section 101(5) or (6) of the Labour Act.

Section 101(5), under the former Labour Relations Act, was considered by this Court in Mwenye v Lonrho Zimbabwe 1999 (2) 429 (S). At 433C-434B, GUBBAY CJ remarked as follows:

“Section 93(1) vests in a labour relations officer a general jurisdiction to deal with any dispute, either on his own initiative or on reference to him by one of the parties. Section 101 of the Act (then as s117A) was introduced on January 1, 1993 by the Labour Relations Amendment Act 12 of 1992. It then became possible for an employment code of conduct, binding in respect of a particular industry, undertaking, or workplace, to be registered; provided it contained the matters specified in s101(3) of the Act….,.

Against this background, it does not seem to me that the legislative objective introducing the new procedure was to relieve labour relations officers of the burden of determining disputes. It was rather to return to the employee and employer a greater degree of autonomy with regard to the determination of their disputes than previously enjoyed.

Section 101(5) of the Act is, in effect, an exception to section 93.

It is a provision designed for the benefit of the parties. As long as the dispute or matter is: (a) the subject of proceedings under a code; or (b) liable to be the subject of proceedings under a code; no labour relations officer may intervene.

His power to determine or otherwise dispose of the matter under section 101(6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code.

Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the thirty day period, the other could raise section 101(5) as a defence.

On the other hand, where the parties are ad idem that their dispute is incapable of resolution under the code, or both deem it more advantageous to have it determined by a labour relations officer, then, the dispute or matter is no longer 'liable' to be the subject of proceedings under the code. It may be referred immediately to a labour relations officer.”

The import of this authority is to illustrate the ambit of the jurisdiction of the labour officer under section 93 of the Labour Act.

In other words, does a labour officer have carte blanche to deal with the matter as he sees fit or is his jurisdiction specific?

The import of these provisions was considered by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170. At p172F-173D, this Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).

In this case, there were delays in the determination of the matter due to a number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant's response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch his flight and had other business to do in Harare.

When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delay.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the code of conduct.”…,.

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were, firstly, the fact that a determination had been made, and, secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

Although this Court has clearly set out the procedures applicable when a matter is referred to a labour officer in terms of section 101 of the Labour Act, it is evident that the process is fraught with confusion.

In fairness to the parties involved in this debacle, the incidence of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) and the provisions of section 8(6) and (7) of the Model Code of Conduct might have, to a large extent, contributed to the confusion.

It is imperative, therefore, that the role of a labour officer under the enabling sections be examined.

The issue before the court is a simple one: what are the powers exercisable by a labour officer in terms of section 93 of the Labour Act?

A labour officer is not a stand-alone court or tribunal, and exercises his or her powers upon reference to him of matters or disputes.

Viewed in this context, one does not envisage any issue over the exercise of those powers under the Labour Act.

The labour officer is a creature of the Labour Act. He is imbued with certain and specified duties and obligations under the Labour Act, and, perforce, his powers are only to be exercised as defined in the Labour Act. Therefore, the jurisdiction that he is empowered to exercise, and the nature of the relief that he provides, after an exercise of such jurisdiction, must be found in the Labour Act.

It cannot emanate from any other source.

However, a ticklish question on the exercise of this jurisdiction may arise in this regard, mainly emanating from the provisions which stipulate the matters in terms of which the labour officer exercises his jurisdiction and make provision for the reference of such matters to the labour officer.

Section 93 of the Labour Act is not a stand-alone provision. It must be read with other provisions in the Labour Act or related provisions from codes of conduct. It is therefore to the Labour Act that one must look, in particular section 93(1), (2) and (3) of the Labour Act.

Section 93 of the Labour Act, as amended by Act 5 of 2015, reads:

“93 Powers of labour officers

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation, or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under ss (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

The question is: what dispute is a labour officer empowered to preside over in terms of section 93(1) of the Labour Act?

The clear principle that emerges from the authorities in which section 93 of the Labour Act has been considered is that his mandate is to preside over a fresh hearing wherein a complaint has been lodged against an employer or there exists a dispute between the parties.

Consequently, his jurisdiction is limited to matters where there are allegations of unfair labour practices or unfair dismissal.

Unfair labour practices are defined in section 8 of the Labour Act and include a whole host of wrongs that an employer may be guilty of in the workplace.

This is not the complaint here.

On 5 May 2016, the designated Appeals Officer advised the second appellant, in writing, that his appeal had not been successful. The latter acknowledged receipt on 9 May 2016.

On 29 April 2016, he filed a complaint with the Ministry of Public Service, Labour and Social Welfare, alleging “an unfair dismissal”.

On 3 May 2016, the labour officer notified the parties to appear before her for a hearing on 7 May 2016.

On 17 May 2016, the labour officer issued a Certificate of No Settlement.

On some unnamed date, she advised the parties to file submissions for her consideration. It is common cause that she issued a draft ruling on 5 September 2016, which ruling was the subject of the application for confirmation which was refused by the Labour Court. She stated therein that she had determined the matter in accordance with section 93(5)(c) of the Labour Act.

In his submissions before the labour officer, the second appellant made allegations that there had been a delay in the determination of his appeal - even though, at the time he lodged the complaint, he had been notified of its dismissal.

I note that he did not seek an appeal before the labour officer.

The respondent filed a response in which it responded to the complaints on the merits. It also feebly raised a point in limine on the procedure adopted by the second appellant.

The labour officer was of the opinion that the second appellant had lodged an appeal for determination by her.

This is confirmed by the labour officer making reference to the following grounds of appeal as being issues for determination before her:

“1. Wrongly accused of stealing 1,730 Rands (one thousand seven hundred and thirty rands);

2. Wrongly accused of stealing/misrepresenting US600 (six hundred dollars);

3. Withdrawal of police report;

4. Fabricated acknowledgement of debt;

5. Report to Ministry of Labour and subsequent courtesy call from M C Meats Human Resources;

6. Prejudiced of retrenchment package.”

The labour officer thereafter proceeded to analyze the facts and consider the applicable law. She then addressed the grounds of appeal.

After this exercise, she went on to quash the conviction of the second appellant on the misconduct charges and ordered that he be reinstated to his original position without loss of salary and benefits.

In making this ruling she said:

“It is clear from what has been discussed above, that, the Respondent failed to prove its case that the appellant contravened section 4(d), theft or fraud (sic) of the National Employment Code of Conduct S.I. 15 of 2006. In light of the above, the conviction of Appellant be and is hereby quashed. The Respondent be and is hereby ordered to reinstate the appellant to his original position without loss of salary and benefits from the date of dismissal within 30 days of receipt of the ruling.”

A perusal of the ruling issued by the labour officer will tend to show, that, the proceedings conducted by her were in effect an appeal against the decision of the designated Appeals Officer dismissing the second appellant's appeal against the findings of guilt by the disciplinary authority and the penalty of dismissal meted out as a result.

Undoubtedly, she was acting as an appeal tribunal.

A simple reading of the subsections of section 93 of the Labour Act set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1) of the Labour Act, it is a matter where the labour officer must conciliate on the dispute.

At this stage, all that a labour officer is obliged to do under the Labour Act is to attempt to bring the parties to a stage where a settlement is achieved.

Thus, the proceedings before the labour officer, under section 93(1) of the Labour Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Labour Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

Section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) is concerned with the respective parties rights in a disciplinary process to appeal against a determination made in terms of the Code.

Provision is made in the section for internal processes of appeal against determinations of formal tribunals at the workplace.

To be fair, a simple reading of the above statutory provisions would appear to suggest, that, a reference to a labour officer, or an Employment Council Agent, under the same, is an appeal.

To place the matter in its proper context, regard must be had to the provisions in the Labour Act which permit a reference to a labour officer, or an Employment Council Agent, as the case may be.

Therefore, and in addition, regard must be had to section 101(5) and (6) of the Labour Act which empower a labour officer to exercise powers inherent in such officer under section 93 of the Labour Act.

Section 93(1), (2) and (3) of the Labour Act make provision for conciliation.

To conciliate is to reconcile or make compatible. Thus, the first duty of a labour officer, in conciliation proceedings, is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute.

Section 93 of the Labour Act, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.

The finding that the labour officer had no jurisdiction to entertain the matter disposes of the issue.

In casu, it matters not that the labour officer went on to decide the matter under section 93(5) of the Labour Act after which she issued what she termed “a draft ruling”.

That is not an issue for consideration before the court as nothing turns on that ruling.

The method by which she arrived at a draft ruling is, as a result, of no consequence to the determination of this appeal.

The reason I say this is that section 93(5) of the Labour Act does not empower a labour officer to examine earlier proceedings and make a determination as to their correctness.

That said, it only remains for me to consider the relationship of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) with section 93 and section 101 of the Labour Act.

It seems to me that section 8(6) of the Model Code of Conduct appears to be out of sync with the whole section.

It seems to suggest, that, a party aggrieved by a decision or manner in which an appeal has been conducted has a right of appeal to a labour officer in terms of section 93 of the Labour Act.

To my mind this is obviously incorrect, if regard is had to the wording of section 93 of the Labour Act.

The powers bestowed upon a labour officer under the section are confined to disputes related to unfair labour practices or unfair dismissals.

A reference under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 cannot be defined as relating to either an unfair labour practice or unfair dismissal.

Given the scenario related above, what is it that the labour officer was presiding over?

What then is the import of section 8(6) and (7) of the Model Code of Conduct in terms of which this dispute was referred to the labour officer?

Is the reference meant to give the parties an opportunity to present their respective positions to the dispute before the labour officer afresh and for him to make a determination?

Is the labour officer exercising review or appeal powers, and, in accordance with which provision of the Labour Act?

If regard is had to the nature of the disputes that a labour officer is mandated to deal with, it becomes clear that the jurisdiction is limited to a dispute or unfair labour practice or unfair dismissal.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not suggested, in the Labour Act, that the labour officer, in this context, can exercise powers of appeal or review.

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct. The reference to the labour officer, in terms of section 8(6) of the Model Code of Conduct would, as a consequence, seem to be in direct conflict with the provisions of section 101(5) and (6) of the Labour Act.

And yet, under the various provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) a labour officer has been imbued with the power to entertain parties to a dispute without any apparent restriction.

The nature of the disputes he can entertain is not specifically defined. They have to be construed by reference to section 93(1) of the Labour Act in order to achieve clarity.

An exercise of power under section 93 of the Labour Act must be provided for in terms of the Labour Act itself. Reference must therefore be had to section 101 of the Labour Act, which reads in relevant part:

“101 Employment Codes of Conduct

(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

A perusal of the Labour Act will show, that, the only section providing for reference of a matter to a labour officer for intervention under section 93 is to be found in section 101(6): and yet, when read with subsection (5) of the same section, it becomes evident that the procedure adopted before the labour officer was not permitted by law.

In this context, the implications of what the labour officer did are obvious.

First, she assumed jurisdiction to entertain a matter which the law did not sanction. An appeal against proceedings under the Code can only lie to a court or a tribunal which is empowered by law to act as an Appeal Court or tribunal.

In casu, the labour officer assumed unto herself the jurisdiction that is imbued, by law, in an Appellate Court or tribunal.

A labour officer is not an appeal structure for purposes of section 93 of the Labour Act, nor can that power be read into the section no matter where the referral of a dispute or matter emanates from.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been any procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

There is a presumption that the Legislature does not intend to alter the law, whether it is statutory or common law, unless it provides so in specific terms. This presumption is fundamental to the interpretation of statutory provisions.

As a result, courts are enjoined, as much as possible, to construe statutes in a manner that seeks to reconcile seemingly contradictory provisions.

The appellant in this dispute was charged with misconduct in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) after which he was dismissed from employment.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

She also, again without having the jurisdiction to even hear the parties, set aside findings of fact made by a tribunal of first instance without regard to settled principles by which such findings should be set aside.

These same findings of fact reached by the disciplinary authority were confirmed by the appeal structures of the respondent.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful and nothing can stand on that decision.

The provisions of section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) must be read together with the Labour Act under which the statutory instrument was promulgated. Where the Code conflicts with any provision of the Act, it stands to reason that the provisions of the Act must prevail.

Section 2A(3) provides that the Labour Act shall prevail over any enactment which is inconsistent with it.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear that the labour officer presided over a matter over which she did not have any jurisdiction.

As stated in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act. Accordingly, the subsequent procedures were a nullity as the labour officer could not subsequently purport to make factual findings on the same matter.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and, therefore, the proceedings conducted under section 93(5)(c) of the Labour Act, by the labour officer, were, as a result, an irregularity.

In addition, the proceedings before the Labour Court, to confirm the ruling, were also a nullity.

This Court is of the view, that, the matter should have been brought before the Labour Court as an appeal.

Both counsel were in agreement with this position.

This finding has necessitated the writing of the present judgment so as to give the position that should obtain where a dispute is dealt with in terms of an employment code of conduct.

In addition it is necessary, in order that the apparent confusion that exists between the Labour Act and section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code), as highlighted in this judgment, be rectified; that the relevant Minister responsible for the administration of the Labour Act be appraised of the need to call upon the Legislature to align S.I 15/2006 to its parent statute, the Labour Act.

It is for the above reasons that this Court issued an order as described above.

This is an appeal against the whole judgment of the Labour Court handed down on 11 November 2022 wherein it dismissed the appellant's appeal against a decision of a Designated Agent of the National Employment Council for Rural District Councils.

The respondent was employed by the appellant as a Housing Officer. He was indicted for a disciplinary hearing on 11 November 2017 before the appellant's Disciplinary Committee. He was charged with 'committing any act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment' in terms of clause 8(d) of Statutory Instrument 87/2017; specifically, that, he unilaterally and unlawfully exempted some council tenants from paying rentals which resulted in the appellant losing revenue.

The Disciplinary Committee found in favour of the employer and dismissed the respondent.

He then appealed the decision to the Internal Appeals Committee which upheld the decision of the Disciplinary Committee.

Aggrieved by the decision, the respondent again appealed to the National Employment Council Exemptions Committee (“the Exemptions Committee”) which set aside the decision of the Internal Appeals Committee and referred the matter back to the Disciplinary Committee, for a hearing de novo, on the basis that the Disciplinary Committee was not properly constituted when it presided over the matter.

The matter was heard again by the Disciplinary Committee and it reached the same verdict and penalty. The respondent then appealed to the Internal Appeals Committee which, again, upheld the dismissal.

On 13 March 2018, he further appealed the dismissal to the National Employment Council Exemptions Committee (the Exemptions Committee) which heard the matter on 14 March 2018.

On the basis that the Exemptions Committee failed to conclude the matter within the time stipulated in section 14 of SI 87/17, and on 26 November 2018, the respondent wrote to the Designated Agent advising him of that fact.

Consequent to the respondent writing to the Designated Agent complaining about the failure by the National Employment Council Exemptions Committee to determine the matter within 30 days, the Exemptions Committee handed down reasons for its determination on 4 December 2018.

On 11 March 2021, the respondent filed an appeal with the Labour Court under cover of case number LC/H/57/19 seeking a referral of his appeal in accordance with clause 14(c) of SI 78/17.

He was seeking that the appeal be disposed of by the Designated Agent due to non-observance of the timelines and the lack of jurisdiction of the National Employment Council Exemptions Committee (the Exemptions Committee).

The grounds of appeal were couched as follows:

1. The Exemptions Committee erred at law in determining a matter without jurisdiction outside the prescribed thirty (30) working days and after the matter had been referred to the Designated Agent for disposal.

2. The Exemptions Committee erred at law in making a determination without providing reasons for such determination.

The respondent sought the following relief:

'(a) That the appeal succeeds with costs.

(b) That the decision of the Exemptions Committee be set aside.

(c) That the matter shall be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the appellant on 26 November 2018.'

On 22 May 2020, the Labour Court allowed the appeal under case number LC/H/57/19. It granted the following order:

“(a) That the instant appeal succeeds with costs.

(b) That the decision of the Exemptions Officer be set aside.

(c) That the matter be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the respondent.”

The respondent then approached the Designated Agent on the basis of this order of the Labour Court.

On 21 June 2021, the parties attended proceedings before the Designated Agent who advised the parties that he would proceed in terms of section 63(3a) of the Labour Act (the Act).

The parties were invited to file written submissions and the Designated Agent proceeded to pronounce on the matter on 19 October 2021.

In his determination, he made a finding that he lacked the requisite jurisdiction to preside over the matter as it raised review grounds. He, however, went on to deal with the substantive aspects of the matter and ultimately gave an order reinstating the respondent.

Disgruntled by the determination of the Designated Agent, the appellant appealed to the court a quo on 17 November 2021. The court found that the Designated Agent properly dealt with the matter.

It found that the issue of grading was before the Designated Agent and that he properly disposed of it. In addition, it found that the reinstatement of the respondent was proper as reinstatement could be ordered where the merits of the matter have not been entertained. In the result, the court a quo dismissed the appeal.

It is against this judgment that the present appeal was noted.

At the hearing of the appeal, the court asked counsel for the appellant to address the question of whether section 63(3a) as read with section 93 of the Labour Act confer appellate jurisdiction on a Designated Agent in view of the referral of an appeal to him by the Labour Court.

Counsel for the appellant submitted, that, the matter was referred for hearing before the Designated Agent as an appeal. He contended that the National Employment Council Exemptions Committee (the Exemption Committee) was seized with an appeal that it failed to conclude within the prescribed 30 days hence the appeal was then placed before the Designated Agent.

He submitted that section 63(3a) of the Labour Act does not confer appellate jurisdiction on Designated Agents, but, that a provision in SI 87/17 allows for matters not determined within the stipulated timeframe to be referred to a Designated Agent.

He asserted that Designated Agents have no such powers to hear appeals.

It was his submission that the Labour Court ought to have presided over the matter instead of deferring it to the Designated Agent. He relied on section 14 of SI 87/17 which provides that an appeal against the determination of the National Employment Council Exemptions Committee (the Exemptions Committee) lies with the Labour Court.

Counsel submitted that if a matter is not concluded within 30 days, it is then supposed to be referred to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act.

On the merits, counsel submitted that the court a quo erred in upholding the decision of the Designated Agent when he had conceded that he did not have jurisdiction, but, nonetheless, went on to deal with the substance of the matter.

In addition to this, it was his contention that the court a quo misdirected itself by upholding the appeal and reinstating the respondent without having dealt with the merits of the matter.

In this light, he moved that the matter be remitted to the Labour Court to deal with the matter on the merits and that the decision of the Designated Agent be set aside.

He also stated, that, if the respondent's contention was that his matter was not heard within 30 days, the correct procedure available to the respondent was to file an application for review and not launch an appeal as he did.

Conversely, the respondent submitted that his appeal lay with the Designated Agent in terms of section 14 of SI 87/17 given that the matter was not heard and concluded by the National Employment Council Exemptions Committee (the Exemptions Committee) within 30 days.

He was convinced that the determination of the Designated Agent, despite the absence of jurisdiction, was proper as well as the accompanying order for reinstatement. He believed that the Designated Agent has powers conferred upon him to give redress in matters such as his.

Section 63(3a) of the Labour Act provides as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

It is common cause that the provision that confers power on the Designated Agent to give redress to parties is section 63(3a) of the Labour Act.

The role of a Designated Agent was explained in the judgment of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 wherein the court remarked as follows…,.:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Act expressly ousts the jurisdiction of a labour officer where a designated agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Act….,.

What is key in understanding what a designated agent can or cannot do is to understand the meaning of the phrase 'redress any dispute' used in section 63(3a) of the Act.

When used as a verb, the word 'redress' according to the Oxford English Dictionary, means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.”

In as much as the above case discusses the role of a Designated Agent, it does not expressly deal with whether or not a Designated Agent has any powers conferred upon him to deal with appeals.

From a reading of the provision, there is nothing suggesting that a Designated Agent has appellate jurisdiction.

To have an appreciation of the powers bestowed upon a Designated Agent, one has to examine what it is that the Designated Agent has to do in redressing or attempting to redress a dispute.

In Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20…, it was stated;

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a) as read with section 93(1) of the Act that a designated agent can only proceed in terms of section 93 of the Act if he or she has not redressed the dispute.

He or she would be attempting to settle the dispute through conciliation.

There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.”

From the above, it is clear that a Designated Agent can do one of two things, that is;

(i) Redress a dispute by hearing and determining the issues in dispute; or
(ii) Attempt to redress the dispute through conciliation.

He cannot do both.

What is coming up from the above-quoted excerpts from Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 is that the Designated Agent will be redressing or attempting to redress a dispute in a fresh hearing.

Given the above, it is apparent that a Designated Agent does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

In casu, the matter was referred to the Designated Agent by the Labour Court in terms of section 14(c) of S.I. 87/17 which provides as follows:

“Appeals to the NEC

14. The Exemptions Committee of the National Employment Council shall hear and conclude appeals referred to it within seven working days;

(a)…,.

(b)…,.

(c) An appeal against the decision of the Exemptions Committee shall lie with the Labour Court;
if a matter is not determined or concluded within 30 working days, the employee or employer concerned may refer such matter to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act [Chapter 28:01].”

The 'matter' being referred to in subsection (c), in the context of the present matter, is an appeal against the determination of the Appeals Committee.

In other words, the above provision purports to give the Designated Agent power to 'redress or attempt to redress' the determination of the Appeals Committee.

This Court, in a line of authorities, has spoken on this, that, a Designated Agent cannot preside over a matter where a determination has been made: see Watyoka v Zupco (Northen Division) SC87-05; Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19; and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

These matters were analysed in the recent case of Nicholas Mukarati v Pioneer Coaches (Private) Limited SC34-22 where MATHONSI JA concluded on the issue as follows:

“The reasoning in Mabeza, supra, rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Act where a matter is referred to him or her in terms of section 8(6) of the National Code of Conduct.

It concluded that under section 93(1) of the Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the workplace.”

Although the above authorities were dealing with the powers of a labour officer, the same principle applies with equal force to a Designated Agent, as, in terms of section 63(3a) of the Labour Act “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 8(6) of the National Code, which was under discussion in these cases, is similarly worded to section 14(c) of SI 18/17.

Further down on the same page, MATHONSI JA observed the following:

“In fact, in Living Waters Theological Seminary v Chikwanha, supra, the court went further to state that the provisions of section 8(6) of the National Employment Code are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.”

The same can be said about section 14(c) of S.I. 87/17.

It is rendered inoperative by being ultra vires and inconsistent with the provisions of sections 63(3a) and 93 of the Labour Act.

In casu, the Designated Agent presided over a matter over which he did not have jurisdiction.

When there is a determination on the merits of a dispute, a Designated Agent has no jurisdiction, under section 93 of the Labour Act, to redress or attempt to redress such a dispute.

The ramifications of what the Designated Agent did in this situation are clear.

There is no power conferred upon him to hear appeals in terms of the Labour Act.

The matter was improperly referred to him, and, consequently, the proceedings before him and the resultant appeal before the court a quo were a nullity.

There was therefore no proper appeal before both the Labour Court and this Court.

Regarding costs, the appellant had prayed for costs of the appeal. In view of the fact that the matter turned on the interpretation of section 14 of SI 18/17 it would be in the interests of justice that there be no order as to costs.

Given the irregularities deliberated in this judgment; in the result, it is ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Designated Agent and the Labour Court are hereby set aside.

Counsel for the second and counsel for the third respondent submitted that they would abide by the decision of the court.

The first respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018 raising two objections:

(i) The first objection being that this Court does not have jurisdiction to hear the appeal.

The first respondent, relying on Mlilo v The President of the Republic of Zimbabwe SC179-20, argued that the court a quo had determined an application brought in terms of section 85(1)(a) of the Constitution alleging violation of fundamental rights under Chapter IV of the Constitution.

He further argued, that, in terms of section 169(1) of the Constitution, the Supreme Court does not have jurisdiction to hear and determine such an appeal.

He further argued, that, the Supreme Court is a creature of statute and that had the legislature intended to give it jurisdiction to determine appeals of a constitutional nature, it would have said so in express terms as it did in respect of the High Court in terms of section 171(1)(c) of the Constitution.

Per contra, the appellant submitted, that, this Court is the proper forum to hear the appeal.

He argued that section 169(1) of the Constitution pre-supposes the existence of jurisdiction of this Court to hear and determine all appeals as a court of final resort except in constitutional matters where the Constitutional Court has final jurisdiction.

The right to approach the Constitutional Court, directly, from a decision of a lower court only arises in terms of section 167(3) of the Constitution.

He further submitted, that, Mlilo v The President of the Republic of Zimbabwe SC179-20 relied on by the first respondent was inapplicable in that it related to circumstances in which a lower court will have made a decision on constitutional validity or invalidity.

It is only in those instances that a party has direct access to the Constitutional Court.

After hearing submissions on this point, the Court dismissed the point in limine raised by the first respondent as it was of the firm view that it has jurisdiction to hear and determine the appeal.

This Court was in agreement with the appellant, that, section 169(1) of the Constitution confers appellate jurisdiction in all matters on this Court. The Supreme Court has final jurisdiction in all matters except in constitutional matters. The Constitutional Court's decision is final in all constitutional matters.

Section 169(1) of the Constitution provides as follows:

“169 Jurisdiction of the Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

The wording of this provision is clear.

By its very nature, the Supreme Court is a court of appellate jurisdiction and is mandated to deal with all appeals from all subordinate courts. This is evidenced by section 21 of the Supreme Court Act [Chapter 7:13] (Supreme Court Act) which reads:

“21(1) The Supreme Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

(2) Unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine and shall exercise powers in respect of an appeal referred to in subsection (1) in accordance with this Act.”

See also the Preamble to the Supreme Court Act.

On a proper reading of section 169(1) of the Constitution as read with section 21 of the Supreme Court Act, it is manifestly clear that the lawmaker did not intend to oust the appellate jurisdiction of the Supreme Court in constitutional matters. All that the lawmaker did was to strip the Supreme Court of its final jurisdiction in constitutional matters without divesting it of its jurisdiction over constitutional matters.

The submissions by the first respondent, that the appellant would have a second bite of the cherry in having two appeals in one matter, is without merit.

This is because, in the normal course of proceedings, a matter may commence in the Magistrates Court and proceed all the way up to the Constitutional Court.

As regards the applicability of Mlilo v The President of the Republic of Zimbabwe SC179-20, this Court is of the view that it does not apply to the circumstances of this matter.

In that case, this Court was dealing with the question whether an order of constitutional validity issued by the High Court is appealable to this Court rather than directly to the Constitutional Court in terms of section 167(3) of the Constitution.

In the present matter, the application before the court a quo was in respect of an alleged violation of fundamental rights in Chapter IV of the Constitution. This clearly distinguishes it from Mlilo v The President of the Republic of Zimbabwe SC179-20.

It is for these reasons that the preliminary objection on jurisdiction was dismissed.

On 9 January 2008, the respondent engaged the appellant as an Operations Contract Manager in terms of a written agreement.

The agreement provided that the appellant would be an area manager responsible for Ngezi North.

The preamble to this agreement read as follows:

“Sandvik Mining and Construction Zimbabwe have entered into an agreement with various mines to provide maintenance service contracts. Under the terms of these contracts, Sandvik Mining and Construction Zimbabwe has agreed to make human resources available to these mines in order to maintain their equipment.”

At the time of the occurrence of the events central to the dispute between the parties, the appellant was based at Unki Mine.

For reasons known only to the parties, its exact location has never been revealed. It was probably assumed that the location plays very little part in the determination of the dispute.

The parties may be correct.

Early in the morning of 8 October 2014, the appellant and a colleague, one Christopher Tias, left the mine proceeding to Harare. It is common cause that Christopher Tias was the appellant's subordinate.

The appellant was driving.

Sometime around 7am the appellant received a telephone call from Sandi Zaranyika, his immediate supervisor based in Harare. The connection was bad resulting in Sandi Zaranyika terminating the phone call.

When the duo were near Featherstone, Sandi Zaranyika sent a message on Christopher Tias's mobile phone.

Although addressed to Christopher Tias, it is common cause between the parties, that, the appellant was the intended recipient.

He was told to go back to the mine and not to come to Harare until the situation at the mine had become stable.

It is common cause that the appellant was shown the message by Christopher Tias. They proceeded to Harare nevertheless.

The appellant, instead, called a subordinate at the mine. He was given information on the situation. On arrival in Harare, he was informed that the meeting had been cancelled. He was instructed to return to the mine.

On the same day, that is, 8 October 2014, he was given notification to attend a disciplinary hearing on 22 October 2014. The charge against him was that he had willfully disobeyed a lawful order in contravention of section 4(b) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (“the National Code of Conduct”).

The disciplinary hearing was held as scheduled and he was convicted of misconduct on the single charge and was dismissed from employment.

He appealed internally but was not successful.

In accordance with the Code of Conduct, the matter was referred, by the appellant, to a labour officer.

The labour officer was unable to resolve the matter and it was referred to compulsory arbitration for resolution.

The arbitrator found, that, the appellant had not willfully disobeyed a lawful order.

It was his finding, that, the only thing that the appellant did not do was to return to the mine. It was also his conclusion that it was not necessary for the appellant to go to the mine to physically check the situation in view of the fact that “someone competent to do his duties was fully in charge of the mine and confirmed that the situation was under control.”

As a result of the above findings, the arbitrator found that the appellant had committed no wrong justifying his dismissal. He ordered that the appellant be reinstated without loss of salary and benefits, or, in lieu of reinstatement, that he be paid damages if his employment was no longer tenable.

The respondent appealed to the Labour Court, which appeal succeeded.

The Labour Court found, that, the appellant had committed the misconduct that he had been charged with. The learned judge in the court a quo, as a result, found that there was wilful disobedience of a lawful order. The court therefore allowed the appeal and set aside the arbitral award in its entirety.

It is against that decision that the appellant approaches this Court.

The grounds of appeal upon which the appellant seeks relief are the following:

(1) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in finding that the appellant's conduct, in ascertaining the situation at the mine through his subordinate, Luis Matizha, constituted a wilful disobedience to a lawful order. Such a finding is grossly unreasonable so as to raise a sense of shock that no reasonable tribunal properly applying its mind to the question and the order given by the employer would come to that conclusion.

(2) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in failing to appreciate that the effect of the evidence of Luis Matizha showed that he had managed the situation at the mine to be stable. Thus, the court's finding that the witness's evidence connoted that all was not well at the mine was so outrageous in its defiance of logic that no sensible person who has applied his mind to the question to be decided could arrive at it.

This matter proceeded to compulsory arbitration through a reference to the labour officer in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the National Code of Conduct).

The documentation in terms of which the matter was referred to the labour officer is not on record. His deliberations are not on record. His own referral to compulsory arbitration is also not on record.

What is on record is what the arbitrator recorded as the terms of reference by the labour officer to arbitration. The terms of reference agreed by the parties were the following:

Whether or not the claimant was unlawfully dismissed; if so, to determine the appropriate remedy.

It is obvious that, in casu, the termination was effected in terms of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the National Code of Conduct).

The appellant in this dispute was charged with misconduct in terms of the National Employment Code of Conduct. He was subjected to a disciplinary hearing in terms of a Code of Conduct, as required by the law, after which he was dismissed from employment.

Given that the appellant was subjected to a properly conducted disciplinary process which culminated in a verdict and a dismissal consequent thereto, a reference to the labour officer, alleging unfair dismissal, does not accord with the law.

The labour officer did not deal with the merits of the disciplinary process.

On that premise, it cannot be said that the dismissal was unfair as envisaged in terms of the Labour Act.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

This process could only be set aside through an appeal or a review.

The process before the labour officer was none of the above.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Sections 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days or receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct.

The reference to the labour officer, in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006, would, as a consequence, seem to be in direct contrast to the provisions of section 101(5) and (6) of the Labour Act.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Employment Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not so.

In sum, this means that the proceedings before the labour officer are a nullity as are the proceedings before the arbitrator.

It is therefore disquieting to note what the arbitrator said:

“Unless there are other hidden issues, there is absolutely nothing wrong with what the claimant did that warrants dismissal. Moreso when one considers the fact, that, the claimant had a clean record and also making decisions from a managerial realm, there was nothing weird done to warrant dismissal. The issue is simply trivial to say the least; for it seems the respondent simply wanted the claimant to go back to the mine even though the assignment could have been simply and easily done by just making a phone call and check on the stability of operations at the mine, like what the claimant did.”

A perusal of the record will show that a claim for unfair dismissal was presented before the arbitrator.

In his statement of claim, the appellant made reference to the disciplinary proceedings instituted against him and the fact that he was found guilty of the charge of misconduct preferred against him resulting in his dismissal from employment. He also made reference to the fact that he had appealed against the verdict and the penalty to the Appeals Authority which authority confirmed both the verdict and the penalty.

The appellant ends his claim by stating that he was wrongly found guilty.

As a consequence, he prays for reinstatement, back-pay from the date of dismissal, and damages in lieu of reinstatement.

It is clear that the claim brought by the appellant, although disguised as an unfair dismissal, was in actual fact an appeal against the dismissal of his appeal by the Appeals Authority.

This much is obvious from his statement that he was wrongly found guilty.

What he sought was a reversal of the findings of the disciplinary authority.

The question is: did the arbitrator have the jurisdiction to act as an Appeal Tribunal and set aside the decision of the Appeals Authority?

This matter made its way to the arbitrator as a reference to compulsory arbitration from a labour officer acting in terms of section 93 of the Labour Act [Chapter 28:01].

His function, under section 93 of the Labour Act, is to conciliate or settle the dispute, failing which he issues a Certificate of No Settlement and refers it to an arbitrator, under section 93(5) of the Labour Act, where the dispute is a dispute of right.

In Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, at p172, this court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a Code of Conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii))…,.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the Code of Conduct.”

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were:

(i) Firstly, the fact that a determination had been made; and

(ii) Secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

These remarks were made in consideration of the powers that a labour officer is imbued with under section 93 of the Labour Act prior to its amendment in 2015 by Act 5 of 2015.

It is obvious, therefore, that, completed proceedings under a Code of Conduct are not subject to scrutiny by a labour officer as that process is confined to initial complaints where a labour officer exercises his powers under section 93 of the Labour Act in order to conciliate, failing which he is empowered to refer the parties to arbitration.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear, that, in this case, the labour officer presided over a matter over which he did not have any jurisdiction.

As stated in Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act.

In this context, the implications of what the arbitrator did are obvious.

He was aware that the appellant had been dismissed as a result of a finding of guilt made by a disciplinary body set up under a Code of Conduct. He was equally aware that an appeals authority, set up under the same Code of Conduct, had confirmed not just the findings of guilt on the part of the appellant but had also confirmed the penalty of dismissal.

Notwithstanding this knowledge on his part, the arbitrator proceeded to entertain a claim, the premise of which was to set aside proceedings of a disciplinary body.

He obviously was not acting as an Appeals Tribunal.

He however considered himself properly seized with the proceedings. The latter proceedings were, in fact, a re-hearing of the facts of the dispute.

It is pertinent to note, that, the arbitrator did not have regard to the record of proceedings of the disciplinary hearing. The ruling by the arbitrator was couched in a manner which ignored the findings of the disciplinary tribunal. The arbitrator proceeded to substitute his own determination on the facts as if a disciplinary hearing had not been conducted and the appellant dismissed consequent to a finding of guilt.

He exercised a power he clearly did not have.

And yet, by the stroke of a pen, without exercising any appeal jurisdiction over the disciplinary body, the arbitrator went on to set aside the findings of fact reached by the disciplinary authority, which were confirmed by the appeal structures of the respondent.

Such a result would, in my view, lead to an absurdity.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful, and, nothing can stand on that decision.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and that the referral to compulsory arbitration was unlawful, and the proceedings before the arbitrator were, as a result, an irregularity.

In this case, the appeal is against the decision of the Labour Court, which set aside the arbitral award.

The court, in determining the appeal before it, had regard to the record of proceedings of the disciplinary hearing.

In my view, very little purpose would be served in setting aside the proceedings before the arbitrator.

I intend to consider the appeal in light of the findings by the Labour Court with regard to the disciplinary proceedings....,.

PATEL JA: I have read the judgment of GOWORA JA, with which judgment BHUNU JA concurs, and wish to add the following remarks.

While I agree that the appeal is devoid of merit and ought to be dismissed, I have certain reservations apropos the preliminary observations in the main judgment curtailing the jurisdictional role of labour officers and arbitrations under the governing statutory provisions.

In particular, I am inclined to the view, that, section 8 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Code of Conduct), construed in a purposive manner, is reconcilable with sections 93 and 101 of the Labour Act in such manner as to accommodate the jurisdictional competence of labour officers and arbitrators over labour disputes emanating from internal disciplinary proceedings.

Nevertheless, given the view that I take of the merits of this matter, I do not think it necessary to elaborate the aforesaid reservations in the context of this particular case....,.

BHUNU JA: I wish to comment as follows:

I have read the comments by my brother PATEL JA and I do not see how the three (3) sections alluded to by PATEL JA can be reconciled to accord a Labour Officer jurisdiction that he does not have.

It is inconceivable that a Labour Officer can assume jurisdiction over a completed matter by another tribunal without being clothed with appellate or review jurisdiction.

In the absence of specific statutory provisions, it is only appellate or review jurisdiction that authorizes a higher court or tribunal to intervene in the conduct or verdict of a subordinate court or tribunal.

In the circumstances, both the Labour Officer and the Arbitrator acted without power, jurisdiction, or authority to intervene in a matter completed in terms of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 (the National Code of Conduct).

It is for the foregoing reasons that I agree with my sister GOWORA JA.

This is an application for leave to appeal against a judgment of the Supreme Court handed down on 10 June 2022. The Supreme Court judgment determined two consolidated appeals against the applicant with an accompanying order of costs.

The applicant was the Chairman of the National Social Security Authority (NSSA), a public body set up by statute. The first respondent is the Auditor General, the holder of a public office created by the Constitution, and which, at the request of the Government, can carry out special audits of any statutory body or government–controlled entity. The second respondent is a private firm of Chartered Accountants.

On 28 February 2018, the first respondent appointed the second respondent, under contract, to carry out a forensic investigation of the affairs of the National Social Security Authority (NSSA) for the period 1 January 2015 to 28 February 2018.

In due course, the second respondent produced an audit report detailing its findings.

The report produced by the second respondent was adverse to and highly critical of the applicant as Chairman of the National Social Security Authority (NSSA).

Chagrined, the applicant took the report on review before the High Court.

In the review application, he cited both respondents. It was his contention, in the main, that, the audit of the National Social Security Authority (NSSA) by the second respondent, in the circumstances of the matter, was an administrative act or conduct subject to judicial review at common law and under the provisions of the Administrative Justice Act [Chapter 10:28].

He was successful.

In its judgment, the High Court set aside the audit report on a number of bases that are not material to the determination of this application.

In setting aside the report, and, germane to this application, the High Court held that the audit report, authored by the second respondent, on behalf of and under contract with the first respondent, was an administrative act for the purposes of the Administrative Justice Act.

It was its specific finding, and in its own words, that the report was that of the “first respondent acting through the auditors she had appointed.”

In setting aside the report, the High Court affirmatively answered the following three issues that it had set up for itself, and which I paraphrase:

1. Whether, when the second respondent acted for and on behalf of the first respondent, it exercised administrative or public power;

2. Whether the forensic investigation by the second respondent constitutes reviewable action/conduct or decision; and

3. Whether the grounds of review alleged by the applicant were established.

The net effect of the decision of the High Court was to hold that the audit of the National Social Security Authority (NSSA) by a private firm of Chartered Accountants, acting under contract for and on behalf of the first respondent, was an exercise of public power, and, consequently, was subject to judicial review.

The High Court effectively upheld the applicant's main contention, that, a contract audit by the first respondent is an exercise of public power under agency.

Unhappy with the judgment, the respondents filed two appeals, under separate cover, to the Supreme Court.

Although it is common cause that both respondents filed separate notices of appeal, only the grounds of appeal by the second respondent are reproduced and adverted to in the judgment of the Supreme Court.

The consolidated judgment is also a determination of these grounds. They read:

“1. The High Court erred in finding that the appellant's carrying out of a forensic audit on the National Social Security Authority (NSSA) at the behest of the Auditor-General (second respondent) constituted an administrative action which is subject to review at the first respondent's instance and on the alleged grounds.

2. The High Court erred in finding that the appellant, in its report under consideration, exhibited bias against the first respondent when there was no evidence supporting such a finding.

3. The High Court erred in concluding that the appellant did not apply its mind to the issues before it in the absence of any evidence controverting the findings made in the audit report.

4. The High Court erred in concluding that the audit report was unfair against the first respondent in circumstances where he had been given an opportunity to respond to the allegations against him and his responses had been taken into consideration before drawing any conclusions, and, which such conclusions are not only supported by the evidence availed to the appellant but were properly explained in the audit report.

5. The High Court erred in setting aside the report in all aspects pertaining to the first respondent in the absence of evidence demonstrating bias or incompetence or unfair treatment or pointing to any irregularities in every such aspect.”

It was the view of the Supreme Court, that, the two appeals before it could be disposed of by the determination of the first ground of appeal reproduced in full above. The judgment indicates that the court proceeded to set out for its determination the following issue:

“Whether the court a quo misdirected itself in holding that the appellant was exercising public authority subject to judicial review when it carried out the forensic audit for and on behalf of the second respondent.”

Relying on the South African case of Chirwa v Transnet 2008 (4) SA 367 (CC) which discussed the attributes and characteristics that define and identify administrative authorities, and on its interpretation of section 3 of the Administrative Justice Act, the Supreme Court came to the conclusion, that, the second respondent was not an administrative authority, and, therefore, the audit report it authored was not reviewable.

It proceeded, further, to dismiss the argument that the second respondent was an administrative authority as it was the duly appointed agent of a public authority.

In doing so, the Supreme Court then interpreted section 309 of the Constitution that sets up the office of the first respondent and provides for its functions. After setting out the constitutional provision in full it was the Court's finding, that, the Constitution does not confer upon the first respondent the power to, in turn, confer administrative authority on any person.

In the ultimate, the Supreme Court upheld the two appeals and set aside the decision of the High Court.

The applicant now approaches this court for leave to appeal against the decision of the Supreme Court.

In motivating the application, the applicant contends that the judgment a quo raises a constitutional matter in that it purports to interpret the provisions of section 309 of the Constitution in determining the appeals that were before the Supreme Court.

The respondents opposed the application and jointly argued that no constitutional issue arose in the High Court and that the appeals to the Supreme Court were specifically on the jurisdiction of the High Court in terms of the Administrative Justice Act, a non-constitutional matter.

The reference to and interpretation of section 309 of the Constitution by the Supreme Court in its judgment must therefore be regarded as obiter, the respondents proceeded to argue.

Counsel for the second respondent went as far as suggesting, that, the part of the judgment referring to and interpreting the Constitution could in fact be excised from the rest of the judgment without impacting on the fullness of the judgment.

He is probably correct.

In further engagements with the Court, all counsel agreed that the judgment of the Supreme Court could have, and therefore should have, avoided an interpretation of section 309 of the Constitution.

The non-constitutional matter that was before the Supreme Court was capable of resolution on the basis of the law of agency and an interpretation of the statute that authorizes the first respondent to farm out its duties to private audit firms.

The Supreme Court did not, however, avoid the Constitution.

The law on when leave of this court to appeal against a decision of a lower court may be granted has been discussed in a number of decisions of this Court: see Bonnyview Estate (Private) Limited v Zimbabwe Platinum Mine (Private) Limited & Another CC06-19; Cold Chain (Pvt) Limited t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC); Chombo v National Prosecuting Authority & Others CC08-22; Ismael v St John's College & Ors CC19-19; TBIC Investments (Private) Limited v Mangenje & Ors CC15-20; Magurure & Others v Cargo Carriers International Hauliers CC15-16; and Chani v Justice Hlekani Mwayera and Others CC02-20.

Leave to appeal is granted if the intended appeal is against a decision of a subordinate court on a constitutional matter.

There is a growing body of law from this Court spelling out that a decision of a subordinate court is on a constitutional matter if the litigation in that court is unavoidably predicated on such a matter. Put differently, the resort to the interpretation, enforcement or protection of the Constitution in resolving the dispute between the parties must have been unavoidable, taking into account the respective applications of the principles of subsidiarity, avoidance, and ripeness.

In addition, this Court has specifically held that the constitutional matter must have been pleaded in the court of first instance, such that the constitutional matter stands out clearly from such pleadings.

Thus, the mere reference to the provisions of the Constitution in the judgment of the lower court, either in passing or as buttressing a common law position or statutory provision, does not trigger the appellate jurisdiction of this Court.

Therefore, where the provisions of the Constitution are resorted to in the judgment a quo as bulwarking or strengthening a common law position or an interpretation of a statute, such reference to the provisions of the Constitution does not, and cannot, thereby form the ratio decidendi of the judgment of the matter.

The ratio decidendi remains the non-constitutional position at common law or as provided for by statute - albeit finding some support from the Constitution.

Finally, and in any event, where the constitutional matter is not specifically pleaded in the court of first instance, but arises during those proceedings or before any other subsequent court, the provisions of section 175(4) of the Constitution set out the procedure by which the matter may be referred to this Court for the purposes, not of determining the matter, but for answering the requisite constitutional question that will assist in the determination of the matter: see Nyika and Another v Minister of Home Affairs and Another CC05-20.

In casu, it is common cause that the cause of action before the High Court was not predicated on a provision of the Constitution. It was rooted in Administrative Law in terms of which the applicant sought to have reviewed what he alleged was administrative conduct by the first respondent through the agency of the second respondent.

Accordingly, the pleadings did not raise a constitutional matter.

Put differently, the pleadings before the High Court did not call upon that court to interpret, enforce or protect the provisions of the Constitution. Instead, the pleadings sought to establish a basis for having the audit report by the second respondent, under contract from the first respondent, reviewed and set aside.

Because no such matter had been pleaded before it, it stands to reason that the High Court did not decide a constitutional matter.

As is evident from its judgment, the High Court did not invoke any provisions of the Constitution in arriving at its determination on the non-constitutional matter that was before it. The ratio decidendi of its judgment, on the preliminary points alleging fatal misjoinder of the second respondent, was rooted in the contract Law of Agency. It was its finding that the first respondent, a public authority, performed the audit of National Social Security Authority (NSSA) through the agency of the second respondent.

The ratio decidendi of its judgement on the substantive issues raised in the application for review was based on the application of the principles of Administrative Law.

From the foregoing, it follows that no constitutional matter fell for determination on appeal on the basis of the proceedings that had unfolded before the High Court, and, as a result of the judgment of the High Court.

The grounds of appeal that the Supreme Court relied upon for the determination of the two appeals that were before it did not raise any constitutional matter.

This is common cause.

Further, the record of the appeal proceedings does not indicate that a constitutional question arose during the appeal hearing. Had one arisen, the Supreme Court would have been obliged to invoke the provisions of section 175(4) of the Constitution to refer the question arising for answering by this Court.

In the circumstances, and in view of the fact that no constitutional matter was determined by the High Court, that no constitutional matter was the subject of appeal before the Supreme Court, and that no constitutional matter arose during the appeal proceedings, the text of the Constitution should not have been interpreted by the Supreme Court.

And, in the ordinary course of constitutional litigation in this jurisdiction, no appeal should lie to this Court.

There is, however, one disconcerting aspect of this matter which exercises the mind.

As argued by all counsel, the Supreme Court purported to decide the appeals that were before it, and unnecessarily so, by interpreting the provisions of the Constitution.

This purported but unnecessary interpretation of the Constitution remains extant. It also raises two possible debates:

(i) Firstly, the resort to the Constitution, in a matter that did not require such an approach, may arguably constitute a procedural irregularity in the proceedings of the Supreme Court.

(ii) Secondly, and more importantly in my view, if the Supreme Court decided a non-constitutional matter by invoking the Constitution, against the principles of subsidiarity, avoidance, and ripeness, then, it may have fallen into a grave error, which error can only be corrected by this Court.

In this regard, it may be pertinent to note, that, before it went into an interpretation of the Constitution, the court a quo did not at any stage advert to and discount these principles.

It is not desirable that I debate the correctness or otherwise of judgment of the Supreme Court in any detail. This is so in view of the order that I intend to make in this application.

I however wish to highlight that a reading of the Supreme Court judgment, prima facie, suggests that the court a quo intended the interpretation of section 309 of the Constitution to be the ratio decidendi of its judgment as this is the only definitive and dispositive part of the judgment.

This is so because it is this interpretation of the Constitution that purports to be in direct answer to the issue that the court had to determine.

The other debate, on the characteristics of the second respondent as a private entity, was neither here nor there, as the identity of the second respondent, as an agent of the first respondent, was never in issue at any stage of the proceedings.

I make the above observations mindful that I could be mistaken in my reading of the Supreme Court judgment. In this regard, it matters not that all counsel agree with my understanding of the resort to the Constitution by the Supreme Court, which we collectively believe was unnecessary.

I further believe that such resort to the Constitution could be misleading both in procedure and in content.

There is, however, the real possibility that this Court, sitting quorate, may understand the Supreme Court judgment very differently.

The absence of clarity in the matter is, in my mind, sufficient to trigger the appellate jurisdiction of this Court to clarify the correctness of the position that the Supreme Court took or ought to have taken in the matter.

I am therefore inclined to grant leave to appeal in this matter. In my view, it is eminently in the interests of justice that leave be granted to bring this matter before the Court.

For the avoidance of doubt, the order that I make is not an acknowledgment or acceptance that the matter before the Supreme Court was constitutional in nature. The order is made on the basis, that, in determining a non-constitutional matter, the Supreme Court resorted substantively to the provisions of the Constitution to resolve the dispute. It may have erred in this regard.

Regarding costs, there is no justification that any of the parties be mulcted with an order of costs.

In the result, it is ordered that:

1. The application for leave to appeal be granted with no order as to costs.

2. The applicant is to file his notice of appeal within 10 days of this order.

PATEL JCC: I am in total agreement with the foregoing reasoning and judgment of MAKARAU JCC and make a few additional observations in support of the position that she has taken.

The first issue concerns the primary thrust of the decision rendered by the Supreme Court (the court a quo).

Although there was no constitutional question before the High Court, the matter before that court having been determined on exclusively statutory and common law grounds, the court a quo appears to have fixated on section 309 of the Constitution in answering the question that it had formulated for determination.

It found that the second respondent (BDO Zimbabwe Chartered Accountants) was not an administrative authority and that its audit reports were therefore not reviewable. Pursuant to that finding, the court proceeded to hold that section 309 of the Constitution did not confer upon the first respondent (the Auditor-General) the power to delegate to or confer administrative authority upon any other person or entity.

I fully agree with counsel for the respondents that the decision of the court a quo, on section 309 of the Constitution, was not entirely necessary and that the court could have determined the matter before it on the basis of the common law and the provisions of the Administrative Justice Act [Chapter 10:28] and the Audit Office Act [Chapter 22:18].

Having regard to the principle of subsidiarity, the matter was evidently resoluble on purely statutory or common law grounds. However, the court a quo declined to do so and opted, instead, to focus on the constitutional dimension of the case.

It made a definitive ruling on the interpretation of section 309(2) of the Constitution, which ruling was dispositive of the dispute between the parties.

As is aptly observed by MAKARAU JCC, the court may well have erred in making this foray into the constitutional realm; and this is an aspect that needs to be canvassed before the full bench of this Court.

Moving on to the substantive merits of the Supreme Court judgment, it seems to me that its decision on the interpretation of section 309 of the Constitution is not simply obiter but purports to be a definitive pronouncement.

It remains extant and binding, not only on other subordinate courts but also on the Supreme Court itself.

In my prima facie and tentative opinion, without seeking to pre-empt the eventual outcome of this matter on appeal, the decision of the court a quo, on the meaning and scope of section 309 of the Constitution is probably erroneous and incorrect; and, unless it is duly set aside, it will undoubtedly have a largely negative impact on the proper functioning and operations of the office of the first respondent.

It then becomes necessary for me to elaborate my reasons for adopting this position.

Section 309(1) of the Constitution establishes the public office of the Auditor General. Section 309(2) prescribes the multifarious functions of that office, viz. to audit the accounts of all governmental, provincial, metropolitan, and local authority departments, to carry out special audits of the accounts of statutory bodies and government-controlled entities, and to order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property.

Additionally, the Auditor-General is enjoined “to exercise any other function that may be conferred or imposed on him or her by or under an Act of Parliament.”

Section 309(2) of the Constitution mandates public officers to comply with such orders as may be given to them by the Auditor-General.

Turning to the relevant provisions of the Audit Office Act, we find that section 9 of the Act specifically empowers the Auditor General to appoint any registered public auditor to carry out any of the auditing functions “that are required by this Act or by any other enactment” and to report the results of such audit to the Auditor-General.

Reading section 9 of the Audit Office Act together with section 309 of the Constitution, it seems to me very difficult indeed to conclude that the Auditor-General cannot delegate any of his or her administrative functions to a registered public auditor.

By the same token, it is equally difficult to imagine that a qualified auditor, who has been duly appointed or delegated by the Auditor General, would exercise anything other than administrative authority.

In this context, the import of the maxim qui facit per alium facit per se is entirely apposite and unavoidable.

I consider it necessary to expatiate this analysis of the relationship between section 309 of the Constitution and section 9 of the Audit Office Act so as to underscore the practical and administrative difficulties that would eventuate if the judgment of the Supreme Court on this particular aspect were to be left un-interfered with and intact.

There can be no doubt that the Auditor-General is entrusted with a vast array of public auditing functions relative to the management and operations of every State entity. Given the magnitude of this task, it would be highly unrealistic to expect the office of the first respondent to perform its functions efficiently, effectively, and expeditiously without the complementary assistance of auditors from the private sector.

The unavoidable consequence of the Supreme Court's interpretation of section 309 of the Constitution would be to undermine the overall functionality and efficacy of that office and to divest it of its public nature and status.

It is also necessary to consider the converse impact of the Supreme Court ruling.

If it were to be applied without qualification, it would be perfectly possible for the office of the Auditor General to invoke that ruling in order to avoid its responsibility for any administrative irregularity that might be perpetrated by chartered accountants appointed by that office and acting under its aegis to carry out public auditing functions.

This possibility would also serve to undermine public confidence in the operations and credibility of the office in the performance of its myriad functions.

On the procedural front, MAKARAU JCC has succinctly articulated the approach of this Court in considering applications for leave to appeal. That approach might ordinarily operate to preclude the grant of leave to appeal in casu.

However, by dint of the particular circumstances of this case, coupled with the infelicitous implications of the Supreme Court's interpretation of section 309 of the Constitution, I think it prudent and necessary that the matter be fully ventilated before the entire bench of this Court.

In the final analysis, it seems to me that the intended appeal to be mounted by the applicant carries reasonable prospects of success.

I am also of the considered view, that, it is in the public interest, and, consequently, in the interests of justice, that the ruling of the court a quo curtailing the delegation of its administrative functions by the first respondent be revisited and either rectified or set aside.

I accordingly concur with the judgment and order rendered by the learned MAKARAU JCC.

The contentions of the second respondent cannot give rise to any issues for determination.

In this application, the applicant seeks the following relief:

1. A declaration that the refusal by the Magistrate to refer the issues raised by the applicant to the Supreme Court is wrong at law, and, consequently, a breach of the applicant's right to the protection of the law enshrined in section 18(1) of the former Constitution of Zimbabwe.

2. A declaration that the decision by the Attorney-General to proceed with the prosecution of the applicant, more than five years after the alleged commission of the offence, is a violation of the applicant's right to the protection of the law under section 18 of the former Constitution.

3. A declaration that the present application is properly before the Supreme Court.

4. An order, that, the prosecution of the applicant, being a violation of her right under section 18, such prosecution be and is hereby permanently stayed.

5. An order that the respondents pay the costs of this application.

The applicant and one Cecil Rhaniel Chengetai Muderede (“Muderede”) were engaged in an intimate relationship until about 2005 when the relationship came to an end. At the centre of the dispute giving rise to the present proceedings are two properties:

The first is Number 4 Goodall Avenue, Emerald Hill, Harare registered in the name of Helce Enterprises (Pvt) Ltd, a company incorporated according to the laws of Zimbabwe. It is common cause, that, from the time of its incorporation, the applicant's name appeared on the official records of the company as one of the two directors of the company.

The second property is Number 106 Lomagundi Road, Avondale, registered in the name of another company, Drisdane Investments (Pvt) Limited. It is not in dispute that it was Cecil Rhaniel Chengetai Muderede who purchased this property.

In May 2004, Cecil Rhaniel Chengetai Muderede was specified under the Prevention of Corruption Act [Chapter 9:16].

Following this development, the applicant proceeded to the offices of the Registrar of Companies, where, using the specification of Cecil Rhaniel Chengetai Muderede, she was able to remove the name of Muderede as a director of Helce Enterprises, and, in his place, had the names of her brothers, Kumbirai Matiashe and Kudzai Matiashe, substituted as directors.

On the strength of a Board resolution passed by the new Board, the applicant was able to obtain a duplicate copy of the Deed of Transfer for Number 4, Goodall Avenue, Emerald Hill. The applicant was able, using the same modus operandi, to get another duplicate copy of the title deeds for Number 106 Lomagundi Road, Avondale.

On 7 June 2007, Cecil Rhaniel Chengetai Muderede filed a complaint of fraud against the applicant with the police.

The allegation, on both counts, was that the applicant had misrepresented that Cecil Rhaniel Chengetai Muderede had resigned as a director of Helce Enterprises (Private) Limited and Drisdane Investments (Private) Limited, and, in his place, had appointed her two brothers, Kundai Matiashe and Kumbirai Matiashe. It was alleged, that, on the basis of the misrepresentation, the applicant managed to get duplicate title deeds for both properties.

On 25 June 2007, the applicant made a statement to the police. She was, thereafter, placed on remand.

On 26 February 2008, the charges against the applicant were withdrawn by the State.

However, on 17 July 2012, the applicant was served with summons to appear in court on 6 August 2012.

On 21 August 2012, the applicant then filed an application in the Magistrates Court seeking a declaration that the decision by the Attorney-General to try her after six years violated her right to the protection of the law enshrined in section 18 of the Constitution and that the matter be referred to the Supreme Court in terms of section 24(2) of the former Constitution.

In papers filed before the Magistrates Court, the appellant stated, that, the delay of six years during which no trial had taken place was wholly attributable to the State.

She had always been available to attend court to answer any allegations. Further, she stated that one of her defence witnesses, Doctor Iris Sarupinda, who was present during the time she had a relationship with Cecil Rhaniel Chengetai Muderede, had relocated to Europe and she was not aware of her present whereabouts.

The appellant did not give oral evidence in support of her application.

In the Magistrates Court, it was not in dispute that on 24 July 2009 and 2 November 2010 the applicant filed a complaint with the police against Cecil Rhaniel Chengetai Muderede and his wife Michelle. In the complaint, she alleged that the two had fraudulently used the title deeds for the two properties to secure mortgage loans in favour of Shankuru Estates. She also complained that a Mr Magwere, from the office of the Registrar of Deeds, a Mr Shadreck Beni from Metropolitan Bank, and one Mujokoro, a legal practitioner, had colluded with Muderede and his wife in the fraudulent registration of the mortgage bonds over the two properties.

The State opposed the application for referral of the matter to this Court and led evidence from the Investigating Officer, Detective Inspector Charles Chirove.

The Investigating Officer told the court, that, a number of factors had contributed to the delay in the prosecution of the matter. In 2008 and 2009, the country experienced a severe economic meltdown which affected the ability of the police to carry out its functions. At one stage, the police received reports that Cecil Rhaniel Chengetai Muderede was in South Africa.

Because Cecil Rhaniel Chengetai Muderede could not be located, the charges against the applicant were withdrawn.

Thereafter, in 2009 and 2010, the applicant filed reports with the police, based on the same facts, against Cecil Rhaniel Chengetai Muderede, his wife, and other persons resulting in the arrest of Muderede on fraud charges.

When both cases were sent to court, Cecil Rhaniel Chengetai Muderede queried why his complaint, which had been filed earlier, was being overtaken by the complaint filed later by the applicant. Muderede even approached the Anti-Corruption Commission alleging that the police were giving the applicant preferential treatment.

The applicant also harassed the police and even made complaints to Police General Headquarters against the witness and several of his fellow officers. She was saying she wanted to be consulted before the police made any decision on this matter.

He told the court he formed the opinion that the applicant was throwing spanners into the works to ensure that the matter went nowhere.

In an effort to make some progress, the State then reached an agreement with the applicant and Cecil Rhaniel Chengetai Muderede, that, the case in which Muderede was an accused was to be tried first. In the event that Muderede was convicted, then, the case in which he was complainant would die a natural death. However, in the event that he was acquitted, then, the case in which the applicant was an accused would then commence.

As it so happened, Cecil Rhaniel Chengetai Muderede was acquitted in 2012 as a result of which the applicant was then summoned to appear in court.

It was his evidence, that, it was the applicant who was largely to blame for the delay.

The Magistrates Court was of the view, that, since the applicant had participated in the agreement which had contributed to the delay she cannot now be heard to complain.

On that basis, the court found the application to be frivolous and vexatious.

The court further found, that, the application was an attempt to further delay the proceedings. The court therefore dismissed the application.

Following that decision, the applicant filed the present application in terms of section 24(1) of the former Constitution.

It seems to me that the issues that arise for determination are twofold. These are:

(i) Firstly, whether the matter has been properly brought before this Court in terms of section 24(1) of the former Constitution.

(ii) Secondly, if so, whether the applicant is entitled to a permanent stay of proceedings.

In dismissing the application for the referral of the matter to the Supreme Court, the magistrate commented:

“Accused now wants to renege from her commitment that she would only be prosecuted if only Cyril Muderede was acquitted because the facts forming the basis of the court charges were similar. Cyril Muderede has now been acquitted, so, the natural interpretation of their agreement should follow. Accused participated in circumstances which caused the delay so she should not cry foul, because, if she had no hand in this matter, the State could have proceeded to cause the trial of both matters at the same time but in different courts.

Accordingly, I find that the application is just meant to further delay proceedings and it is frivolous and vexatious. Accordingly, the application is dismissed.”

It is common cause, that, at the time of the making of the application, there had been a delay of over five years in the prosecution of the matter. That this delay was presumptively prejudicial is without doubt.

The applicant was entitled to challenge the decision of the State to prosecute her on a charge of fraud in respect of which she had been charged more than five years previously. The delay was such as to trigger an inquiry into the possible violation of the applicant's rights to the protection of the law.

It is clear from his reasons for dismissing the request for referral, that, the Magistrate did not ask himself whether a constitutional issue did arise from the proceedings.

He considered that the applicant had contributed to the delay and that she was trying to further delay the day of reckoning. On that basis, alone, he found the application to be frivolous and vexatious.

I am satisfied that the Magistrate was wrong in determining the application on the basis of who was to blame for the delay.

As counsel for the applicant correctly submitted, the Magistrate asked himself the wrong question and inevitably came to the wrong conclusion.

Indeed, the State conceded that the decision to refuse to refer the application was wrong and that it violated the applicant's right to the protection of the law as provided in section 18(1) of the former Constitution.

In these circumstances, the applicant was entitled to approach this Court directly: see Martin v Attorney General & Another 1993 (1) ZLR 153 (S)…,.; Mukoko v Commissioner-General of Police & Ors 2009 (1) ZLR 21, 24B.

This Court must now place itself in the position it would have been in had the Magistrate, as he ought to have done, referred to it the question raised before him.

At the end of the hearing, the application was dismissed and it was indicated that reasons for the decision would follow in due course. These are the reasons.

This matter was referred to the Supreme Court, by the magistrate, in terms of section 24(2) of the Constitution of Zimbabwe which provides as follows:

“24 Enforcement of protective provisions

(1)…,.

(2) If in any proceedings in the High Court, or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall, refer the question to the Supreme Court, unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

The referral came about in the following manner:

On 8 February 2012, the applicant, who is a registered legal practitioner, appeared before the magistrate in Gweru in response to a summons to answer a charge of contravening section 16(2)(b) of the Public Order and Security Act [Chapter 11:17].

The offence was allegedly committed on 25 June 2005.

When the charge was put to him, the applicant did not plead to it, but, instead, made an application for the matter to be referred to the Supreme Court in terms of section 24(2) of the Constitution. It was his intention to seek an order:

“For a permanent stay of prosecution in terms of the Constitution of Zimbabwe, in section 18(2), on the basis that my right to a fair trial within reasonable time has been violated.”

He alleged that the charges emanated from an incident which occurred on 25 June 2005 in Zaka, and, that, a warned and cautioned statement was recorded in July of the same year.

The delay in bringing him to trial amounted to six years and eight months.

The allegation was that the delay was attributable to the conduct of the State because he resides in Masvingo and has never removed himself from the jurisdiction of the courts. He averred, that, nothing could have been done by him to assert his rights especially as the matter was not brought to court on a remand hearing.

He alleged further that “the only [State] witness who is available” had his statement recorded on 26 June 2005. According to him, the investigations were then complete and the prosecution ought to have taken place, at the latest, in December 2007, when authority was granted by the Attorney General to prosecute.

He alleged, that, the failure by the State to bring him to trial within a reasonable period constituted a violation of his constitutional right enshrined in section 18 of the Constitution.

The Prosecutor, in response, submitted that the delay “was not a deliberate act by the State.”

In the first place, one of the State witnesses had died. Secondly, there was, on record, a letter, dated 10 August 2008, wherein the applicant had requested that he be prosecuted by a person who did not know him; and thirdly, the applicant is a Deputy Minister tasked with national duties and the police were having difficulties in effecting personal service of the summons on him.

After the authority to prosecute was granted by the Attorney General, in 2007, there was a shortage of resources and transport.

The Prosecutor further alleged, that, when the matter was due to be heard, the Director of Public Prosecutions directed that the trial be heard in Gweru and not Masvingo.

Most of the court officials declined to deal with the matter because they knew the applicant on professional grounds, and, even on the date of the hearing, two court officials refused to entertain the matter on professional grounds.

Accordingly, the delay could not be wholly attributable to the State.

No evidence, whether on affidavit or viva voce, was led by the applicant in support of his allegations.

This is totally unacceptable.

In S v Banga 1995 (2) ZLR 297 this Court remarked as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived. It was wholly insufficient to make a statement from the bar, and then to point soley to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay. Such a fundamental omission on the part of the defence is fatal to the success of the application.”

The magistrate was satisfied, that, the raising of the question of the violation of the applicant's constitutional right was not frivolous. He referred the matter to this Court.

The referral was improper.

This Court has so stated time and time again. As far back as 1995, it was said:

“It seems to me, also, that, before permitting an accused person to raise the question of not having been brought to trial within a reasonable time, the lower court should be satisfied, that, ample written notice has been given to the State, with a copy filed of record, of the intention to advance the complaint. The prosecution is entitled to be afforded the time and opportunity to investigate the cause of the delay and to be ready to adduce evidence as to the reasons therefor, if it is considered necessary to do so.”

See S v Banga 1995 (2) ZLR 297 at p302.

The prosecutor must be given written and adequate notice of the accused person's intention to make the application.

The magistrate must hear evidence from the applicant and the prosecutor must be given an opportunity to cross examine the applicant and to lead any evidence it considers necessary, after which the magistrate must make a ruling based on the evidence.

However, this was not done.

At the hearing before this Court, it was glaringly apparent that there were disputes of fact which needed to be resolved.

It is the function of the referring court to resolve disputes of fact.

It goes without saying, that, a delay of seven years in prosecuting a criminal charge is presumptively prejudicial and would, generally speaking, trigger an inquiry by this Court into the constitutionality of the delay: see Gadzanai Nkomo & Anor v The State SC52-06.

However, the applicant has placed no evidence before the Court from which it can be concluded, that, the delay in bringing him to trial is totally attributable to the State, has caused him prejudice, and is a violation of his right to a fair trial.

I stress here, that, the absence of evidence is fatal to the application.

In S v Banga 1995 (2) ZLR 297 at p301, it was held that the absence of viva voce evidence could be fatal to an applicant's case because it “completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused…, and, that it has impaired his ability to exonerate himself from the charge due to death, disappearance, or forgetfulness of potential witnesses.”

The application in casu, having no evidential basis, is fatally defective.

This is an appeal against the whole judgment of the Labour Court, which upheld the decision of the Appeals Board of the National Employment Council Banking ("NEC") to the effect that the charge preferred against the respondent was inappropriate and that he had been unfairly dismissed.

The respondent was employed by the appellant as an Administrative Clerk and was also the chairperson of the workers committee. The management of the appellant and the workers' committee had been in a dispute over salary increments of the employees for some time. In August 2010, the dispute was referred to a conciliator, who, in September 2010, issued a Certificate of No Settlement.

Thereafter, between 8 and 15 September 2010, the respondent sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees' salaries. He also stated that the workers' committee had decided to embark on a collective job action to press their interests. The emails were sent through the appellant's IT facility to more than ten recipients at a time.

On 23 September 2010, the respondent was charged with misconduct for contravening section 11(1) of S.I.273 of 2000 (“the Code"), it being alleged that he had acted in a manner which was inconsistent with the fulfilment of the express or implied conditions of his contract.

The basis of the charge was that the respondent had generated offensive emails to a group of staff members against the Bank's standing policy contained in its Information Security Management Policy Document (“IT Policy Document”), particularly sections 4.4 and 4.4.1.

It was also alleged that the contents of the emails were inflammatory and contained confidential information. Further, that the responses that the e-mails generated from staff members who received them ended up congesting the network, thus, interrupting normal business communication in the Bank.

A disciplinary hearing was held in October 2010.

The respondent was found guilty of the misconduct with which he was charged and dismissed from his employment. He appealed to the Grievance and Disciplinary Committee whose proceedings ended in a deadlock. The matter was then referred to a second Grievance and Disciplinary Committee which also ended in a stalemate.

Thereafter, the matter was placed before the National Employment Council Banking Appeals Board, which held that the conduct complained of did not constitute an offence in terms of the charge that had been preferred against the respondent. Accordingly, it held that the charge preferred against the respondent was inappropriate. It stated, further, that although the respondent exceeded the limit of the number of emails allowed by the respondent's IT Policy Document, thereby breaching the appellant's standing policy, the e-mails were neither inflammatory nor offensive, and that no confidentiality had been breached.

It also stressed that the respondent's conduct was in pursuit of a right to represent workers and that the emails were meant to call for collective job action, or, at least, put pressure on the appellant to accede to the workers' wage demands. Consequently, the National Employment Council Banking (NEC) Appeals Board ordered that the respondent be reinstated to his former employment without loss of salary or benefits.

Significantly, it did not order an alternative of damages in lieu of reinstatement in terms of section 89(2)(c) of the Labour Act [Chapter 28:01].

Aggrieved by the decision of the National Employment Council Banking (NEC) Appeals Board, the appellant appealed to the Labour Court. It averred that the Appeals Board..., erred in failing to afford to the appellant any alternative to reinstatement.

Per contra, the respondent submitted that..., the National Employment Council Banking (NEC) Appeals Board was not mandated to give an alternative for damages in lieu of reinstatement. Further, that it was not bound by section 89(2)(c) of the Labour Act because that provision only relates to the Labour Court in the exercise of its functions and not internal structures such as the National Employment Council Banking (NEC) Appeals Board....,.

The appellant's second ground of appeal...,  has merit and is hereby upheld.

This finding renders the appellant's last ground of appeal irrelevant to the determination of this appeal.

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:

1. The appeal is allowed with costs.

2. The judgment of the Labour Court is hereby set aside and substituted as follows:

(i) The appeal is dismissed with costs.

(ii) The appellant shall reinstate the respondent to his former position without loss of salary and benefits or pay damages to the respondent in lieu of reinstatement.

We further indicated that the reasons for our decision would follow in due course. These are the reasons.

The appellant was employed by the respondent as a Stores Clerk. On 12 February 2009, he issued a hydraulic pump to another employee without recording the issuance in the Stores Book. After the disappearance of the pump, the co-employee was convicted of theft. The appellant himself was also charged but later acquitted.

Following internal disciplinary proceedings, the appellant was dismissed.

The matter was referred to the relevant National Employment Council and then to an arbitrator. The latter referred the case back to the respondent's Disciplinary Committee to rehear the matter. The Disciplinary Committee found the appellant guilty of theft and that decision was confirmed by the respondent's Appeals Committee.

On appeal to the National Employment Council, it was ordered that the appellant be reinstated.

The respondent then appealed to the Labour Court on the ground that the appellant should have been found guilty of theft.

The Labour Court found the appellant not guilty of theft on the basis of what it regarded as purely circumstantial evidence. Instead, it found him guilty of negligence because of his apparent admission to that effect in the proceedings before the Disciplinary Committee. The court took the view that negligence was a competent verdict on a charge of theft. It also found that the appellant's negligence had resulted in prejudice to the respondent, and, therefore, constituted a grave offence warranting dismissal for a first offence. The court set aside the conviction of theft and substituted a conviction of negligent performance of duty resulting in loss to the employer. It then confirmed the penalty of dismissal.

The appellant now seeks an order for his reinstatement or damages in lieu thereof. His grounds of appeal are threefold:

(i) That the applicable Code of Conduct only permits dismissal for negligence following two prior warnings;

(ii) That the court's finding of negligence was not the subject of appeal; and

(iii) That negligence is not a competent verdict on a charge of theft.

I shall deal, firstly, with the last ground of appeal.

As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases.

By the same token, a disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law. Nevertheless, there are certain basic principles that neither a court nor tribunal can depart from.

One of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. In other words, both offences must bear some legally cognisable affinity with one another.

In our criminal law, as is probably the case in any other legal system, the essential elements of theft and offences based on negligence do not share any meaningful convergence. They are sui generis and fundamentally distinct offences. In my view, the same must apply to the treatment of these offences qua acts of misconduct in disciplinary matters.

This is clearly recognised in the Employment Code of Conduct applicable in the present matter – as prescribed in the Collective Bargaining Agreement: Engineering and Iron and Steel Industry (S.I.301 of 1996), amending the principal agreement contained in Statutory Instrument 282 of 1990, S.I.282 of 1990.

The Schedule to the Code of Conduct sets out four broad categories of misconduct and defines the diverse offences constituting misconduct. Negligence is identified as an act of misconduct under item B(4)(b), while the specific offence of theft is captured under item D(c).

They are clearly separate and distinct acts of misconduct.

The appellant in casu was charged with theft as defined in item D(c). The Labour Court found him guilty of negligence. That finding of negligence was clearly not a competent verdict on the particular charge of theft preferred against the appellant. In this regard, the court patently ignored the specific provisions of the Code of Conduct that should have guided its decision in the matter.

In short, as was conceded by counsel for the respondent, in his curious but not inappropriate reference to a malapropism having been committed, the court's finding was grossly erroneous....,.

This is an appeal against the whole judgment of the Labour Court (the court a quo). The order appealed against is dated 14 November 2018.

That order upheld the respondent's objection in limine to the effect that the appellant's claim had prescribed.

Consequently, it dismissed the appellant's application for condonation of late noting of appeal and extension of time within which to note the appeal.

Aggrieved by the judgment a quo, the appellant approached this Court, on appeal, for relief.

The appellant subsequently applied for leave to appeal to this Court. The application was granted by the court a quo on 19 December 2018 with costs being costs in the cause....,.

The appellant was employed by the respondent as a truck driver/salesman. He was charged with theft of his employer's property and he paid an admission of guilt fine to the police. He was subsequently dismissed from employment for theft in terms of the respondent's registered Code of Conduct on 29 January 2015.

He appealed to the Works Council without success.

On 18 March 2015, he was served with a letter advising him of the dismissal of his appeal, and, if aggrieved, to appeal to the court a quo within a period of 14 days in terms of the registered Code of Conduct.

The appellant did not appeal to the court a quo within the prescribed time limit.

He applied for condonation of late noting of appeal and extension of time within which to note the appeal. His application was successful, and, on 20 January 2016, he was ordered to lodge his appeal within seven (7) days of the order.

The appellant was, again, in default, by failing to comply with the seven (7) days period.

He, again, belatedly approached the court a quo two (2) years later, on 17 August 2018, with an application for condonation of late noting of appeal and extension of time within which to note the appeal.

The application was unsuccessful hence this appeal.

In dismissing the application, the court a quo found, that, the appellant's cause of action had prescribed in terms of the Prescription Act [Chapter 8:11]. This was because of his failure to successfully prosecute his appeal within the prescribed 3 year period from the date of his dismissal.

The court a quo also found, that, in the absence of a provision in the registered Code of Conduct authorising it to extend the 14-day period within which the appellant was obliged to appeal, it had no jurisdiction to extend the dies induciae.

Arising from the above two findings of the court a quo, the appellant has raised the following two grounds of appeal:

“1. The court a quo erred and misdirected itself at law by concluding that the appellant's right to appeal the decision of the Works Council had prescribed in terms of the Prescription Act [Chapter 8:11] by computing the period (of) prescription began to run from 18 March 2015, while overlooking the fact that the Appellant's right to appeal, and time to appeal, had been successfully condoned and extended under LC/H/19/16 granted on the 20th of January 2016.

2. The court a quo erred and misdirected itself by concluding that (the) Labour Court does not have jurisdiction and power to condone late filing of appeals sought to be made outside the days stipulated by an Employment Code agreed to by the parties and neither can the Labour Court extend the time within which such appeals can be made outside the days stipulated in an employment Code.”

The grounds of appeal raise two issues for determination:

1. Whether or not the appellant's cause of action has prescribed.

2. Whether or not the Labour Court has the jurisdiction to extend the time within which to appeal set out in the employment Code of Conduct.

It is trite that ordinary debts are irrevocably extinguished by prescription after three (3) years in terms of section 15(d) of the Prescription Act.

Section 2 of the Prescription Act defines a debt as including anything that may be sued for. That definition squarely brings an appeal within the ambit of the definition of a debt.

The definition therefore renders an appeal subject to the Prescription Act.

It is therefore necessary to ventilate the time frames in this case to see if the appellant's appeal falls foul of the Prescription Act.

In this regard, it is common cause that the appellant's cause of action arose from his dismissal from employment by the disciplinary committee on 29 January 2015. The notice of dismissal was served on him on 6 February 2015.

He lodged various appeals and applications which interrupted the running of prescription in terms of section 7(2) of the Prescription Act. Subsection (3)(b), however, provides, that, if one fails to successfully prosecute his cause of action, and, in this case, his appeal, to finality, the interruption shall lapse and the running of prescription shall not be deemed to have been interrupted.

The subsection provides as follows:

“(3) Any interruption in terms of subsection (2) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question —

(a) Does not successfully prosecute his claim under the process in question to final judgment; or

(b) Successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.”

The section is couched in clear, unambiguous terms.

Once a litigant has failed to successfully prosecute his cause of action, and, in this case, his appeal, to finality, the interruption lapses and the running of prescription is not deemed to have been interrupted.

It is common cause, that, on 20 January 2016, the court a quo gave the appellant seven (7) days within which to prosecute his appeal with effect from the date of the order. He failed to prosecute his appeal within the prescribed period with the result that his appeal lapsed and prescription was deemed not to have been interrupted by operation of law.

Prescription began to run on 6 January 2015 when he was served with notice of dismissal; the set period of prescription of three (3) years had already set in as at the time of the court a quo's judgment on 14 November 2018.

In Hodgson v Granger & Anor 1991 (2) ZLR 10 (H) the court articulated the purpose of prescription, it said:

“It is important, in this exercise of interpretation, to emphasise, that, it is trite that the whole purpose of statutes of limitation is to ensure that a person who has a valid cause of action, of which he is aware, proceeds reasonably timeously to prosecution thereof before events become 'stale'. It is absolutely clear that the purpose is to penalise the dilatory creditor but not a creditor who is unaware, through no fault of his own, of the cause of action at his disposal.”

As the appellant was eminently aware of his cause of action right from the beginning, way back in January 2015, his dilatoriness in prosecuting his appeal deserves censure to give effect to the purpose of the Prescription Act.

The net effect of the appellant's failure to prosecute his appeal in the court a quo is that there can be no valid appeal before this Court in the absence of any appeal having been placed before the court a quo in respect of this matter.

The appellant's failure to successfully note his appeal with the court a quo within the 7-day period, as ordered by the court, sounded the death knell for his appeal as the 3-year prescription period had already run its course.

From the foregoing, the learned judge a quo cannot be faulted for holding that the appellant's appeal has prescribed for want of successful prosecution within a period of three (3) years.

That finding of fact strips the court of the jurisdiction to determine the second issue.

That being the case, the appeal can only fail. Costs follow the cause.

It is accordingly ordered that:

1. The appeal be and is hereby dismissed.

2. The appellant is to bear the costs of suit.

This is an appeal against the judgment of the Labour Court confirming, with an amendment, a ruling by a Labour Officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015.

The appellant seeks an order setting aside the confirmation, and, in its place, another order dismissing the application for confirmation with no order as to costs.

Having gone through the papers filed in this matter, and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the Labour Officer.

The first respondent herein, Fungai George Mutasa, is a Labour Officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”) (A.B. Morar, A.J. Bosch. E. Eston, E. Gavaza, A.J. Van Rensburg, R.T. Karidza, L. Mabika, D.I. Mackintosh, I. Middleton and Mushoriwa).

He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of section 93(5)(c) of the Labour Act [Chapter 28:01] (“the Act”).

The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company.

In addition to the benefits they enjoyed in Zimbabwe, in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa.

On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011.

It was indicated, in that communication, that, the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee's choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee's monthly United States Dollar package in Zimbabwe with effect from 1 March 2011.

As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee's monthly United States Dollar package in Zimbabwe.

The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages.

This was to no avail.

The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.

Owing to the stalemate, the respondents approached the High Court, and, in an order dated 26 February 2015, the court determined that the Triangle Senior Staff Pension Fund (TSSPF) remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the Triangle Senior Staff Pension Fund (TSSPF). The appellant was further ordered to pay the costs of the application.

That order remains extant as it was not appealed against.

Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee's monthly United States Dollar package.

In their statement of claim before the Labour Officer, the respondents averred, that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa.

They further averred, that, it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe.

They averred, further, that, the pension fund and Saver Plan were open to all employees in the E Band regardless of the nature of one's pension in Zimbabwe.

The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the Triangle Senior Staff Pension Fund (TSSPF) in the High Court.

The respondents further alleged, that, the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits.

The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents.

They therefore submitted, that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice.

They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation. They further averred that the amounts should be paid “without any additional tax losses” by them.

In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.

The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett, and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits.

The appellant further submitted, that, any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of section 94 of the Labour Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.

In his analysis of the evidence and submissions made on behalf of the parties, the Labour Officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents United States Dollar cash package in Zimbabwe with effect from 1 March 2011.

He further found, that, the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency.

He therefore concluded that the payment of compensation of accrued benefits was a right.

This was moreso given the fact that the other employees in the same grade as the respondents, who had migrated to the Triangle Money Plan, have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe.

On the question of prescription, he found, that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred.

Lastly, he found, that, when the appellant's Managing Director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company.

Consequently, he concluded, that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.

Having made the above draft ruling, the Labour Officer referred the same to the Labour Court for confirmation in terms of section 93(5)(a) of the Labour Act.

In its submissions before the Labour Court, the appellant argued that the Labour Officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett.

It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary.

Lastly, the appellant submitted that the Labour Officer had misdirected himself in not finding that some of the claims by the respondents had prescribed.

Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose. The monthly underpayments would have constituted separate causes of action. Therefore, the pensions claimed from March 2011 to September 2013 would have become prescribed.

In their submissions before the Labour Court, the respondents stated as follows:

The appellant was attacking findings of fact made by the Labour Officer. There was no allegation that such findings were irrational.

On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the Labour Officer and that, in terms of section 94(2) of the Labour Act, the claims had not prescribed.

The Labour Court agreed with the Labour Officer, but for a different reason; that the unfair labour practice was continuing and therefore the claim was not prescribed in light of section 94(2) of the Labour Act.

The court agreed with the other factual findings made by the Labour Officer but was of the view that the order directing the Managing Director and Board of Directors to effect payment was irregular as they had not been heard before the order was made.

The court accordingly confirmed the draft ruling but amended it to remove the reference to the Managing Director and Board of Directors from the order.

Unhappy with the outcome of the confirmatory proceedings, the appellant noted an appeal to this Court. It alleged that the Labour Court had erred:

(i) In determining that the respondents claim was not prescribed.

(ii) In confirming the finding by the Labour Officer that the appellant had an obligation to pay the respondents when it was apparent that the benefits claimed had arisen from an agreement to which the appellant had not been a party.

(iii) In making a finding as regards the respondents attendant tax obligations and placing an obligation on the appellant to pay any ensuing tax penalties.

(iv) In assuming review and/or appellate jurisdiction during the confirmation proceedings when the court has no such power.

In its heads of argument before this Court, the appellant has submitted as follows:

Section 94 of the Labour Act provides for a prescriptive period of two years from the date when the dispute or unfair labour practice first arose. Having submitted their claim to the arbitrator on 9 September 2015, any claims by the respondents prior to 9 September 2013 would have become prescribed as each monthly underpayment constituted a separate cause of action.

The appellant further submitted, that, the benefits were initially offered by Tongaat Hullett, its South African holding company, which subsequently terminated the benefit. Its own attempts to incorporate the benefits into the respondents contracts of employment were not accepted by them and consequently never became a contractual entitlement. The benefits could therefore be extinguished without the consent of the respondents.

It further submitted, that, not being privy to the agreement between the respondents and Tongaat Hullett, it had no obligation to pay any of the benefits, and, consequently, no unfair labour practice has been perpetrated by it.

On the order directing the appellant to pay ZIMRA tax penalties, it was its submission that this was a declarator which the court a quo had no jurisdiction to make. The court had determined a contingent right, being the contingent tax penalty which had not arisen and may not arise at all.

Lastly, it submitted that the Labour Court misconstrued its powers during confirmation proceedings. It could not, in terms of the law, rehear the matter. Nor could it amend the ruling to remove reference to the Managing Director.

The respondents pray that the appeal be dismissed with costs. They have submitted as follows:

In terms of section 94(2) of the Labour Act, prescription does not apply to a dispute or unfair labour practice which is continuing at the time it is referred to a Labour Officer. The appellant continues to discriminate against the respondents and has refused to pay them their monthly dues. The wrong was a continuous one and the respondents claim was therefore not prescribed.

The respondents have further submitted that they had no relationship with Tongaat Hullett outside of their employment contracts, which contracts entitled them to the benefits now the subject of this matter. The appellant had at all times accepted its obligation to pay the benefits.

They further argue, that, the order directing the appellant to pay tax penalties was proper and that the court a quo correctly exercised its confirmatory jurisdiction.

During oral argument, counsel for the respondents raised an objection to the submission by the appellant's counsel, that section 94(2) of the Labour Act did not arise because the matter between the parties was a dispute and not an unfair labour practice.

She submitted that this was a new point being taken on appeal for the first time.

The effect of that submission was that section 94(2) of the Labour Act would not arise because the issue before the Labour Officer was a dispute and not an unfair labour practice. At no point had the appellant taken the position that the matter between the parties was a dispute and not an unfair labour practice.

She submitted, that, in any event, regard being had to section 6(1)(e) of the Labour Act, the appellant's conduct constituted an unfair labour practice as the latter had withheld the benefits due to the respondents as punishment for having sought recourse in the High Court. This conduct, in addition to the failure to pay the benefits, falls squarely within the ambit of an unfair labour practice as defined in section 8 of the Labour Act.

Moreover, the challenge in the first ground of appeal is whether or not the unfair labour practice was continuous and not whether the conduct was an unfair labour practice in the first place.

Counsel for the appellant denied that it had changed its submission on the question of prescription, thereby taking the respondents by surprise.

He submitted, that, it was the appellant's primary position, that, there was no unfair labour practice and that even if it were so, the two year prescriptive period would still apply. The respondents cause has always been that the conduct by the appellant, of withholding compensation, was their basis for alleging an unfair labour practice. The appellant has always argued that the claims were prescribed and that no reliance could be placed on section 94(2) of the Labour Act. What the court a quo determined was the time when the dispute arose. On a proper appreciation of the common cause facts, the respondents claims for compensation were prescribed.

From the foregoing, it seems to me that four issues arise for determination by this Court:

(i) The first issue relates to the question whether the matter referred by the respondents to the Labour Officer was referred as a mere dispute or an unfair labour practice, and, concomitantly whether the claim by the respondents had become prescribed.

(ii) The second issue is whether the court a quo was correct in confirming the Labour Officer's ruling that the appellant had an obligation to pay the benefits.

(iii) The third is whether the court a quo correctly confirmed the order directing the appellant to pay additional tax losses by the respondents.

(iv) The last is whether the court a quo could, in confirmation proceedings, re-hear submissions and amend the ruling....,.

The contentious issue that arises is whether the matter referred by the respondents to the Labour Officer was so referred as a mere dispute or as an unfair labour practice, and, whether, in terms of section 94(2) of the Labour Act, the claims by the respondents were prescribed.

There is no doubt in my mind, that, although the respondents did not, at the time they approached the labour officer, specifically refer to the provisions of section 8 of the Labour Act, dealing with unfair labour practices by an employer, the gravamen of their complaint was one of an unfair labour practice and not just a dispute.

The letter referring the matter to the Principal Labour Officer, by the respondents legal practitioner, is dated 8 September 2015. It states, in no uncertain terms, that, the matter being referred was one “of breach of employment contracts and unfair practices by Triangle Limited.” It makes the allegation that the appellant had “withheld payments due to them as a way of punishing them for asserting their rights in court.” It further alleges “unlawful conduct which is not only discriminatory and breach of employment contracts but a blatant unfair labour practice which we hereby request your office's intervention in terms of the Labour Act.” It then requests the Labour Officer to proceed in terms of section 93 of the Labour Act.

It is the contents of that letter that kick-started the process of conciliation.

When conciliation failed, the Labour Officer came up with a draft ruling which was then referred to the Labour Court for confirmation.

In the draft ruling, the labour officer found, that, when the employees turned down the request for them to exit from the Triangle Senior Staff Pension Fund (TSSPF) to the Triangle Money Plan, the appellant had “proceeded to compensate all executives who are members of the Money Plan Pension Scheme in Zimbabwe and withheld compensation only to those executives who all along have been and are still members of the Triangle Senior Staff Pension Fund.”

He further found the employees “assertion of discrimination persuasive” and that the appellant “should not have precluded them from enjoying the incorporation of compensation into the cash package or their salaries on the basis of their refusal to exit from the Triangle Senior Staff Pension Scheme as prescribed by the respondent.”

The labour officer concluded, that, by withholding compensation, “the appellant, its Managing Director and Board of Directors” were guilty of an unfair labour practice.

In his founding affidavit to the application for confirmation, the labour officer states that he “presided over the matter on 25 September 2015 on the alleged breach of contract of employment and unfair labour practice.”

Although the labour officer, on occasions, used the terms 'matter; dispute' it is clear he used these interchangeably with the term unfair labour practice.

At no stage did the labour officer entertain the idea that what he was dealing with was a mere dispute as opposed to an unfair labour practice. It was for that reason that the labour officer went on to consider “whether the matter…, between the contending parties were (sic) of a continuous nature” - a clear reference to section 94(2) of the Labour Act.

The appellant itself accepted that the issue before the labour officer involved an investigation into whether or not it (the appellant) had committed an unfair labour practice.

In its written response to the complaint raised before the labour officer, it submitted that the respondents were only entitled to those claims which had arisen within two years of the date of the submission of the matter to the labour officer. It even accepted, that, were it to be found that it had committed an unfair labour practice resulting in underpayment every month, then such monthly underpayments would constitute separate causes of action.

It submitted, that, the respondents could not rely on subsection (2) of section 94 of the Labour Act and argue that the unfair labour practice (if such was one) was still continuing.

In other words, the appellant accepted that should the labour officer find that there was an unfair labour practice, he should further find that each such monthly underpayment constituted a separate cause of action in respect of which the two-year prescriptive period provided in sub-section (2) of section 94 of the Labour Act would apply.

At no stage did the appellant argue that the matter before the labour officer was not an unfair labour practice but rather a mere dispute – a point belatedly raised during oral argument.

In all the circumstances therefore I hold that the issue before the labour officer was whether the appellant had committed an unfair labour practice by deliberately withholding monthly payments of benefits and whether the individual monthly claims were in any way affected by the two-year prescriptive period.

Having found that the issue before the labour officer was whether the appellant had committed an unfair labour practice, the issue that consequently arises before this Court is whether the monthly benefits, or any of them, had become prescribed.

As already noted, the appellant's position was that the respondents cause of action would arise every month, and that, in terms of section 94 of the Labour Act, such cause of action would become prescribed after a period of two years from the date when it arose. Accordingly, the respondents were only entitled to succeed on those claims that had arisen within the period of two years before the lodgement of their complaint.

The appellant, in its heads of argument before this Court, argued that the respondents cannot rely on subsection (2) of section 94 because the section “clearly states as to when such a prescriptive period must be reckoned from.”

However, the appellant, as is clear from its heads, made no effort to interpret what sub-section (2) of the section means.

That subsection states, in short, that, prescription shall not apply to an unfair labour practice which is continuing at the time it is referred to a labour officer.

The question before the court a quo, and this Court, is the interpretation to be accorded to the phrase “which is continuing at the time it is referred.”

Whilst the principle of a continuous unfair labour practice has not been fully developed in our jurisdiction, the South African Labour Appeals Court has had occasion to consider the interpretation to be accorded to a similar phrase in their labour legislation. A case in point is that of SABC Ltd v CCMA & Ors 2010 (3) BLLR 251 (LAC). At paragraph 27 of the judgment, the court remarked as follows:

“…,. The problem, however, is that the argument presented by the appellant is premised upon the belief that the unfair practice or unfair discrimination consisted of a single act. There is, however, no basis to justify such belief.

While an unfair labour practice or unfair discrimination may consist of a single act, it may also be continuous, continuing or repetitive.

For example, where an employer selects an employee, on the basis of race, to be awarded a once-off bonus, this could possibly constitute a single act of unfair labour practice or unfair discrimination, because, like a dismissal, the unfair labour practice commences and ends at a given time. But, where an employer decides to pay its employees who are similarly qualified, with similar experience, performing similar duties, different wages, based on race or any other arbitrary grounds, then, notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive.

The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other, he is evincing continued discrimination.”

I agree with the above remarks.

Where, as in this case, the monthly benefits are withheld, the unfair labour practice is continual and repetitive. It will only terminate when such discriminatory conduct ceases and all the employees are treated the same.

Section 94(2) of the Labour Act makes it clear, that, in such a case, the prescriptive period of two years does not apply. In other words, even in a situation where the amounts claimed cover a period of, say, three years, the prescriptive period of two years would not apply as the unfair labour practice would be of a continuous nature.

In the present case, it is not in dispute that the monthly benefits to which the respondents were entitled were being withheld. The practice was continuing. In terms of section 94(2) of the Labour Act, the claims, even those that arose beyond the period of two (2) years, were not prescribed.

This is an appeal against confirmatory proceedings conducted by the Labour Court on 8 September 2017 in terms of section 93(5) of the Labour Act. At the end of the proceedings, the Labour Court made a number of alterations to the draft ruling issued by the Labour Officer.

The Labour Court has the power to confirm a draft ruling with or without amendment.

The issue for determination before this Court is the extent to which the Labour Court can, in confirmation proceedings of the draft ruling of a labour officer, amend such a ruling.

The 2nd – 301st respondents were employed by Air Zimbabwe (Private) Limited (“the appellant”) in various capacities at diverse occasions. Following the decision of this Court in Nyamande & Anor v Zuva Petroleum (Pvt) Ltd 2015 (2) ZLR 186 (S), on 17 July 2015, the appellant terminated the employment contracts of the respondents on three months notice. The notices of termination were issued on 31 July 2015 and all made it clear that the termination was pursuant to the appellant's common law right to terminate employment on notice.

Aggrieved by the termination of their employment, the respondents collectively lodged a complaint of unfair dismissal with the Labour Officer. They contended, that, the termination of their employment contracts had been carried out contrary to the provisions of section 12(4) of the Labour Act [Chapter 28:01].

The appellant opposed the claims on three bases:

(i) First, that some of the respondents cited in the proceedings were not party to the proceedings as they had been re-engaged and one of them was deceased.

(ii) Second, that the amendment to the Labour Act that sought to impose retrospective application of section 12(4)(b) of the Labour Act was unconstitutional.

(iii) Lastly, that “if the tribunal was inclined to retrospectively apply the section, then, the matter must be referred to the Constitutional Court.”

In her draft ruling, the labour officer (the first respondent in this matter) found, that, the respondents had been unfairly dismissed and that the termination was therefore null and void.

In addition, she ordered the appellant to comply with section 12(C)(2) of the Labour Act and that her ruling be implemented within thirty (30) days of receipt of the order.

Pursuant to that draft ruling, the labour officer filed an application with the Labour Court for the confirmation of that ruling.

The appellant opposed the application before the Labour Court on several grounds:

(i) First, that the labour officer had erred in failing to refer the matter to the Constitutional Court.

(ii) Second, that the ruling related, in part, to employees who were not party to the proceedings.

(iii) Third, that the labour officer had granted a declarator in spite of the fact that she had no power to do so.

(iv) Lastly, that, the order that the appellant complies with section 12(C)(2) of the Labour Act was improper because that section was not applicable to the matter before her.

In its determination, the Labour Court held, that, the first part of the operative portion of the draft ruling was a declarator in respect of which the labour officer and the Labour Court itself had no jurisdiction to grant....,.

The operative part of the draft ruling was couched as follows:

“1. The termination on notice is hereby declared null and void.

2. The respondent to comply with section 12c(2) of the Act.”...,.

The Labour Court would have been aware of various decisions of this Court that have held, that, the Labour Court itself and the tribunals below it have no jurisdiction to grant a declaratur - in this regard see UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S)…, where this Court remarked as follows:

“…, nowhere in the Act is the power granted to the Labour Court to grant an order of the nature (declaratory order) sought by the respondents in the court a quo, nor have I been referred to any enactment. So, too, in this case, there is no provision in the Act (nor have I been referred to any provision in any other enactment) authorizing the Labour Court to issue the declaratory order sought by the respondent. It is therefore my view, that, the Labour Court ought to have dismissed the application for want of jurisdiction authorizing the Labour Court to grant such an order.”

The above remarks, on the lack of jurisdiction to issue declaratory orders by the Labour Court, would, of necessity, apply to a labour officer. Such officer has no jurisdiction to issue a declaratur - which relief is specifically bestowed on the High Court by statute....,.

The court also determined, that, although the labour officer had not dealt with the request for the referral of the matter to the Constitutional Court, it was clear that such a referral could only be made by a court and not a labour tribunal.

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:

“IT IS ORDERED THAT:

1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.

2. The 1st respondent be and is hereby ordered to entertain the applicant's appeal lodged on 12 February 2015 within twenty one (21) days of this order being granted.

3. The respondents to pay costs of suit jointly and severally, the one paying the other to be absolved.”

On or about December 2014, the applicant was charged with contravening section 3(46) of the Prisons (Staff) (Discipline) Regulations 1984. It was alleged, that, at Mutare Farm senior officers Mess, the applicant, being a member of the service, did wrongfully and unlawfully utter despicable words against the first lady, Dr Grace Mugabe, saying “Ma problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr Grace Mugabe asi isu musangano tinouda.”

This was against the discipline - especially of a commissioned officer.

The disciplinary hearing was conducted in January 2015 in terms of section 10(1) and (11) of the Prisons (Staff) (Discipline) Regulations 1984.

The applicant was found guilty and discharged from service.

He filed an application for review to the Commissioner in terms of section 22(1) of the Prisons (Staff) (Discipline) Regulations 1984. The Commissioner confirmed the Board's decision and dismissed the application for review.

The applicant did not rest, he appealed to the Public Service Commission in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984.

The Public Service Commission refused to entertain the appeal citing lack of jurisdiction and the relevant portion of the letter of 17 March 2015, addressed to the applicant's legal practitioners, reads as follows:

“It has been noted that you were engaged as a Commissioned officer at the rank of Superintendent in the Zimbabwe Prisons and Correctional Services. In terms of section 9(1)(e) of the Prisons Act (Chapter 7:11) the President may reprimand, suspend, reduce rank or discharge any Commissioned officer. The Prisons and Correctional Service does not have the jurisdiction to preside over cases involving Commissioned officers.

This rests your case with us. Please be guided accordingly.”

The applicant genuinely believes that the Public Service Commission has the jurisdiction to entertain the appeal made in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984. However, up to now, the first respondent has failed to hear the appeal hence this application.

The application is opposed.

In the opposing papers, the first respondent raises a preliminary point premised upon the citation of the first respondent.

According to the respondents, the first respondent does not, and has no jurisdiction to determine the applicant's appeal in her capacity as Secretary of the Public Service Commission.

The Public Service Commission, she argues, is a separate legal entity to the Prisons and Correctional Services Commission. The Secretary, Public Service Commission acts as the Secretary to the Prisons and Correctional Services is incorrectly cited as she does not represent the Commission, the applicant ought to have cited the Chairperson to the Prisons and Correctional Services Commission.

Further, the first respondent does not deal with appeals in her official capacity, and, as such, she is incorrectly cited....,.

Counsel for the first respondent submitted, that, the improper citation of a party renders the application void.

Counsel for the first respondent cited the matter of Matida v Chairman, PSC and Anor 1998 (1) ZLR 507 (H): ADAM J…, had this to say relating to the citation:

“Now, that court application, firstly, cites the Chairman of the Public Service Commission as the first respondent. Yet, the annexure to the founding affidavit gives the Public Service Commission as the decision maker. The wrong party has been cited. Rule 256 surely is concerned with the decision or proceedings of the legal persona, be that an inferior court, tribunal, board or officer. This means it is that legal persona whose decision or proceeding has to be reviewed that must be cited and the application must be directed and delivered, in the case of the tribunal or board, to the Chairman of that body: see in this regard Maxwebo v Chairman, Public Service Commission HH125-97 at p6-7 where SMITH J said:

'Before concluding, I wish to make an observation on the party cited as respondent. The Chairman of the Public Service Commission was so cited. Although exception was not taken there, I considered that it was improper to cite him as respondent. Section 74 of the Constitution establishes the Public Service Commission which consists of the Chairman and not less than two and not more than seven other members.

Any findings, rulings or decisions of the Public Service Commission are those of the body and not of the Chairman.

Accordingly, the Chairman of the Public Service Commission cannot do anything in the name of the Commission if the majority of members do not agree with him.

The distinction is illustrated by the order sought by the applicant.

The draft order states that the respondent's decision to find the applicant guilty of misconduct should be set aside. However, the findings of guilty was not a decision of the respondent. It was a decision of the Public Service Commission.

I therefore consider that it was improper to cite the Chairman as respondent. The Public Service Commission should have been cited as the respondent.'”

In the case of City Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA.., ruled as follows:

“At the hearing of this matter, it appeared to this court, that, the respondent, simply cited as 'Workers Committee' was not a legal persona capable of being sued. Accordingly, both counsel were asked to address the court on the matter. Both counsel accepted, that, the respondent, which is a Workers Committee appointed by workers of the appellant company, is not a legal persona and cannot therefore be sued.”

The applicant improperly cited the Secretary as the first respondent instead of citing the Public Service Commission. That was a fundamental error and the preliminary point finds favour with this court, and, accordingly, the point in limine is upheld and the application is dismissed with costs.

It is so ordered.

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.

Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.

The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.

The application for joinder was set down together with the appeal hearing.

At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.

The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.

A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.

Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.

On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.

In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.

She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.

This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.

It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.

However, at paragraphs [12] and [13] this Court, en passant, remarked that:

“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”

These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:

“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”

The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.

The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.

Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.

The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.

It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.

It was opposed by the first respondent on 20 April 2021.

The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021....,.

A court considers the extent of the delay, reasonableness of the explanation for the delay, prospects of success and importance of the case, respondent's interest in the finality of his judgment, convenience of the court, and avoidance of unnecessary delay in the administration of justice.

However, it is trite that the main requirements for an application of this nature are the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success: see Ester Mzite v Damafalls Investments (Private) Limited SC21-18.

The Labour Court refused to confirm the proceedings on 19 March 2017. Leave to appeal was granted by that court on 9 July 2017. The appeal should have been filed by 15 August 2017.

The present application was filed on 20 April 2021.

It is common cause that this period, which is in excess of three (3) years and eight months, is inordinate.

The real reason for the delay was that the applicants were prevailed upon by this Court to withdraw the appeal on 22 February 2018. The applicants withdrew the appeal because they accepted the misconception that confirmation proceedings that they sought to impugn were a nullity by reason of lack of jurisdiction by the Labour Court to confirm a draft ruling made against an employee by a labour officer.

That view was subsequently affirmed by this Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 at paragraphs [12] and [13].

It was, however, authoritatively jettisoned by the Constitutional Court in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 at p25.

The applicants have always been desirous to test the correctness of the judgment appealed against but for the mis-interpretation of the relevant provision of the Labour Act by this Court.

This is demonstrated by their desperate attempt, in March 2018, to appeal the confirmation in the Labour Court under the mistaken belief that it had reverted to being the decision of the labour officer.

I would have accepted the explanation on the misconstruction of the jurisdiction of the Labour Court by this Court to have been a reasonable explanation for the delay had the applicants filed the present application soon after the reasons for judgment were availed in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, in June 2020.

The applicants, however, justified their failure to file the application soon after the Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 judgment on the COVID 19 induced lockdowns.

The endemic lockdowns resulted in the closure of court operations between 30 March 2020 and 11 May 2020 and 5 January 2021 to 1 March 2021. During this period, only urgent matters were set down, heard, and determined.

The courts were, however, in full session between 11 May 2020 and 4 January 2021 and between 1 March 2021 and the date on which the applicants filed the present application on 12 April 2021.

There was no legal impediment against the filing of the application immediately the reasons for judgment were delivered in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.

The applicants did not proffer any reasonable explanation as to why they failed to lodge the present application during these periods.

My overall finding is, therefore, that the explanation given for the delay was unreasonable.

I agree with counsel for the first respondent, that, the applicants failed to provide a reasonable explanation for the inordinate delay.

The three main factors are not individually decisive in granting the indulgence sought by the applicants.

The remarks of SANDURA JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) are worth repeating. He stated that:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

In the present case, strong prospects of appeal may be the determinant factor.

It is common cause, that, the parties did not produce the consensual agreement to the labour officer. The first respondent failed to locate it, and, suggested that it must have been illegally removed from its custody by its former Finance and Human Resources Director, Owen Murumbi, on the subsequent termination of his employment.

The first appellant maintained such an agreement did not exist.

The labour officer, and the court a quo, made positive findings that the agreement was in existence and that the parties and their witnesses had appended their signatures on the agreement.

Counsel for the applicants argued, that, such a positive finding by both the labour officer and the court a quo, in the absence of the agreement, was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided, would have arrived at it.

He, therefore submitted, that, such a finding constitutes a misdirection which allows this Court to interfere with it.

His contention is based on the authority, amongst others, of TM Supermarket v Mangwiro 2004 (1) ZLR 186 (S); Reserve Bank v Granger & Anor SC34-01; and Zvokusekwa v Bikita Rural District Council SC44-15…,.

Counsel for the applicants further contended, that, the failure to apply the peremptory retrenchment procedures set out in section 12C(11)(a)(i) and (ii) and (b)(i) and (ii) of the Labour Act [Chapter 28:01] before its amendment by the Labour Amendment Act No.5 of 2015 rendered the retrenchment a nullity.

Counsel for the applicants also contended, that, contrary to the finding a quo, the acceptance of their terminal benefits could not properly constitute a waiver of their right to challenge the termination process.

The contention was premised on two grounds:

(i) The first was that the termination was a nullity and could therefore not be waived.

(ii) The second was that at the time they accepted the terminal benefits, they were ignorant of its effect on their right to challenge the termination. They therefore argued that they lacked the requisite appreciation and concomitant intention to found waiver.

Counsel for the applicants submitted, that, the principle of waiver, articulated in Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S)…, was no longer good law. This was because that decision predated the concept of social justice and equity embodied in section 2A of the Labour Act.

This concept was recognized in Stanbic Bank of Zimbabwe Ltd v Charamba 2006 (1) ZLR 96 (S); Madhatter Mining Company v Tapfuma SC51-14…,.; and Delta Beverages (Pvt) Ltd v Murandu SC38-15…,.

Per contra, counsel for the first respondent contended, that, the acceptance and consumption of the terminal packages constituted a waiver of their right to challenge the legality of their respective terminations.

The Constitutional Court authoritatively laid down, inter alia, that the Labour Court's jurisdiction to confirm a labour officer's draft ruling, in respect of a dispute or unfair labour practice, which is a dispute of right, could only be invoked if the labour officer strictly complied with all the prescribed procedural steps and substantive requirements of sections 93(1)(3) and 95(5)(c) of the Labour Act in making the draft ruling.

This principle was derived from the ratio decidendi of Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S), which was that the action or application commencing proceedings must be in accordance with the procedure prescribed by law to bring the dispute before the appropriate court for it to exercise jurisdiction to hear and determine the matter.

At p27 MALABA CJ pertinently held that:

“This means that a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of section 93(5a) of the Act. It would not be a matter which would be subject of the procedure for bringing such matters to the court a quo, as prescribed under section 93(5a) of the Act. Bringing such a matter to the court a quo under the guise of invoking the procedure prescribed in the subsection would not validly institute proceedings in that court in terms of section 93(5a) of the Act. The court a quo would not have a valid matter over which to exercise jurisdiction.”

The jurisdiction of a labour officer to deal with a dispute or unfair labour practice, whether in respect of a dispute of interest or a dispute of right is anchored in section 93(1) of the Labour Act.

The dispute or unfair labour practice must have been properly referred to the labour officer.

The propriety is based on four jurisdictional factors identified as the existence of a dispute, emanating from an employment relationship, outside the aegis of an employment code (per section 105(5) and (6) of the Labour Act) and the jurisdiction of an employment council (that is before a Designated Agent in terms of section 63(3b) of the Labour Act) and timeous referral.

The Constitutional Court further held, that, conciliation is a compulsory statutory process of mediation that is separate and distinct from arbitration and adjudication.

At p23, the Constitutional Court poignantly stated that:

“Procedures such as the hearing of oral submissions or the production of written submissions by the parties, and the determination of matters in dispute, typical of the adjudication process, are alien to the conciliation process. During the conciliation process, the labour officer collects information and attempts to settle the dispute between the parties in a friendly manner. It is neither a trial nor a hearing.”

Conciliation therefore constitutes the first consensus-seeking step that is actively, and not passively, presided over by the labour officer but is driven by the disputants.

The proper way of conducting conciliation, which was approved by the Constitutional Court, generally involves the four stage approach that consists of;

(i) The introduction;
(ii) Story-telling;
(iii) Dispute analysis; and
(iv) Problem solving.

These stages were borrowed from the South African labour case of National Union of Metalworkers in SA & Ors v Cementation Africa Contracts (Pty) Ltd (1998) 19 ILJ 1208 (LC)…, (the NUMSA case) and the suggestions of various academic writers in the field such as GROGAN: Labour Litigation and Dispute Resolution 1st ed Juta…,.; BRAND et al Dispute Resolution 5ed Juta…,.; and DARCY du TOIT et al Labour Relations Law a Comprehensive Guide 6ed Lexis Nexis…,.

If the properly conducted conciliation fails to achieve a settlement within thirty (30) days, or any further extension agreed to by the parties, from the commencement of the attempt at settlement, the labour officer issues a Certificate of No Settlement.

The legal effect of such a certificate is that the dispute or unfair labour practice arising from a dispute of right, by operation of law, automatically and specifically proceeds to adjudication before the Labour Court in terms of section 93(3) as read with section 93(5) of the Labour Act and not to compulsory or voluntary arbitration.

Such an application is a sui generis application that is within the contemplation of section 89(1) of the Labour Act.

It is only those disputes that involve disputes of interest for parties engaged in an essential service that take the arbitral route.

At pp22 and 24 of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, it was held that the draft ruling is the exclusive domain of the labour officer that is prepared after issuing a Certificate of No Settlement.

It is based on the information collected and collated by the labour officer during the process of conciliation.

In either case, the draft ruling must then as “a matter of obligation” be subject to the provisions of subsections (5a) and (5b). The draft ruling invokes the application of sub-sections (5a) and (5b) of section 93 of the Labour Act.

It is a provisional ruling that bears no legal force nor is it capable of review or appeal by the parties to whom it relates.

It only derives its life force if it is confirmed by the Labour Court in the automatic application that is lodged by the labour officer to that court.

It was emphatically held, at p11, of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 that “if a labour officer engages in anything that is not conciliation, it is a nullity.”

Confirmation was adjudged to be a hearing in which the Labour Court examines the correctness of the facts and the law relied upon by the labour officer. The end result being, that, the Labour Court may confirm, set aside or substitute the draft ruling.

It is required to make a correct determination based on its own facts and law.

My understanding of the exposition rendered on the nature of confirmation proceedings is that they constitute a re-hearing in the wider sense in which the Labour Court is not bound by the factual findings and legal expositions of the labour officer.

This is an appeal against the judgment of the Labour Court (the court a quo) handed down on 21 October 2016 which allowed an appeal by the respondent against an arbitral award issued by an arbitrator on 13 October 2015.

The court a quo set aside the arbitral award and remitted the matter to an arbitrator of the parties choice, or one selected by the Registrar, for a hearing to determine the appropriate penalty to be imposed on the appellant.

The case itself has a chequered history, being a labour dispute that has gone backwards and forwards as the parties bickered over either the procedure adopted or the choice of arbiter.

The appellant was employed by the respondent as its Managing Director. He was suspended from employment in April 2010 on allegations of gross incompetence and gross inefficiency under section 4(f) and (h) of the National Employment Code of Conduct, S.I.15 of 2006 (the National Code of Conduct).

Five counts of misconduct were preferred against the appellant:

(i) Firstly, it was alleged that he had submitted a report to the Board of Directors of a net loss of US$56,930 for the year ending on 31 December 2009 when the real net loss, as uncovered by external auditors, was US$657,365.

(ii) Secondly, it was alleged that the appellant failed to fully account for R700,000 which had been transferred from Mavambo Coaches.

(iii) Thirdly, it was alleged that the appellant paid himself a US$2,000 long service award in January 2010 without Management and Board approval.

(iv) Fourthly, he was accused of authorising staff loans amounting to US$23,549 in December 2009 and January 2010, when the company was in financial dire straits.

(v) Fifthly, the appellant was accused of paying management incentives amounting to US$21,800 in December 2009, against a loss which militated against payment of incentives.

An internal disciplinary hearing was conducted which found the appellant guilty and recommended his dismissal from employment.

The appellant challenged the propriety of those proceedings through a review application brought before the court a quo.

That contested review application yielded a consent order granted by the court a quo on 28 October 2010 in the following terms:

“IT IS HEREBY ORDERED THAT:

1. The disciplinary hearing held against the applicant be and is hereby set aside to allow a de novo hearing and the suspension letter dated 13 April 2010 remains in force.

2. The arbitration proceedings before Arbitrator M. Dangwa be and is (sic) hereby withdrawn.

3. A fresh disciplinary hearing shall be held before Mr J. T. Mawire as the hearing officer and the parties shall share the costs of the hearing officer equally.

4. The issue of whether the applicant should be paid between the period of April to October 2010 is reserved for ruling by the court after receiving submissions from the parties legal practitioners before close of business on 29 October 2010.”

I note in passing that J. T. Mawire was appointed as a “hearing officer” by consent of the parties.

The earlier disciplinary proceedings were abandoned in favour of a hearing de novo before a different hearing officer, J. T. Mawire, who was appointed “to hear and determine the matter in terms of the Code.”

Indeed, hearing officer Mawire heard the matter, took evidence from both parties, and received written closing submissions.

In his determination dated 22 February 2012, Mawire found the appellant not guilty of misconduct. He ordered that he be reinstated without loss of salary and benefits from the date of suspension.

The respondent was aggrieved.

Initially, it made frantic efforts to appeal internally against the determination by the hearing officer. Again, the parties bickered for some time on the choice of an Appeals Authority.

Problems started when, at the instance of the appellant as claimant “an independent arbitrator” Munyaradzi Dangarembizi issued an arbitral award on 13 November 2012 to wit:

“AWARD

Wherefore, after carefully analysing the facts and the law, I make the following award -

That the claimant's prayer is upheld and I hereby order that the merits of the matter be conciliated upon by the Labour Officer.”

Following that award, it is common cause that a Labour Officer unsuccessfully held conciliation proceedings as a result of which the matter was referred to compulsory arbitration before an arbitrator.

When the respondent took its grievance to the arbitrator it stated categorically, at paragraph 2.8 of the Claimant's statement of claim and submissions:

“2.8. Hence, the matter in casu is an appeal by the employer, the claimant herein against the determination of Mr Mawire, the Disciplinary Authority dated 22nd February 2012.”

It is also beyond disputation that the arbitrator also dealt with the matter as an appeal.

He said so at paragraph 5 of the arbitral award dated 8 October 2015, to wit:

“Therefore, the instant matter is an appeal by the claimant against the determination of Mr Mawire, the disciplinary authority, dated 22 February 2012.”

The arbitrator upheld the determination of the hearing officer.

He ordered the reinstatement of the appellant to his position with no loss of salary and benefits from the date of dismissal. In the event that reinstatement was no longer possible, the appellant was to be paid damages in lieu of reinstatement.

The respondent was again unhappy with the arbitral award. It lodged an appeal to the court a quo on three grounds:

(i) The first was that the arbitrator grossly erred and misdirected himself on a point of law by failing to make a finding that the employee was grossly incompetent.

(ii) The second was that the arbitrator erred and misdirected himself at law by relying on an affidavit without according the respondent the opportunity to cross examine its deponent and to adduce oral evidence.

(iii) The third ground was that the arbitrator grossly erred and misdirected himself at law by handing down a grossly irrational and unreasonable award.

The court a quo found that the appellant had a responsibility to account to the Board on the operations of the business. He could not simply rely on his subordinates regarding the financial figures of the company as the buck stopped with him because he was the Managing Director.

The court a quo found, that, before presenting the financial figures to the Board, it was incumbent upon the appellant to verify the correctness of the figures. In its view, this was a case of res ipsa loquitar wherein the failure of the appellant to verify the figures was proof of incompetence.

The court a quo further found, that, the arbitrator's finding that the appellant was not responsible for the presentation of the faulty accounts to the Board flew in the face of available evidence. It was a gross misdirection entitling the court to interfere and set aside the award.

It set aside the award and remitted the matter for the assessment of an appropriate penalty.

It became the appellant's turn to be aggrieved.

He appealed to this Court on five (5) grounds of appeal most of which attacked the factual findings of the court a quo instead of the law as required by section 92F(1) of the Labour Act [Chapter 28:01].

In terms of that section, an appeal lies from any decision of the Labour Court to this Court on a question of law only.

As that issue was not canvassed with the parties at the hearing of the appeal, it shall not be used as a basis for resolution of the appeal.

At the commencement of the hearing, counsel for the appellant took a point of law that the entire proceedings before the Labour Officer who conciliated the matter, the arbitrator who heard what was in fact an appeal from a decision of the hearing officer, and the subsequent appeal before the court a quo were a nullity.

Counsel for the appellant entreated this Court to strike off the appeal from the roll and to invoke its power, in terms of section 25 of the Supreme Court Act [Chapter 7:13], to set aside those proceedings.

In advancing that argument, on nullity of the proceedings, counsel for the appellant relied on the authority of two judgments of this Court in Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19 and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

In those cases, this Court pronounced that proceedings referred to the court a quo, having been adjudicated upon by a Labour Officer without authority to do so, were a nullity.

In response, counsel for the respondent took a different view, namely, that, the authorities in question were distinguishable from the present case.

In his view, those authorities applied to situations where an employer would have made a determination in terms of a Code of Conduct thereby ousting the jurisdiction of the Labour Officer.

Counsel for the respondent submitted further, that, in the present case, the employer did not decide the matter at all.

According to counsel, what was placed before the Labour Officer was not an appeal but a referral to the Labour Officer in terms of section 93 of the Labour Act.

He submitted that section 93 of the Labour Act conferred what he called “a special jurisdiction” to the Labour Officer.

Counsel for the respondent submitted, that, the law which was applicable at the time the dispute arose made it legally competent for disputes to be referred to Labour Officers as happened in this case.

I must mention, that, after hearing submissions from counsel on that preliminary point, this Court directed the parties to file written submissions on the point of law.

The appellant was directed to do so by 24 January 2022 while the respondent was directed to file a response by 27 January 2022.

The parties managed to file their submissions timeously which is commendable indeed.

In his written submissions, counsel for the appellant surprisingly moved for an order that the appeal should succeed with costs and that the decision of both the Labour Court and the arbitrator be set aside in terms of section 25 of the Supreme Court Act on the basis that both are a nullity.

No ground of appeal attacked the proceedings a quo on the basis of a nullity.

The appeal cannot succeed on non-existent grounds.

On the other hand, in his written submissions, counsel for the respondent submitted that the appellant did not point to any prejudice suffered as a result of the manner in which the proceedings were conducted.

On the authorities pointing to the lack of jurisdiction by a labour officer to deal with a referral under section 8 of the National Employment Code of Conduct, SI15 of 2006 (National Employment Code), counsel submitted that those cases do not have retrospective effect. They are not applicable to cases that were referred to labour officers prior to their pronouncement.

Counsel also sought to distinguish this case by virtue of the arbitral award issued by Munyaradzi Dangarembizi which referred the dispute to a labour officer.

As shall be demonstrated below, this proposition is faulty.

I also mention, for completeness, that, the court proceeded to hear arguments on the merits. That was done on the understanding, that, in the event that the point of law raised by counsel for the appellant found favour with the court, it would not be necessary for the court to determine the merits.

The point of law relating to the validity of the proceedings is dispositive of the matter if upheld. The court would only relate to the merits if the proceedings were valid.

The position taken in this judgment makes it unnecessary to consider the merits.

The question of when a Labour Officer may exercise jurisdiction over a dispute is one that has been with us for a long time, mainly because of the problematic wording of the relevant provisions of the Labour Act.

In Watyoka v Zupco (Northen Division) SC87-05, the employee was charged with misconduct and dismissed from employment before he referred the matter to a Labour Relations Officer who ordered his reinstatement - a decision later upheld by a senior Labour Relations Officer.

In that case, this Court considered the provisions of section 101(5) and (6) of the then Labour Relations Act [Chapter 28:01] which read:

“(5) Notwithstanding this part, but subject to subsection (6), no labour relations officer or senior labour relations officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under a code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3) the employee or employer concerned may refer such matter to a labour relations officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

The court reasoned that three important conditions upon which a matter can be referred to a labour relations officer emanated from that provision. These were:

(i) That, the matter must not be one that is or is liable to be the subject of proceedings under a Code of Conduct;

(ii) The matter has not been determined within thirty days of notification; and

(iii) Where the parties to the dispute request it and agree on the issue in dispute.

It went on to pronounce, at p5 of the judgment:

“Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

A more recent case dealing with the same issue is Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19.

Again, in that case, following an internal disciplinary hearing, the employee was dismissed for misconduct. His internal appeal was also dismissed. Thereafter, the matter was referred to a Labour Officer for conciliation, which failed, resulting in the Labour Officer referring the matter to compulsory arbitration.

The arbitrator found in favour of the employee, but, the employer appealed to the Labour Court which found in favour of the employer.

On appeal to this Court, the court considered that the matter had proceeded to compulsory arbitration through reference to the Labour Officer in terms of section 8(6) of the National Employment Code of Conduct, S.I.15 of 2006 (National Code of Conduct). The relevant provisions of that National Code of Conduct read:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an employment Council Agent, as the case may be, within seven working days of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

GOWORA JA…, took the view that regardless of how the case was disguised, it was in fact an appeal against the dismissal of the appeal by the Appeals Authority.

In considering whether the arbitrator had jurisdiction to act as an appeal tribunal, the learned appeal judge concluded, that, the arbitrator did not have such jurisdiction. She remarked at p12 of the judgment:

“In my view, the principle emerging from all the authorities referred to above can be summarised by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct. It is clear that in this case the labour officer presided over a matter over which he did not have any jurisdiction. As stated in Watyoka's case (supra), once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Act.

In this context, the implications of what the arbitrator did are obvious.”

Later in that judgment the court stated, at p14:

“I conclude, therefore, that the labour officer did not have jurisdiction to hear a complaint from the appellant of whatever nature and that the referral to compulsory arbitration was unlawful and the proceedings before the arbitrator were, as a result, an irregularity.”

See also Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Mugavha SC62-19.

The reasoning in Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19 rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Labour Act where a matter is referred to him or her in terms of section 8(6) of the National Employment Code of Conduct, SI15 of 2006 (National Code of Conduct).

It concluded, that, under section 93(1) of the Labour Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the work place.

In fact, in Living Waters Theological Seminary v Rev Chikwanha SC59-21, the court went further to state that the provisions of section 8(6) of the National Employment Code of Conduct, S.I. 15 of 2006 (National Employment Code) are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act [Chapter 28:01].

In this case, internal disciplinary proceedings were conducted before a hearing officer, J. T. Mawire, who rendered a determination. The determination was never set aside on appeal, which the employer had commenced, before another arbitrator erroneously referred the matter to a Labour Officer for conciliation.

To the extent that there was an internal disciplinary process which had yielded a determination, by the authorities I have referred to above, the Labour Officer did not have jurisdiction to conciliate the matter.

The matter had to proceed by way of an appeal, firstly, to an internal appeal authority, and, later, to the Labour Court.

I do not agree with counsel for the respondent that Mawire was clothed with special jurisdiction to determine the matter in any manner outside the provisions of the National Code of Conduct.

The law, as it existed at the time the parties reached a deadlock on the appeals authority to hear the appeal, did not allow for a referral to a Labour Officer in the way arbitrator Dangarembizi sought to do on 13 November 2012.

The recent authorities cited above only underscored a legal truism that has always existed. The issue of their retrospective application does not arise at all.

It follows that the proceedings before the Labour Officer who referred the dispute to arbitration were irregular, the Labour Officer not having had jurisdiction. By the same token, the arbitration yielded by an irregular conciliation, and, indeed, the appeal to the Labour Court that followed, were also irregular.

Nothing lawful could result from an invalidity.

It follows that this appeal could not have been properly before this Court.

An invalidity occurred which has come to the attention of this Court. This Court has review power reposed upon it by section 25(1) of the Supreme Court Act. The logical thing to do is to invoke that provision to set aside the invalid proceedings.

Regarding the issue of costs, the jurisprudence which has come out of this Court, on the invalidity of proceedings brought before a Labour Officer, in the way the present matter was done, has been available for quite some time. Counsel in this matter should have known of it. They did not do anything about the fate of this appeal right up to the date of hearing.

Accordingly, the view that I take is that neither of the parties is entitled to costs for that reason.

In the result, it is ordered as follows:

1. The matter is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Labour Officer, the arbitrator, and the Labour Court are hereby set aside.

The Appeals Board considered the fact that the case had been appealed to the NEC out of time.

The excuse given by the Bank was that the case had erroneously been sent to another Grievance and Disciplinary Committee. However, the Appeals Board did not feel that a mistake like that was a valid excuse for submitting a late appeal. The Bank has vast experience in dealing with disciplinary issues, and the procedure is very clear in the Code of Conduct.

In addition, there is no provision in the Code which empowers the Appeals Board to condone the late noting of an appeal to it.

Consequently, the Appeals Board correctly declined to condone the bank's failure to note its appeal timeously.

This is an appeal against a judgment of the Labour Court dismissing the first appellant's, a labour officer, application for confirmation.

The ruling was in favour of the second appellant, a former employee of the respondent, who was dismissed from employment sometime in March 2016 on allegations of certain acts of misconduct, including theft and/or fraud.

At the hearing of the appeal, we allowed the appeal and issued an order in the following terms:

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with no order as to costs.

2. The proceedings before the Labour Officer and the Labour Court be and are hereby set aside.

2.1 The matter is remitted to the Labour Court to be heard as an appeal against the decision of the Designated Appeals Officer in terms of section 92(1) of the Labour Act.

3. The second appellant herein shall file his Notice of Appeal to the Labour Court within 15 days from the date of this order.

3.1 Thereafter, the matter shall proceed in terms of the Labour Court Rules.

We indicated that reasons for judgment would follow. These are they.

The second appellant was employed by the respondent as an Administration Clerk in charge of cash sales. He was in the respondent's employ for a period running from May 1998 until March 2016 when he was dismissed from employment following allegations of misconduct.

The background relating to the dismissal is the following:

On 29 February 2016, the second appellant was issued with a charge letter detailing the grounds upon which the misconduct charges were premised. He was charged with theft or fraud in breach of section 4(d) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15/2006), also commonly known as the Model Code of Conduct.

It was alleged, that, sometime in October to November 2015, he was assigned, by management, to backstop one Shayne Mbizi who was going on leave, and, that, during the course of that period the appellant failed to account for R1,780 and USD600 respectively.

The respondent alleged that during the period in issue, the second appellant had:

(a) On 29 October 2015, been given a cash sales book together with sales for that day. Among those sales was R1,780 as per receipt number 018461. The said amount was neither posted onto the daily cash book nor was it banked with the cash office as per the company practice.

(b) On 2 November 2015, received USD1,200 in cash sales but had only posted USD1,000 onto the cashbook. In terms of receipt number 018529, received a cash sale of USD286 but only USD186 was posted onto the cashbook.

(c) On 16 November 2015, posted USD120 from receipt number 018538 valued at USD220, and, as a result, USD100 was not remitted to the cash office.

(d) On 18 November 2015, a receipt number in the name of a client, one Thomas Knowledge, indicated a cash payment of USD546 but only USD446 was posted onto the cash sale.

In response to the charge letter, the second appellant accepted indebtedness of the USD600, and, as far as the issue of the missing R1,780 was concerned, he requested that further investigations be conducted.

Pursuant to the charges, disciplinary proceedings were conducted wherein the second appellant was found guilty and dismissed from employment.

An internal appeal was lodged to the Appeals Committee which upheld the decision of the disciplinary authority.

Thereafter, the second appellant approached the Ministry of Public Service, Labour, and Social Welfare with a complaint of unfair dismissal.

The parties then appeared before the first appellant for conciliation.

They reached a stalemate, which led to the subsequent issuance of a Certificate of No Settlement.

The first appellant, the labour officer, then proceeded to deal with the matter in terms of section 93(5)(c) of the Labour Act [Chapter 28:01].

Before the labour officer, the second appellant raised six grounds of appeal in which he contended, that, he had been wrongly accused of the said charges. He further argued, that, the acknowledgment of debt, which he is said to have purportedly written, was fabricated. In his final submissions, the second appellant argued, that, these charges were a ploy by the respondent to deprive him of his retrenchment package.

The respondent opposed the second appellant's case in all material respects.

Following the arguments, the labour officer made a ruling in favour of the second appellant. She overturned the decision of the Disciplinary Committee on the basis, that, the respondent had failed to prove its case beyond a reasonable doubt. In arriving at this decision, reliance was placed on the case of Astra Industries Ltd v Chamburuka SC27-12.

The labour officer consequently ordered the reinstatement of the second appellant without loss of salary and benefits.

It is this ruling which was subject of confirmation before the court a quo in terms of section 93(5a) and (5b) of the Labour Act.

The application for confirmation was opposed.

The issue for determination before the court a quo was whether or not the second appellant was unfairly dismissed.

Contrary to the findings of the labour officer, the court a quo held that the onus of proof in disciplinary proceedings was on a balance of probabilities.

The court a quo held, that, the labour officer had erred in placing reliance on Astra Industries Ltd v Chamburuka SC27-12.

In assessing the charge, on a balance of probabilities, the court a quo found that there was no unfair dismissal and proceeded to dismiss the application for confirmation.

Aggrieved by the decision of the court a quo, the second appellant noted an appeal to this Court on the following grounds:

“(a) The court a quo erred on a point of law in finding, that, the second appellant (the employee) had the onus to prove the admitted fact, that, in compiling the electronic cash book, he had relied only upon the cashier's handwritten notes.

(b) Further, the court a quo erred on a point of law in not finding that the respondent had failed to prove the essential elements of theft or fraud.

(c) Further, the court a quo misdirected itself in interfering with the labour officer's factual findings which had not been proved to be irrational or grossly unreasonable.”

Although the labour officer was cited as the first appellant she has not participated in this appeal nor has she filed any documents.

That is the proper way of dealing with the dispute, as she is not a litigant.

She would only have filed the application for confirmation in compliance with the law. She would therefore have no interest in the matter and we heard the appeal in her absence.

In his heads of argument, the second appellant argued, that, the court a quo erred in holding that he, the second appellant, had the onus to prove an admitted fact.

The appellant argued, that, the nature of the court a quo's misdirection in that regard was such that the conclusion arrived at by the court a quo was per incuriam.

The appellant further argued, that, the court a quo erred when it failed to make a finding that the respondent had failed to prove the essential elements of theft or fraud.

It was his argument that the respondent failed to prove its case, even on a preponderance of probabilities, and, as such, the court a quo ought not to have found in its favour.

In his final submissions, the appellant averred that the court a quo misdirected itself when it interfered with the factual findings of the labour officer without a finding of irrationality on the part of her decision.

Per contra, the respondent argued that the key issue for determination was whether or not the court a quo had erred in making its decision.

The respondent argued, that, the burden of proof in labour proceedings was proof on a balance of probabilities; therefore, the appellant had failed to interpret the position in Astra Industries Ltd v Chamburuka SC27-12.

It further argued, that, what determines where the onus of proof lies is the person who makes the allegations. In casu, the respondent argued, that, it was the appellant making the allegations, and, therefore, on principle, he must be able to prove the point.

The respondent further argued, that, the court a quo was not in error, as such, the appeal ought to be dismissed with costs.

Although the parties have made arguments on the merits, it is our view that a more fundamental issue, pertaining to the procedure adopted by the parties, including the labour officer, in the resolution of the matter, arises in this case.

It is imperative to note, that, a claim for unfair dismissal was brought by the second appellant in terms of SI 15/2006 subsequent to the dismissal of an appeal by the appeals authority.

The court notes, that, the disciplinary authority, when hearing the matter, made factual findings which were confirmed by the designated Appeals Officer.

It is against this background that the court takes the view, that, a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings in question were properly before the labour officer in the first place.

In that regard, the issues that arise for determination are the following:

(i) The ambit of the jurisdiction of a labour officer, under section 93 of the Labour Act, where a matter is referred to him or her in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006, otherwise referred to as the Model Code of Conduct; and

(ii) Consequent thereto, whether or not the subsection is consistent with sections 101 and 92D of the Labour Act [Chapter 28:01] (the Act) as well as section 12B thereof.

We are indebted to counsel for undertaking further research and submitting additional written submissions to the court so that clarity on this issue may be achieved.

Counsel for the appellant made the following submissions:

He submitted that sub-section (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006 (the Model Code of Conduct) is inconsistent with sections 92D and 101(5) of the Labour Act [Chapter 28:01].

In this regard, he sought reliance on the authorities of Mwenye v Lonrho Zimbabwe Ltd 1999 (2) ZLR 429 (S) and Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S).

In consequence thereto, he has submitted that due to the inconsistency, subsection (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) should be struck down.

On the other hand, counsel for the respondent has argued an alternative position to that presented by counsel for the appellant.

He urged the court to find, that, there is in fact no conflict between the provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct).

Further to the above, counsel has urged the court to find that a labour officer has the requisite jurisdiction to deal with a matter referred to him on the basis that a dismissal has been effected in contravention of section 12B(3) of the Labour Act.

Although the issues for determination in this appeal emanate from a reference of an unfair dismissal under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct), the enabling legislative provision for such reference is section 101 of the Labour Act, in particular subsections (5) and (6) thereof.

The law provides:

“(5) Notwithstanding this Part, but subject to subs (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subs (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

The Labour Act has been subjected to numerous amendments ever since it was initially promulgated as the Labour Relations Act [Chapter 28:01], ultimately ending as the Labour Act as it is currently known.

For some reason, section 101 of the Labour Act has remained in the same format as it was, with minor amendments which are not pertinent for the resolution of this dispute.

Subsections (5) and (6) have been considered by this Court in order to ascertain what it is that a labour officer is empowered to do or determine upon reference of a matter to such labour officer in terms of section 101(5) or (6) of the Labour Act.

Section 101(5), under the former Labour Relations Act, was considered by this Court in Mwenye v Lonrho Zimbabwe 1999 (2) 429 (S). At 433C-434B, GUBBAY CJ remarked as follows:

“Section 93(1) vests in a labour relations officer a general jurisdiction to deal with any dispute, either on his own initiative or on reference to him by one of the parties. Section 101 of the Act (then as s117A) was introduced on January 1, 1993 by the Labour Relations Amendment Act 12 of 1992. It then became possible for an employment code of conduct, binding in respect of a particular industry, undertaking, or workplace, to be registered; provided it contained the matters specified in s101(3) of the Act….,.

Against this background, it does not seem to me that the legislative objective introducing the new procedure was to relieve labour relations officers of the burden of determining disputes. It was rather to return to the employee and employer a greater degree of autonomy with regard to the determination of their disputes than previously enjoyed.

Section 101(5) of the Act is, in effect, an exception to section 93.

It is a provision designed for the benefit of the parties. As long as the dispute or matter is: (a) the subject of proceedings under a code; or (b) liable to be the subject of proceedings under a code; no labour relations officer may intervene.

His power to determine or otherwise dispose of the matter under section 101(6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code.

Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the thirty day period, the other could raise section 101(5) as a defence.

On the other hand, where the parties are ad idem that their dispute is incapable of resolution under the code, or both deem it more advantageous to have it determined by a labour relations officer, then, the dispute or matter is no longer 'liable' to be the subject of proceedings under the code. It may be referred immediately to a labour relations officer.”

The import of this authority is to illustrate the ambit of the jurisdiction of the labour officer under section 93 of the Labour Act.

In other words, does a labour officer have carte blanche to deal with the matter as he sees fit or is his jurisdiction specific?

The import of these provisions was considered by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170. At p172F-173D, this Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).

In this case, there were delays in the determination of the matter due to a number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant's response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch his flight and had other business to do in Harare.

When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delay.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the code of conduct.”…,.

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were, firstly, the fact that a determination had been made, and, secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

Although this Court has clearly set out the procedures applicable when a matter is referred to a labour officer in terms of section 101 of the Labour Act, it is evident that the process is fraught with confusion.

In fairness to the parties involved in this debacle, the incidence of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) and the provisions of section 8(6) and (7) of the Model Code of Conduct might have, to a large extent, contributed to the confusion.

It is imperative, therefore, that the role of a labour officer under the enabling sections be examined.

The issue before the court is a simple one: what are the powers exercisable by a labour officer in terms of section 93 of the Labour Act?

A labour officer is not a stand-alone court or tribunal, and exercises his or her powers upon reference to him of matters or disputes.

Viewed in this context, one does not envisage any issue over the exercise of those powers under the Labour Act.

The labour officer is a creature of the Labour Act. He is imbued with certain and specified duties and obligations under the Labour Act, and, perforce, his powers are only to be exercised as defined in the Labour Act. Therefore, the jurisdiction that he is empowered to exercise, and the nature of the relief that he provides, after an exercise of such jurisdiction, must be found in the Labour Act.

It cannot emanate from any other source.

However, a ticklish question on the exercise of this jurisdiction may arise in this regard, mainly emanating from the provisions which stipulate the matters in terms of which the labour officer exercises his jurisdiction and make provision for the reference of such matters to the labour officer.

Section 93 of the Labour Act is not a stand-alone provision. It must be read with other provisions in the Labour Act or related provisions from codes of conduct. It is therefore to the Labour Act that one must look, in particular section 93(1), (2) and (3) of the Labour Act.

Section 93 of the Labour Act, as amended by Act 5 of 2015, reads:

“93 Powers of labour officers

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation, or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under ss (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

The question is: what dispute is a labour officer empowered to preside over in terms of section 93(1) of the Labour Act?

The clear principle that emerges from the authorities in which section 93 of the Labour Act has been considered is that his mandate is to preside over a fresh hearing wherein a complaint has been lodged against an employer or there exists a dispute between the parties.

Consequently, his jurisdiction is limited to matters where there are allegations of unfair labour practices or unfair dismissal.

Unfair labour practices are defined in section 8 of the Labour Act and include a whole host of wrongs that an employer may be guilty of in the workplace.

This is not the complaint here.

On 5 May 2016, the designated Appeals Officer advised the second appellant, in writing, that his appeal had not been successful. The latter acknowledged receipt on 9 May 2016.

On 29 April 2016, he filed a complaint with the Ministry of Public Service, Labour and Social Welfare, alleging “an unfair dismissal”.

On 3 May 2016, the labour officer notified the parties to appear before her for a hearing on 7 May 2016.

On 17 May 2016, the labour officer issued a Certificate of No Settlement.

On some unnamed date, she advised the parties to file submissions for her consideration. It is common cause that she issued a draft ruling on 5 September 2016, which ruling was the subject of the application for confirmation which was refused by the Labour Court. She stated therein that she had determined the matter in accordance with section 93(5)(c) of the Labour Act.

In his submissions before the labour officer, the second appellant made allegations that there had been a delay in the determination of his appeal - even though, at the time he lodged the complaint, he had been notified of its dismissal.

I note that he did not seek an appeal before the labour officer.

The respondent filed a response in which it responded to the complaints on the merits. It also feebly raised a point in limine on the procedure adopted by the second appellant.

The labour officer was of the opinion that the second appellant had lodged an appeal for determination by her.

This is confirmed by the labour officer making reference to the following grounds of appeal as being issues for determination before her:

“1. Wrongly accused of stealing 1,730 Rands (one thousand seven hundred and thirty rands);

2. Wrongly accused of stealing/misrepresenting US600 (six hundred dollars);

3. Withdrawal of police report;

4. Fabricated acknowledgement of debt;

5. Report to Ministry of Labour and subsequent courtesy call from M C Meats Human Resources;

6. Prejudiced of retrenchment package.”

The labour officer thereafter proceeded to analyze the facts and consider the applicable law. She then addressed the grounds of appeal.

After this exercise, she went on to quash the conviction of the second appellant on the misconduct charges and ordered that he be reinstated to his original position without loss of salary and benefits.

In making this ruling she said:

“It is clear from what has been discussed above, that, the Respondent failed to prove its case that the appellant contravened section 4(d), theft or fraud (sic) of the National Employment Code of Conduct S.I. 15 of 2006. In light of the above, the conviction of Appellant be and is hereby quashed. The Respondent be and is hereby ordered to reinstate the appellant to his original position without loss of salary and benefits from the date of dismissal within 30 days of receipt of the ruling.”

A perusal of the ruling issued by the labour officer will tend to show, that, the proceedings conducted by her were in effect an appeal against the decision of the designated Appeals Officer dismissing the second appellant's appeal against the findings of guilt by the disciplinary authority and the penalty of dismissal meted out as a result.

Undoubtedly, she was acting as an appeal tribunal.

A simple reading of the subsections of section 93 of the Labour Act set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1) of the Labour Act, it is a matter where the labour officer must conciliate on the dispute.

At this stage, all that a labour officer is obliged to do under the Labour Act is to attempt to bring the parties to a stage where a settlement is achieved.

Thus, the proceedings before the labour officer, under section 93(1) of the Labour Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Labour Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

Section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) is concerned with the respective parties rights in a disciplinary process to appeal against a determination made in terms of the Code.

Provision is made in the section for internal processes of appeal against determinations of formal tribunals at the workplace.

To be fair, a simple reading of the above statutory provisions would appear to suggest, that, a reference to a labour officer, or an Employment Council Agent, under the same, is an appeal.

To place the matter in its proper context, regard must be had to the provisions in the Labour Act which permit a reference to a labour officer, or an Employment Council Agent, as the case may be.

Therefore, and in addition, regard must be had to section 101(5) and (6) of the Labour Act which empower a labour officer to exercise powers inherent in such officer under section 93 of the Labour Act.

Section 93(1), (2) and (3) of the Labour Act make provision for conciliation.

To conciliate is to reconcile or make compatible. Thus, the first duty of a labour officer, in conciliation proceedings, is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute.

Section 93 of the Labour Act, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.

The finding that the labour officer had no jurisdiction to entertain the matter disposes of the issue.

In casu, it matters not that the labour officer went on to decide the matter under section 93(5) of the Labour Act after which she issued what she termed “a draft ruling”.

That is not an issue for consideration before the court as nothing turns on that ruling.

The method by which she arrived at a draft ruling is, as a result, of no consequence to the determination of this appeal.

The reason I say this is that section 93(5) of the Labour Act does not empower a labour officer to examine earlier proceedings and make a determination as to their correctness.

That said, it only remains for me to consider the relationship of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) with section 93 and section 101 of the Labour Act.

It seems to me that section 8(6) of the Model Code of Conduct appears to be out of sync with the whole section.

It seems to suggest, that, a party aggrieved by a decision or manner in which an appeal has been conducted has a right of appeal to a labour officer in terms of section 93 of the Labour Act.

To my mind this is obviously incorrect, if regard is had to the wording of section 93 of the Labour Act.

The powers bestowed upon a labour officer under the section are confined to disputes related to unfair labour practices or unfair dismissals.

A reference under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 cannot be defined as relating to either an unfair labour practice or unfair dismissal.

Given the scenario related above, what is it that the labour officer was presiding over?

What then is the import of section 8(6) and (7) of the Model Code of Conduct in terms of which this dispute was referred to the labour officer?

Is the reference meant to give the parties an opportunity to present their respective positions to the dispute before the labour officer afresh and for him to make a determination?

Is the labour officer exercising review or appeal powers, and, in accordance with which provision of the Labour Act?

If regard is had to the nature of the disputes that a labour officer is mandated to deal with, it becomes clear that the jurisdiction is limited to a dispute or unfair labour practice or unfair dismissal.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not suggested, in the Labour Act, that the labour officer, in this context, can exercise powers of appeal or review.

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct. The reference to the labour officer, in terms of section 8(6) of the Model Code of Conduct would, as a consequence, seem to be in direct conflict with the provisions of section 101(5) and (6) of the Labour Act.

And yet, under the various provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) a labour officer has been imbued with the power to entertain parties to a dispute without any apparent restriction.

The nature of the disputes he can entertain is not specifically defined. They have to be construed by reference to section 93(1) of the Labour Act in order to achieve clarity.

An exercise of power under section 93 of the Labour Act must be provided for in terms of the Labour Act itself. Reference must therefore be had to section 101 of the Labour Act, which reads in relevant part:

“101 Employment Codes of Conduct

(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

A perusal of the Labour Act will show, that, the only section providing for reference of a matter to a labour officer for intervention under section 93 is to be found in section 101(6): and yet, when read with subsection (5) of the same section, it becomes evident that the procedure adopted before the labour officer was not permitted by law.

In this context, the implications of what the labour officer did are obvious.

First, she assumed jurisdiction to entertain a matter which the law did not sanction. An appeal against proceedings under the Code can only lie to a court or a tribunal which is empowered by law to act as an Appeal Court or tribunal.

In casu, the labour officer assumed unto herself the jurisdiction that is imbued, by law, in an Appellate Court or tribunal.

A labour officer is not an appeal structure for purposes of section 93 of the Labour Act, nor can that power be read into the section no matter where the referral of a dispute or matter emanates from.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been any procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

There is a presumption that the Legislature does not intend to alter the law, whether it is statutory or common law, unless it provides so in specific terms. This presumption is fundamental to the interpretation of statutory provisions.

As a result, courts are enjoined, as much as possible, to construe statutes in a manner that seeks to reconcile seemingly contradictory provisions.

The appellant in this dispute was charged with misconduct in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) after which he was dismissed from employment.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

She also, again without having the jurisdiction to even hear the parties, set aside findings of fact made by a tribunal of first instance without regard to settled principles by which such findings should be set aside.

These same findings of fact reached by the disciplinary authority were confirmed by the appeal structures of the respondent.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful and nothing can stand on that decision.

The provisions of section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) must be read together with the Labour Act under which the statutory instrument was promulgated. Where the Code conflicts with any provision of the Act, it stands to reason that the provisions of the Act must prevail.

Section 2A(3) provides that the Labour Act shall prevail over any enactment which is inconsistent with it.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear that the labour officer presided over a matter over which she did not have any jurisdiction.

As stated in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act. Accordingly, the subsequent procedures were a nullity as the labour officer could not subsequently purport to make factual findings on the same matter.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and, therefore, the proceedings conducted under section 93(5)(c) of the Labour Act, by the labour officer, were, as a result, an irregularity.

In addition, the proceedings before the Labour Court, to confirm the ruling, were also a nullity.

This Court is of the view, that, the matter should have been brought before the Labour Court as an appeal.

Both counsel were in agreement with this position.

This finding has necessitated the writing of the present judgment so as to give the position that should obtain where a dispute is dealt with in terms of an employment code of conduct.

In addition it is necessary, in order that the apparent confusion that exists between the Labour Act and section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code), as highlighted in this judgment, be rectified; that the relevant Minister responsible for the administration of the Labour Act be appraised of the need to call upon the Legislature to align S.I 15/2006 to its parent statute, the Labour Act.

It is for the above reasons that this Court issued an order as described above.

This is an appeal against the whole judgment of the Labour Court handed down on 11 November 2022 wherein it dismissed the appellant's appeal against a decision of a Designated Agent of the National Employment Council for Rural District Councils.

The respondent was employed by the appellant as a Housing Officer. He was indicted for a disciplinary hearing on 11 November 2017 before the appellant's Disciplinary Committee. He was charged with 'committing any act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment' in terms of clause 8(d) of Statutory Instrument 87/2017; specifically, that, he unilaterally and unlawfully exempted some council tenants from paying rentals which resulted in the appellant losing revenue.

The Disciplinary Committee found in favour of the employer and dismissed the respondent.

He then appealed the decision to the Internal Appeals Committee which upheld the decision of the Disciplinary Committee.

Aggrieved by the decision, the respondent again appealed to the National Employment Council Exemptions Committee (“the Exemptions Committee”) which set aside the decision of the Internal Appeals Committee and referred the matter back to the Disciplinary Committee, for a hearing de novo, on the basis that the Disciplinary Committee was not properly constituted when it presided over the matter.

The matter was heard again by the Disciplinary Committee and it reached the same verdict and penalty. The respondent then appealed to the Internal Appeals Committee which, again, upheld the dismissal.

On 13 March 2018, he further appealed the dismissal to the National Employment Council Exemptions Committee (the Exemptions Committee) which heard the matter on 14 March 2018.

On the basis that the Exemptions Committee failed to conclude the matter within the time stipulated in section 14 of SI 87/17, and on 26 November 2018, the respondent wrote to the Designated Agent advising him of that fact.

Consequent to the respondent writing to the Designated Agent complaining about the failure by the National Employment Council Exemptions Committee to determine the matter within 30 days, the Exemptions Committee handed down reasons for its determination on 4 December 2018.

On 11 March 2021, the respondent filed an appeal with the Labour Court under cover of case number LC/H/57/19 seeking a referral of his appeal in accordance with clause 14(c) of SI 78/17.

He was seeking that the appeal be disposed of by the Designated Agent due to non-observance of the timelines and the lack of jurisdiction of the National Employment Council Exemptions Committee (the Exemptions Committee).

The grounds of appeal were couched as follows:

1. The Exemptions Committee erred at law in determining a matter without jurisdiction outside the prescribed thirty (30) working days and after the matter had been referred to the Designated Agent for disposal.

2. The Exemptions Committee erred at law in making a determination without providing reasons for such determination.

The respondent sought the following relief:

'(a) That the appeal succeeds with costs.

(b) That the decision of the Exemptions Committee be set aside.

(c) That the matter shall be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the appellant on 26 November 2018.'

On 22 May 2020, the Labour Court allowed the appeal under case number LC/H/57/19. It granted the following order:

“(a) That the instant appeal succeeds with costs.

(b) That the decision of the Exemptions Officer be set aside.

(c) That the matter be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the respondent.”

The respondent then approached the Designated Agent on the basis of this order of the Labour Court.

On 21 June 2021, the parties attended proceedings before the Designated Agent who advised the parties that he would proceed in terms of section 63(3a) of the Labour Act (the Act).

The parties were invited to file written submissions and the Designated Agent proceeded to pronounce on the matter on 19 October 2021.

In his determination, he made a finding that he lacked the requisite jurisdiction to preside over the matter as it raised review grounds. He, however, went on to deal with the substantive aspects of the matter and ultimately gave an order reinstating the respondent.

Disgruntled by the determination of the Designated Agent, the appellant appealed to the court a quo on 17 November 2021. The court found that the Designated Agent properly dealt with the matter.

It found that the issue of grading was before the Designated Agent and that he properly disposed of it. In addition, it found that the reinstatement of the respondent was proper as reinstatement could be ordered where the merits of the matter have not been entertained. In the result, the court a quo dismissed the appeal.

It is against this judgment that the present appeal was noted.

At the hearing of the appeal, the court asked counsel for the appellant to address the question of whether section 63(3a) as read with section 93 of the Labour Act confer appellate jurisdiction on a Designated Agent in view of the referral of an appeal to him by the Labour Court.

Counsel for the appellant submitted, that, the matter was referred for hearing before the Designated Agent as an appeal. He contended that the National Employment Council Exemptions Committee (the Exemption Committee) was seized with an appeal that it failed to conclude within the prescribed 30 days hence the appeal was then placed before the Designated Agent.

He submitted that section 63(3a) of the Labour Act does not confer appellate jurisdiction on Designated Agents, but, that a provision in SI 87/17 allows for matters not determined within the stipulated timeframe to be referred to a Designated Agent.

He asserted that Designated Agents have no such powers to hear appeals.

It was his submission that the Labour Court ought to have presided over the matter instead of deferring it to the Designated Agent. He relied on section 14 of SI 87/17 which provides that an appeal against the determination of the National Employment Council Exemptions Committee (the Exemptions Committee) lies with the Labour Court.

Counsel submitted that if a matter is not concluded within 30 days, it is then supposed to be referred to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act.

On the merits, counsel submitted that the court a quo erred in upholding the decision of the Designated Agent when he had conceded that he did not have jurisdiction, but, nonetheless, went on to deal with the substance of the matter.

In addition to this, it was his contention that the court a quo misdirected itself by upholding the appeal and reinstating the respondent without having dealt with the merits of the matter.

In this light, he moved that the matter be remitted to the Labour Court to deal with the matter on the merits and that the decision of the Designated Agent be set aside.

He also stated, that, if the respondent's contention was that his matter was not heard within 30 days, the correct procedure available to the respondent was to file an application for review and not launch an appeal as he did.

Conversely, the respondent submitted that his appeal lay with the Designated Agent in terms of section 14 of SI 87/17 given that the matter was not heard and concluded by the National Employment Council Exemptions Committee (the Exemptions Committee) within 30 days.

He was convinced that the determination of the Designated Agent, despite the absence of jurisdiction, was proper as well as the accompanying order for reinstatement. He believed that the Designated Agent has powers conferred upon him to give redress in matters such as his.

Section 63(3a) of the Labour Act provides as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

It is common cause that the provision that confers power on the Designated Agent to give redress to parties is section 63(3a) of the Labour Act.

The role of a Designated Agent was explained in the judgment of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 wherein the court remarked as follows…,.:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Act expressly ousts the jurisdiction of a labour officer where a designated agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Act….,.

What is key in understanding what a designated agent can or cannot do is to understand the meaning of the phrase 'redress any dispute' used in section 63(3a) of the Act.

When used as a verb, the word 'redress' according to the Oxford English Dictionary, means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.”

In as much as the above case discusses the role of a Designated Agent, it does not expressly deal with whether or not a Designated Agent has any powers conferred upon him to deal with appeals.

From a reading of the provision, there is nothing suggesting that a Designated Agent has appellate jurisdiction.

To have an appreciation of the powers bestowed upon a Designated Agent, one has to examine what it is that the Designated Agent has to do in redressing or attempting to redress a dispute.

In Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20…, it was stated;

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a) as read with section 93(1) of the Act that a designated agent can only proceed in terms of section 93 of the Act if he or she has not redressed the dispute.

He or she would be attempting to settle the dispute through conciliation.

There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.”

From the above, it is clear that a Designated Agent can do one of two things, that is;

(i) Redress a dispute by hearing and determining the issues in dispute; or
(ii) Attempt to redress the dispute through conciliation.

He cannot do both.

What is coming up from the above-quoted excerpts from Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 is that the Designated Agent will be redressing or attempting to redress a dispute in a fresh hearing.

Given the above, it is apparent that a Designated Agent does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

In casu, the matter was referred to the Designated Agent by the Labour Court in terms of section 14(c) of S.I. 87/17 which provides as follows:

“Appeals to the NEC

14. The Exemptions Committee of the National Employment Council shall hear and conclude appeals referred to it within seven working days;

(a)…,.

(b)…,.

(c) An appeal against the decision of the Exemptions Committee shall lie with the Labour Court;
if a matter is not determined or concluded within 30 working days, the employee or employer concerned may refer such matter to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act [Chapter 28:01].”

The 'matter' being referred to in subsection (c), in the context of the present matter, is an appeal against the determination of the Appeals Committee.

In other words, the above provision purports to give the Designated Agent power to 'redress or attempt to redress' the determination of the Appeals Committee.

This Court, in a line of authorities, has spoken on this, that, a Designated Agent cannot preside over a matter where a determination has been made: see Watyoka v Zupco (Northen Division) SC87-05; Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19; and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

These matters were analysed in the recent case of Nicholas Mukarati v Pioneer Coaches (Private) Limited SC34-22 where MATHONSI JA concluded on the issue as follows:

“The reasoning in Mabeza, supra, rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Act where a matter is referred to him or her in terms of section 8(6) of the National Code of Conduct.

It concluded that under section 93(1) of the Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the workplace.”

Although the above authorities were dealing with the powers of a labour officer, the same principle applies with equal force to a Designated Agent, as, in terms of section 63(3a) of the Labour Act “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 8(6) of the National Code, which was under discussion in these cases, is similarly worded to section 14(c) of SI 18/17.

Further down on the same page, MATHONSI JA observed the following:

“In fact, in Living Waters Theological Seminary v Chikwanha, supra, the court went further to state that the provisions of section 8(6) of the National Employment Code are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.”

The same can be said about section 14(c) of S.I. 87/17.

It is rendered inoperative by being ultra vires and inconsistent with the provisions of sections 63(3a) and 93 of the Labour Act.

In casu, the Designated Agent presided over a matter over which he did not have jurisdiction.

When there is a determination on the merits of a dispute, a Designated Agent has no jurisdiction, under section 93 of the Labour Act, to redress or attempt to redress such a dispute.

The ramifications of what the Designated Agent did in this situation are clear.

There is no power conferred upon him to hear appeals in terms of the Labour Act.

The matter was improperly referred to him, and, consequently, the proceedings before him and the resultant appeal before the court a quo were a nullity.

There was therefore no proper appeal before both the Labour Court and this Court.

Regarding costs, the appellant had prayed for costs of the appeal. In view of the fact that the matter turned on the interpretation of section 14 of SI 18/17 it would be in the interests of justice that there be no order as to costs.

Given the irregularities deliberated in this judgment; in the result, it is ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Designated Agent and the Labour Court are hereby set aside.

On 9 January 2008, the respondent engaged the appellant as an Operations Contract Manager in terms of a written agreement.

The agreement provided that the appellant would be an area manager responsible for Ngezi North.

The preamble to this agreement read as follows:

“Sandvik Mining and Construction Zimbabwe have entered into an agreement with various mines to provide maintenance service contracts. Under the terms of these contracts, Sandvik Mining and Construction Zimbabwe has agreed to make human resources available to these mines in order to maintain their equipment.”

At the time of the occurrence of the events central to the dispute between the parties, the appellant was based at Unki Mine.

For reasons known only to the parties, its exact location has never been revealed. It was probably assumed that the location plays very little part in the determination of the dispute.

The parties may be correct.

Early in the morning of 8 October 2014, the appellant and a colleague, one Christopher Tias, left the mine proceeding to Harare. It is common cause that Christopher Tias was the appellant's subordinate.

The appellant was driving.

Sometime around 7am the appellant received a telephone call from Sandi Zaranyika, his immediate supervisor based in Harare. The connection was bad resulting in Sandi Zaranyika terminating the phone call.

When the duo were near Featherstone, Sandi Zaranyika sent a message on Christopher Tias's mobile phone.

Although addressed to Christopher Tias, it is common cause between the parties, that, the appellant was the intended recipient.

He was told to go back to the mine and not to come to Harare until the situation at the mine had become stable.

It is common cause that the appellant was shown the message by Christopher Tias. They proceeded to Harare nevertheless.

The appellant, instead, called a subordinate at the mine. He was given information on the situation. On arrival in Harare, he was informed that the meeting had been cancelled. He was instructed to return to the mine.

On the same day, that is, 8 October 2014, he was given notification to attend a disciplinary hearing on 22 October 2014. The charge against him was that he had willfully disobeyed a lawful order in contravention of section 4(b) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (“the National Code of Conduct”).

The disciplinary hearing was held as scheduled and he was convicted of misconduct on the single charge and was dismissed from employment.

He appealed internally but was not successful.

In accordance with the Code of Conduct, the matter was referred, by the appellant, to a labour officer.

The labour officer was unable to resolve the matter and it was referred to compulsory arbitration for resolution.

The arbitrator found, that, the appellant had not willfully disobeyed a lawful order.

It was his finding, that, the only thing that the appellant did not do was to return to the mine. It was also his conclusion that it was not necessary for the appellant to go to the mine to physically check the situation in view of the fact that “someone competent to do his duties was fully in charge of the mine and confirmed that the situation was under control.”

As a result of the above findings, the arbitrator found that the appellant had committed no wrong justifying his dismissal. He ordered that the appellant be reinstated without loss of salary and benefits, or, in lieu of reinstatement, that he be paid damages if his employment was no longer tenable.

The respondent appealed to the Labour Court, which appeal succeeded.

The Labour Court found, that, the appellant had committed the misconduct that he had been charged with. The learned judge in the court a quo, as a result, found that there was wilful disobedience of a lawful order. The court therefore allowed the appeal and set aside the arbitral award in its entirety.

It is against that decision that the appellant approaches this Court.

The grounds of appeal upon which the appellant seeks relief are the following:

(1) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in finding that the appellant's conduct, in ascertaining the situation at the mine through his subordinate, Luis Matizha, constituted a wilful disobedience to a lawful order. Such a finding is grossly unreasonable so as to raise a sense of shock that no reasonable tribunal properly applying its mind to the question and the order given by the employer would come to that conclusion.

(2) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in failing to appreciate that the effect of the evidence of Luis Matizha showed that he had managed the situation at the mine to be stable. Thus, the court's finding that the witness's evidence connoted that all was not well at the mine was so outrageous in its defiance of logic that no sensible person who has applied his mind to the question to be decided could arrive at it.

This matter proceeded to compulsory arbitration through a reference to the labour officer in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the National Code of Conduct).

The documentation in terms of which the matter was referred to the labour officer is not on record. His deliberations are not on record. His own referral to compulsory arbitration is also not on record.

What is on record is what the arbitrator recorded as the terms of reference by the labour officer to arbitration. The terms of reference agreed by the parties were the following:

Whether or not the claimant was unlawfully dismissed; if so, to determine the appropriate remedy.

It is obvious that, in casu, the termination was effected in terms of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the National Code of Conduct).

The appellant in this dispute was charged with misconduct in terms of the National Employment Code of Conduct. He was subjected to a disciplinary hearing in terms of a Code of Conduct, as required by the law, after which he was dismissed from employment.

Given that the appellant was subjected to a properly conducted disciplinary process which culminated in a verdict and a dismissal consequent thereto, a reference to the labour officer, alleging unfair dismissal, does not accord with the law.

The labour officer did not deal with the merits of the disciplinary process.

On that premise, it cannot be said that the dismissal was unfair as envisaged in terms of the Labour Act.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

This process could only be set aside through an appeal or a review.

The process before the labour officer was none of the above.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Sections 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days or receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct.

The reference to the labour officer, in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006, would, as a consequence, seem to be in direct contrast to the provisions of section 101(5) and (6) of the Labour Act.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Employment Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not so.

In sum, this means that the proceedings before the labour officer are a nullity as are the proceedings before the arbitrator.

It is therefore disquieting to note what the arbitrator said:

“Unless there are other hidden issues, there is absolutely nothing wrong with what the claimant did that warrants dismissal. Moreso when one considers the fact, that, the claimant had a clean record and also making decisions from a managerial realm, there was nothing weird done to warrant dismissal. The issue is simply trivial to say the least; for it seems the respondent simply wanted the claimant to go back to the mine even though the assignment could have been simply and easily done by just making a phone call and check on the stability of operations at the mine, like what the claimant did.”

A perusal of the record will show that a claim for unfair dismissal was presented before the arbitrator.

In his statement of claim, the appellant made reference to the disciplinary proceedings instituted against him and the fact that he was found guilty of the charge of misconduct preferred against him resulting in his dismissal from employment. He also made reference to the fact that he had appealed against the verdict and the penalty to the Appeals Authority which authority confirmed both the verdict and the penalty.

The appellant ends his claim by stating that he was wrongly found guilty.

As a consequence, he prays for reinstatement, back-pay from the date of dismissal, and damages in lieu of reinstatement.

It is clear that the claim brought by the appellant, although disguised as an unfair dismissal, was in actual fact an appeal against the dismissal of his appeal by the Appeals Authority.

This much is obvious from his statement that he was wrongly found guilty.

What he sought was a reversal of the findings of the disciplinary authority.

The question is: did the arbitrator have the jurisdiction to act as an Appeal Tribunal and set aside the decision of the Appeals Authority?

This matter made its way to the arbitrator as a reference to compulsory arbitration from a labour officer acting in terms of section 93 of the Labour Act [Chapter 28:01].

His function, under section 93 of the Labour Act, is to conciliate or settle the dispute, failing which he issues a Certificate of No Settlement and refers it to an arbitrator, under section 93(5) of the Labour Act, where the dispute is a dispute of right.

In Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, at p172, this court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a Code of Conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii))…,.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the Code of Conduct.”

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were:

(i) Firstly, the fact that a determination had been made; and

(ii) Secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

These remarks were made in consideration of the powers that a labour officer is imbued with under section 93 of the Labour Act prior to its amendment in 2015 by Act 5 of 2015.

It is obvious, therefore, that, completed proceedings under a Code of Conduct are not subject to scrutiny by a labour officer as that process is confined to initial complaints where a labour officer exercises his powers under section 93 of the Labour Act in order to conciliate, failing which he is empowered to refer the parties to arbitration.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear, that, in this case, the labour officer presided over a matter over which he did not have any jurisdiction.

As stated in Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act.

In this context, the implications of what the arbitrator did are obvious.

He was aware that the appellant had been dismissed as a result of a finding of guilt made by a disciplinary body set up under a Code of Conduct. He was equally aware that an appeals authority, set up under the same Code of Conduct, had confirmed not just the findings of guilt on the part of the appellant but had also confirmed the penalty of dismissal.

Notwithstanding this knowledge on his part, the arbitrator proceeded to entertain a claim, the premise of which was to set aside proceedings of a disciplinary body.

He obviously was not acting as an Appeals Tribunal.

He however considered himself properly seized with the proceedings. The latter proceedings were, in fact, a re-hearing of the facts of the dispute.

It is pertinent to note, that, the arbitrator did not have regard to the record of proceedings of the disciplinary hearing. The ruling by the arbitrator was couched in a manner which ignored the findings of the disciplinary tribunal. The arbitrator proceeded to substitute his own determination on the facts as if a disciplinary hearing had not been conducted and the appellant dismissed consequent to a finding of guilt.

He exercised a power he clearly did not have.

And yet, by the stroke of a pen, without exercising any appeal jurisdiction over the disciplinary body, the arbitrator went on to set aside the findings of fact reached by the disciplinary authority, which were confirmed by the appeal structures of the respondent.

Such a result would, in my view, lead to an absurdity.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful, and, nothing can stand on that decision.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and that the referral to compulsory arbitration was unlawful, and the proceedings before the arbitrator were, as a result, an irregularity.

In this case, the appeal is against the decision of the Labour Court, which set aside the arbitral award.

The court, in determining the appeal before it, had regard to the record of proceedings of the disciplinary hearing.

In my view, very little purpose would be served in setting aside the proceedings before the arbitrator.

I intend to consider the appeal in light of the findings by the Labour Court with regard to the disciplinary proceedings....,.

PATEL JA: I have read the judgment of GOWORA JA, with which judgment BHUNU JA concurs, and wish to add the following remarks.

While I agree that the appeal is devoid of merit and ought to be dismissed, I have certain reservations apropos the preliminary observations in the main judgment curtailing the jurisdictional role of labour officers and arbitrations under the governing statutory provisions.

In particular, I am inclined to the view, that, section 8 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Code of Conduct), construed in a purposive manner, is reconcilable with sections 93 and 101 of the Labour Act in such manner as to accommodate the jurisdictional competence of labour officers and arbitrators over labour disputes emanating from internal disciplinary proceedings.

Nevertheless, given the view that I take of the merits of this matter, I do not think it necessary to elaborate the aforesaid reservations in the context of this particular case....,.

BHUNU JA: I wish to comment as follows:

I have read the comments by my brother PATEL JA and I do not see how the three (3) sections alluded to by PATEL JA can be reconciled to accord a Labour Officer jurisdiction that he does not have.

It is inconceivable that a Labour Officer can assume jurisdiction over a completed matter by another tribunal without being clothed with appellate or review jurisdiction.

In the absence of specific statutory provisions, it is only appellate or review jurisdiction that authorizes a higher court or tribunal to intervene in the conduct or verdict of a subordinate court or tribunal.

In the circumstances, both the Labour Officer and the Arbitrator acted without power, jurisdiction, or authority to intervene in a matter completed in terms of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 (the National Code of Conduct).

It is for the foregoing reasons that I agree with my sister GOWORA JA.

This is an application for direct access to this Court made in terms of section 167(5) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicant intends to approach the Court, in terms of section 85(1) of the Constitution, seeking an order that his rights, as enshrined in the Constitution, were infringed by the first respondent's Non-Executive Board members, its Board, the arbitrators awards, Labour Court judgments, and the Supreme Court.

The rights so infringed being:

(i) The right to equal protection of the law in terms of section 56(1) of the Constitution;

(ii) The right to privacy in terms of section 57(c) and (e) of the Constitution;

(iii) The right to access information in terms of sections 62(2) and 62(3) of the Constitution;

(iv) Labour rights in terms of sections 65(1) and 65(4) of the Constitution;

(v) The right to administrative justice in terms of sections 68(1) and 68(2) of the Constitution;

(vi) The right to a fair hearing in terms of sections 69(2) and 69(3) of the Constitution; and

(vii) The right to property in terms of sections 71(3) and 71(4) of the Constitution.

At the commencement of the hearing, counsel, on behalf of the Attorney-General, took a preliminary point regarding the citation of the Attorney General as a party to these proceedings.

It was her view, that, there was no law being impugned in the application, and that, as a consequence, the joinder of the Attorney-General as a party was irregular. She applied for his removal as a party to the proceedings.

The applicant was of the view that the Rules required his citation, but, was constrained to concede that the citation had been done in error. Counsel, on behalf of the first respondent, did not object to the application, which was granted by consent.

The Attorney General was, therefore, removed from the proceedings and excused from further participation.

This left one respondent as a party, and, any reference to the respondent will be in respect of the first respondent herein.

The applicant was formerly employed by the respondent as its General Manager cum Chief Executive Officer. On 26 February 2009, he was sent on special leave, and, on 19 May 2009, he was notified by the respondent of its decision to terminate his employment.

Aggrieved by the decision to terminate his employment, the applicant filed a complaint of unfair dismissal. The matter proceeded to arbitration. The arbitrator found in his favour, set aside the dismissal, and ordered the reinstatement of the applicant with effect from the date of his dismissal.

Thereafter, negotiations for reinstatement having failed, the matter was, again, referred to the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator quantified his award for damages in lieu of reinstatement and ordered the respondent to pay the same.

The applicant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the applicant and challenged the arbitrator's award of punitive damages, and, further to this, his failure to deduct certain amounts allegedly owed by the applicant to the respondent.

The Labour Court dismissed the appeal and partially allowed the cross appeal to the extent of setting aside the arbitrator's award of punitive damages.

Consequently, the applicant appealed to the Supreme Court, and, the Court ordered a minor favourable adjustment to the contractual benefits that the applicant was entitled to. The matter was thereafter remitted to the arbitrator to deal with the adjustment.

Before the arbitrator, the applicant raised several preliminary issues, which were dismissed. The applicant proceeded to appeal against that interim award to the court a quo.

That appeal was struck off the roll on the basis that he had improperly appealed against an interim order.

Aggrieved, the applicant filed an application for leave to appeal to the Supreme Court. The matter was set down for the hearing of the application for leave to appeal at which stage the applicant made an oral application for the joinder to those proceedings of an application for referral to this Court.

The application for joinder was dismissed, and the two matters were heard separately.

In its judgment, viz, Erickson Mvududu v Agricultural and Rural Development Authority LC/H/23/21 dated 26 March 2021, the Labour Court made a finding that the application for referral was frivolous and vexatious. The application for leave to appeal to the Supreme Court was still pending at the time of the hearing of this application.

It proceeded to dismiss the application for referral.

Aggrieved by the dismissal of the referral application, the applicant filed the present application on 21 April 2021.

Even though he was the party bringing the suit, contrary to settled procedural principle, the applicant raised a number of preliminary issues for determination.

He averred, in limine, that, the respondent had no authority to terminate his employment, to appoint, suspend, or discharge him, to pay such remuneration and allowances to him, and to grant such leave of absence to him, being a Board member in terms of the Agricultural and Rural Development Authority Act [Chapter 18:01] (“the Act”).

As such, he submitted that the arbitrator, and all courts involved in the matter, ought not to have granted audience to the respondent without first determining the issue of its locus standi in judicio.

In so far as the judgment of the Labour Court is concerned, the applicant contends that the decision violates his right as enshrined in section 56(1) of the Constitution. He avers, that, the conclusion that his application was frivolous or vexatious, was, in itself, a violation of the Constitution.

His argument is that the conclusion by the Labour Court, that, the decision of the Supreme Court on the matter could not be challenged was outside the scope of sections 44 and 45 of the Constitution.

He contended, that, where a court misconstrues a law, applies it incorrectly, or acts outside the law, there exists a prima facie infringement of the right to equal protection of the law.

It was the applicant's contention, that, the existing judgments in this matter were obtained through fraudulent misrepresentation of facts by the respondent who lied to the courts and misrepresented to the courts that it had powers to terminate the applicant's employment when it did not have such powers. In that regard, he alleged that there was no termination in the first place.

As such, he alleged that the application was neither frivolous nor vexatious as found by the Labour Court.

The applicant, therefore, submitted that his application enjoyed prospects of success as the Board, which included him, was not the appointing authority, and, therefore, had no powers to terminate or discharge him, neither did the respondent.

He also contended, that, his salary was incorrectly calculated and that the courts misconstrued the law or acted outside the law to the extent that they rendered improper decisions.

It is on this premise that the applicant argued that his rights had been infringed.

He submitted, that, he has no other remedy and stated that there was no constitutional matter before the Supreme Court; hence there was no room to appeal.

The application was opposed by the respondent.

It averred, that, the present application for direct access was improper as there was an application for referral to the Constitutional Court that was dismissed by the Labour Court, which raised similar issues to the ones that the applicant was now raising.

It was also argued, that, the present application did not raise any constitutional issues but that the essence of the application was to seek the re-opening of the labour issues between the parties, which have been dealt with conclusively up to the highest court of the land.

It was further contended, that, in the draft order of the intended substantive application, what the applicant was seeking was the setting aside of all decisions and payment of alleged arrear salaries and benefits, thereby indirectly seeking reinstatement.

It was submitted that issues to do with unlawfulness or otherwise of the termination of the applicant's employment contract, and the remedy therefor, had already been determined to finality by the Supreme Court and hence the matter was now res judicata.

In that regard, the respondent submitted that the application was frivolous and vexatious, and, further to that, it was not in the interests of justice that it be granted as it did not enjoy any prospects of success.

It did not raise constitutional issues.

It was also submitted, that, in all proceedings leading up to the Supreme Court, the applicant never, at any stage, challenged or disputed the respondent's standing in the proceedings.

Lastly, it was averred that the applicant had another remedy, which is to seek the enforcement of the damages which he was awarded for the alleged unfair dismissal.

In the notice accompanying the present application for direct access, the applicant makes the statement, that, he is seeking leave following upon the dismissal of his application for referral of a constitutional question to the Court.

It becomes pertinent, therefore, to determine whether or not this is the type of application contemplated by law consequent to a dismissal of an application for referral, and, if so, whether or not the application as currently framed, is properly before the Court.

The Labour Court had before it an application for the referral of alleged violations of the applicant's rights by all the parties and entities mentioned above. The facts upon which the application for referral was based are identical to those alleged in the application for direct access.

In view of the procedure adopted by the applicant, it becomes necessary, for the sake of completeness, that, the relief sought before the Labour Court, and this Court, be set out in full.

The constitutional issues that the applicant sought to be referred were the following:

1. That, the Non-Executive Board members, the respondent's Board, or the respondent had no and have no locus standi and have no right to be heard in this court in terms of sections 4, 6, 7, 8, 9, 11, 13, 23, 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006 to take any action it took in this matter.

The Arbitrators awards, Labour Court judgments and Supreme Court judgment are nullities at law.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 65(1), 65(4), 68(1), 68(2), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

2. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to terminate the applicant's contract of employment in terms of sections 23, 20(1) First Schedule [section 21(1)] (sic) – POWER OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

3. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to unilaterally refuse and endorse the refusal to reinstate the applicant in terms of section 89(2)(c)(iii) of the Labour Act [Chapter 28:01], sections 23, 20(1) First Schedule [section 21(1) (sic) – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental right as enshrined in sections 11(a) and 18(1) of the former Constitution of Zimbabwe and section 56(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

4. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no power to violate the applicant's right to protection of the law by ordering quantification of damages without a legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in section 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01]; sections 6 and 7 of the Labour Act [Chapter 28:01]; section 5 of Statutory Instrument 15 of 2006; sections 11(a), 16(1), 16(3) and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

5. In casu, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts have no authority to invoke the principle of retrospectivity without legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11, 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(1), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

6. The applicant's backpay (salaries and benefits), insurance benefits, and pension benefits are vested rights which cannot be taken away without compensation.

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts cannot take away the applicant's salary and benefits in terms of section 13(2) of the Labour Act [Chapter 28:01].

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts are infringing the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 66(2), 62(3), 71(1), and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

7. The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts have no authority to set the remuneration of the applicant in terms of section 20(1) First Schedule [section 21(1)(sic)] – POWERS OF AUTHORITY, para 12 of the Agricultural and Rural Development Authority Act [Chapter 18:01], section 161(1) of the former Constitution of Zimbabwe and section 71(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

8. The applicant's premature termination of employment, illegal termination of employment and/or invoking the principle of retrospectivity take away the applicant's vested right to back-pay (salaries and benefits) and infringe the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 62(2), 62(3), 71(1) and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

In the meantime, the relief sought from the Constitutional Court, following the grant of an order for direct access, is framed in the following manner:

“1. That, the applicant's rights to the protection of the law enshrined in section 56(1) of the Constitution of Zimbabwe; to access information enshrined in sections 62(2) and 62(3) of the Constitution of Zimbabwe; to labour rights enshrined in sections 65(1) and 65(4) of the Constitution of Zimbabwe; to administrative justice enshrined in sections 68(1) and 68(2) of the Constitution of Zimbabwe; to a fair hearing enshrined in sections 69(2) and 69(3) of the Constitution of Zimbabwe; and to right to property enshrined in sections 71(3) and 71(4) of the Constitution of Zimbabwe were infringed by the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court's in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/23/2019 and the Labour Court's Judgment No. LC/H/23/2021 in the matter of Erickson Mvududu v Agricultural and Rural Development Authority in that the hearings a quo, and the courts a quo, failed to appreciate that they were disabled to render such decisions.

ACCORDINGLY IT IS ORDERED:

2. That, the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/232/2019 and the Labour Court's Judgment No. LC/H/23/2021C be and are hereby declared null and void and of no force or effect and are set aside.

3. That, the dismissal of the applicant from employment by the first respondent's Board and the first respondent, on 19 May 2009, was unlawful, null and void and accordingly, it is hereby set aside.

4. That, the first respondent be and is hereby ordered to pay the applicant his arrear salary, allowances, and benefits with effect from 1 March 2009.

5. That, the respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the other to be absolved.”

The Labour Court had to decide whether or not the application for referral on the questions, as framed in the draft, had merit.

The application for referral was determined on the merits by the Labour Court.

The reasoning by the court, in such an application, is an important factor in assessing whether or not the court exercised its mind properly in coming to the conclusion that the application was frivolous or vexatious. It is therefore necessary to set out the reasoning in extenso.

The learned judge of the Labour Court stated:

“The issues that the applicant is seeking to raise are not directly relevant, or do not arise from the proceedings before the court. No constitutional infringement has been alleged in relation to the proceedings of the application for leave to appeal. The applicant seeks to impugn all decisions that have been handed down and all awards that have ever been handed down in his case, and they are not few considering that his dismissal was in May 2009, and, to date, the matter is still in the courts.

It has been to the Supreme Court, the then apex court of the land, and back.

The challenges that are now being raised as constitutional issues were decided up to the Supreme Court level and cannot now be revisited, and, if they must, it cannot be this Court that can revisit a decision of the Supreme Court.

The Labour Court has no such jurisdiction.

The issues also raised as constitutional issues must also be such that the Labour Court has jurisdiction over them. The Labour Court has no powers of reviewing process that has been through the courts up to Supreme Court. This court can also not even review decisions of other Judges of the Labour Court which were handed down by the other Judges. The court cannot even review actions taken by management at the respondent workplace unless it is referred through the proper channels.

For example, one of the alleged constitutional breach alleged is 'The most serious infringement of the applicant's fundamental rights is the fact that the applicant was unlawfully dismissed without any misconduct charges being laid against him, let alone, without following appropriate procedure in termination of the applicant's contract of employment….,.'

That this was a breach of the applicant's contract was settled up to the Supreme Court level and he was awarded damages for the unfair loss of his employment.

We cannot keep on going back to the breaches which have already been settled by the courts.

There must be an end to litigation; once the Supreme Court settled the dispute, that is the end of the road, save for the quantification issues.

The applicant alleges that all the awards, all the Labour Court judgments, and the Supreme Court judgments were disabled.

If there was anything wrong with the Supreme Court judgment, it cannot be brought back to the arbitrators and the Labour Court.

The issues raised, the manner in which they are being raised, seem to lend credence to the fact that the appellant is just being frivolous and vexatious.

In deciding whether the matter being raised is frivolous, the court has been referred to the case of Martin v Attorney–General and Anor 1993 (1) ZLR 153 (S).

In that case, the court stated that:

'In the context of section 24(2), the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by lack of seriousness, one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious' in contradistinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in the full appreciation that it cannot succeed; it is not raised bona fide, and, a referral would be to permit the opponent to be vexed under a form of a legal process that was baseless.'

It is this Court's considered view, that, in raising preliminary points which seek to challenge a decision of the Supreme Court before the arbitrator, and, again, before the Labour Court and also in seeking to reopen the dispute on the merits of the fairness of the decision when the Supreme Court has already pronounced itself on that issue, the applicant's conduct is indeed marked by a lack of seriousness and the conduct is inconsistent with logic and good sense.

He surely cannot expect to succeed in getting the arbitrator, and this court, to review a decision by the Supreme Court.

The applicant cannot seriously expect the arbitrator and the Labour Court to re-open the dispute at this stage.

The applicant must be taken to appreciate that he cannot succeed. He is merely being vexatious. In the result, the application is held to be frivolous and vexatious.”

A perusal of the draft order attached to the application for referral to the Constitutional Court for determination on the merits reveals that it is the same relief as sought in the main application sought to be filed herein.

When regard is had to the judgment of the court a quo, it is evident that the learned judge considered whether the application for referral was justified. The learned judge was alive to the requirement that the court exercises its mind on the question of whether the request for referral was frivolous or vexatious.

The court sought reliance from the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) as is evident from the judgment of the court a quo above.

What is at issue for consideration herein is whether or not a person is precluded from applying to this Court for redress, under section 85 of the Constitution, where an application for referral is refused by a subordinate court.

The question posed herein was discussed and decided in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) wherein the court stated at p156D-F:

“The fallacy of the contention is self-evident. Suppose that a judicial officer, solely due to animosity towards an accused, in bad faith and without any warrant, were to rule that the question raised by him was frivolous or vexatious and so order his remand in custody pending trial. Could it then be said that the accused was only entitled to approach the Supreme Court for relief under section 24(3)?

I think not.

Such action by the judicial officer concerned would, as mentioned before, itself constitute an infringement of the accused's entitlement to protection of the law. Moreover, and most importantly, since at the conclusion of any remand proceedings there is no right of appeal, no remedy under section 24(3) would be available to that accused.”

Section 24(3) of the former Constitution, which was under consideration in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) provided as follows:

“Where, in any proceedings such as are mentioned in subsection (2), any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”

In construing the section, the court went on to state, at p158F–159A:

“On the other hand, if a judicial officer, after applying conscientious and objective thought to the question raised in the proceedings before him, were to express the opinion that it was frivolous or vexatious, the requesting party would, in consequence, have no locus standi to apply to the Supreme Court for redress under section 24(1).

He would only be entitled, if an appeal lay from the determination of the proceedings, to raise the question in reliance upon the provisions of section 24(3).

For these reasons, I am satisfied that the present application was correctly brought under section 24(1) of the Constitution. The order made by the magistrate was, in the circumstances, beyond his jurisdiction. This court must now place itself in the position it would have been had the magistrate, as he ought to have done, referred to it the question raised before him."

However, in a subsequent matter, S v Mbire 1997 (1) ZLR 579, the Supreme Court spelt out, that, it was only in rare and special situations, such as were found to exist in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) that an application under section 24(1) would be entertained against a refusal for referral under section 24(2).

The applicant seeks leave for access to the Constitutional Court in terms of section 167(5) of the Constitution.

When regard is had to the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) it is clear, that, once a finding is made that the application for referral is frivolous or vexatious, the requesting party is precluded from approaching the court under section 85 of the Constitution for the determination of the question.

The position is different where the requesting party alleges that those proceedings, on their own, violated his right.

That is not the contention in casu.

The applicant intends to obtain an omnibus order for the setting aside of all proceedings between himself and the respondent.

What is evident is that the Labour Court has made a determination of the questions sought to be raised by the applicant and found no merit in the alleged constitutional violations. The court made a decision that there must be finality to litigation and that there is no legal basis, on the papers filed by the applicant, to substantiate an allegation of the violation of his rights. The court stated, that, there is no legal recourse open to the applicant to have all the processes surrounding his dispute with the third respondent to be reopened.

This is the relief he seeks before the Constitutional Court.

A pronouncement having been made on the issue, it is now res judicata. The judgment of the Labour Court is extant and remains so until and unless set aside.

It has not been set aside and binds all parties thereto....,.

This is an appeal against a judgment of the Labour Court dismissing an appeal against an award rendered by an arbitrator. That arbitral award quantified the damages payable to the appellant pursuant to an earlier award ordering his reinstatement into the service of the respondent.

The respondent is a statutory body established under the Agricultural and Rural Development Authority Act [Chapter 18:01].

The appellant was employed by the respondent in January 2008 as its Chief Executive Officer cum General Manager.

On 26 February 2009 he was sent on special leave, and, on 19 May 2009 he was notified by the respondent of its decision to terminate his employment.

The matter was then referred to an arbitrator.

On 26 January 2010, the arbitrator found that the appellant had been unlawfully dismissed and ordered his reinstatement with effect from the date of his purported dismissal. Thereafter, negotiations for reinstatement having failed, the matter was again referred to the arbitrator.

On 27 October 2010, the arbitrator quantified his award for damages in lieu of reinstatement. He based his award on a monthly salary of US$1,009 in accordance with documentary evidence furnished by the respondent. He then ordered the respondent to pay the following amounts:

$19,384 as back-pay and benefits from the date of dismissal to the date of his first award;
Cash in lieu of leave;
$60,540 being sixty months salary as damages for loss of employment;
A further $60,540 being sixty months salary as punitive damages for failure to reinstate; and
Interest at the prescribed rate on all of these amounts.

The appellant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the appellant, and challenged the arbitrator's award of punitive damages and his failure to deduct certain amounts allegedly owed by the appellant to the respondent.

The court a quo dismissed the appeal and partially allowed the cross-appeal for the following reasons:

It found, having regard to the relevant correspondence, that, the possibility of reinstatement was not part of the arbitrator's mandate. The effective date of termination of employment was 4 February 2010, when the respondent opted to pay damages, and not when the Labour Court ruled against the appellant's reinstatement. The court also found that the arbitrator's reliance on a monthly salary of $1,009 was based on irrefutable evidence and more in accordance with reason, as compared with the figure of $5,000 claimed by the appellant.

As regards the appellant's claim for contractual benefits, no documentary or other evidence was placed before the arbitrator to substantiate that claim.

Again, his claim for punitive damages was neither placed before the arbitrator nor substantiated by any supporting evidence.

Similarly, the respondent's claim to deduct certain amounts owed by the appellant was not raised before the arbitrator.

In the event, the court a quo dismissed the appeal and allowed the cross-appeal to the extent of setting aside the arbitrator's award of punitive damages.

The issues raised in the notice of appeal herein are largely identical to those before the Labour Court and may be summarised as follows:

(i) Whether the question of reinstatement was an issue before the arbitrator, in addition to the quantification of damages in lieu thereof.

(ii) What was the effective date of termination of employment? (This issue was not pursued by counsel for the appellant and appears to have been abandoned).

(iii) What was the correct amount of the appellant's monthly salary?

(iv) Was the appellant entitled to his claim for contractual benefits?

(v) Whether the claim for punitive damages was properly before the arbitrator and correctly awarded by him.

At the hearing of this matter, counsel for the appellant largely focused his argument on the question of reinstatement.

He submits, that, damages are only payable if reinstatement is not tenable. This is not a matter for the employer's election, but, as envisaged in sections 89(2)(c) and 97(2) of the Labour Act [Chapter 28:01], a matter of fact to be alleged and proved by the employer.

There must first be an inquiry as to whether reinstatement is no longer tenable, and, the employee remains employed until that inquiry is finalised.

Despite the appellant's submissions on this point, the arbitrator proceeded on the basis that he was only dealing with quantification.

Similarly, although this was raised before the court a quo, it misdirected itself in not upholding this ground of appeal.

The matter should therefore be remitted to that court to determine this question.

This is an appeal against the whole judgment of the Labour Court, dated 22 March 2019, setting aside an arbitral award which had been granted in favour of the appellant.

The detailed facts of the case can be summarised as follows:

The respondent was, from 22 October 2013, employed by the appellant as a Campus Co-ordinator. He was responsible for the Tynwald Campus.

On 27 May 2015, he was served with a letter advising him of his disciplinary hearing, which was to be held on 3 and 4 June 2015. The appellant was charging the respondent with gross inefficiency in the performance of his duties, wilful disobedience of a lawful order, and acts of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 (hereinafter referred to as “SI 15 of 2006”).

The Disciplinary Committee found the respondent guilty of wilful disobedience of a lawful order and acts of misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. He was served with a dismissal letter on 4 June 2015.

The respondent noted an appeal to the Appeals Committee, which upheld the decision of the Disciplinary Committee on conviction but set aside the penalty of dismissal and substituted it with a demotion to a lower position.

The respondent was required to indicate his acceptance of the demotion by signing a copy of the letter. He did not. As a result, the demotion was subsequently withdrawn by a letter dated 28 July 2015.

Aggrieved by that decision, the respondent referred the matter to a Labour Officer for conciliation. When conciliation failed, the Labour Officer referred the matter for compulsory arbitration.

In his terms of reference, the arbitrator had to determine whether or not the disciplinary proceedings had complied with the rules of natural justice; whether or not the respondent had been unfairly dismissed; whether or not the respondent had the right to demand reinstatement; and whether or not it was lawful for the respondent to accept an offer of a lesser penalty and/or the appropriate remedy.

The arbitrator found, that, the principles of natural justice had been observed, and that, as such, the respondent had been fairly dismissed. Concerning reinstatement, the arbitrator found that the respondent had no basis to make any demands as he had been properly dismissed.

The arbitrator, however, observed that the Appeals Committee had not exercised its mandate as an appeals authority. It reasoned, that, it ought to have deliberated on the appeal placed before it and not be side tracked by the mitigation tendered before it by the respondent.

The arbitrator, however, found that notwithstanding the error by the Appeals Committee, he, in his capacity as an Appeals Tribunal could determine the matter on the merits.

He, in his award, upheld the decision of the Appeals Committee.

Aggrieved by that award, the respondent noted an appeal to the Labour Court (“the court a quo”) on the ground that the award had erroneously ruled that the appellant had complied with rules of natural justice; that the arbitrator had erred and misdirected himself in not considering the real issues which were before him; and erroneously held that the Appeals Committee had not properly dealt with the appeal.

The court a quo found, that, the arbitrator incorrectly considered the dictates of procedural and substantive fairness as pronounced in the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 in terms of which the respondent was charged.

The court a quo found, that, the respondent had not been furnished with a charge sheet before the disciplinary hearing and that the hearing was not fairly conducted.

Further, the court a quo ruled, that, from the totality of the facts, there was bias in the proceedings because of the appellant's service of the charge sheet to the respondent on the date of the hearing; hearing submissions in mitigation before handing down the verdict; and handing down a guilty verdict together with the penalty of dismissal.

The court a quo ruled, that, the arbitrator erred in concluding that the Appeals Committee had not made a determination on the appeal when the record established that the respondent had abandoned his grounds of appeal and requested that the Appeals Committee only address the issue of the penalty imposed by the disciplinary committee, resulting in the Appeals Committee imposing a lesser sentence.

Consequently, the court a quo allowed the appeal and ordered that the arbitral award and the disciplinary proceedings by the appellant be set aside and that the respondent be reinstated to his original position without loss of salary and benefits, or, alternatively, that he be paid damages in lieu of reinstatement.

Aggrieved by the decision of the court a quo, the appellant noted this appeal on the following grounds;

“1. The court a quo erred at law in upholding review grounds in the form of bias and the failure to follow procedures which had been improperly placed before it by way of an appeal and not a review.

2. The court a quo erred at law in considering the incompetent remedy of reinstatement when it had upheld review grounds whose appropriate remedy, assuming the grounds had been properly placed before the court, would have been a hearing de novo. The court a quo erred at law in finding that the appellant's failure to follow the pre-termination process in section 49 of Statutory Instrument 1 of 2008 meant that the resultant termination was illegal or a nullity.

3. The court a quo further erred at law in upholding the appeal before it on the merits when it had made a finding in the judgment that the respondent had abandoned the appeal before the Appeals Committee and limited his appeal to sentence only.”

The appeal raises two issues for determination, the first issue having been raised by the court at the hearing of the appeal.

1. Whether or not the matter was properly before the labour officer, the arbitrator, and the court a quo?

2. Whether or not the court a quo's decision on the charge against the respondent, and finding of bias against him, was correct.

At the hearing, we indicated to the parties that the main issue for determination was whether or not the labour officer and the arbitrator had jurisdiction to hear the matter, and that, if they did, whether or not the court a quo's decision on the charge against the respondent and finding of bias against him was correct.

Counsel for the appellant submitted, that, the labour officer and the arbitrator had no jurisdiction to hear a matter which had already been determined and completed internally by the appellant. He submitted that the referral was done in terms of S.I.15 of 2006 and that the process was an appeal to the labour officer.

Counsel for the appellant contended, that, the grounds presented to the labour officer were grounds for review, particularly the issue of bias, therefore, the respondent should have approached the Labour Court for review.

On bias, he submitted that there were three charges against the respondent and he was acquitted on one, thus, the possibility of bias was unlikely. On the issue that the respondent was not given the particulars of the charge before the date of hearing, counsel for the appellant submitted that the respondent was, on 27 May 2015, served with a letter which articulated the charges.

Counsel for the respondent submitted, that, the labour officer and the arbitrator had jurisdiction to hear the matter. He submitted, that, in Makumire v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…, a remedy was provided to a person aggrieved by the decision of the Appeals Committee or Disciplinary Committee and that the labour officer assumed jurisdiction on that basis.

Concerning the issue of bias, counsel for the respondent argued that the particulars of the charges were not served on the respondent with the charges. He contended, that, the Appeals Committee's hearing was tainted by irregularities and that the appellant's appeal is devoid of merit.

The validity of this appeal depends on whether or not a labour officer, and the arbitrator, have jurisdiction to preside over matters which will have been determined by disciplinary committees and appeals committees.

The jurisdiction of a Labour Officer is provided for by section 93(1) to (3) of the Labour Act [Chapter 28:01] which provides as follows:

“93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.”

In terms of section 93(1) to (3) of the Labour Act, the jurisdiction of a labour officer is limited to attempting to settle labour disputes or unfair labour practices through conciliation, or, by referring such labour disputes or unfair labour practices to arbitration.

The section does not give labour officers appellate jurisdiction over matters already heard and determined by disciplinary committees and appeals committees.

When a matter is determined by a disciplinary committee or appeals committee it can no longer be conciliated as a decision will have been made by a competent authority whose decision can only be appealed against to the Labour Court.

This issue was clarified by this Court in Sakarombe N.O. & Anor v Montana Carswell Meats (Private) Ltd SC44-20 where it held:

“A simple reading of the subsections of section 93 set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1), it is a matter where the labour officer must conciliate on the dispute. At this stage, all that a labour officer is obliged to do under the Act is to attempt to bring the parties to a stage where a settlement is achieved. Thus, the proceedings before the labour officer, under section 93(1) of the Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

Section 93(1), (2) and (3) make provision for conciliation. To conciliate is to reconcile or make compatible.

Thus, the first duty of a labour officer in conciliation proceedings is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute. Section 93, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.”…,.

A labour officer's jurisdiction is also provided for by section 101(5) and (6) of the Labour Act which provides as follows:

“(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”…,.

In terms of section 101(5) of the Labour Act, a labour officer is not allowed to intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

In terms of section 101(6) of the Labour Act, if a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer the dispute or unfair labour practice to a labour officer for conciliation or referral to arbitration in terms of section 93 of the Labour Act.

It is important to note, that, reference is made to section 93 of the Labour Act which clearly limits the labour officer's jurisdiction to conciliation and referrals to arbitration.

The notification referred to in section 101(3)(e) of the Labour Act is notification of a hearing.

The labour officer can therefore exercise his jurisdiction in terms of section 93 of the Labour Act if the matter is not determined at the workplace within thirty days of the date of the notification. His jurisdiction is therefore limited to conciliating and referring unresolved matters to arbitration.

He does not have jurisdiction to act as an appellate tribunal.

Section 101(5) and (6) of the Labour Act was interpreted by this Court in Watyoka v Zupco (Northern Division) SC87-05; 2006 (2) ZLR 170 (S). At p172F-G, the Court said at para 10:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(i) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;
(ii) The matter has not been determined within thirty days of the date of notification; and
(iii) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).”

At p173B, the court interpreted section 101(6) of the Labour Act as follows…,:

“Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the Model Code) seems to give a labour officer appellate jurisdiction as it provides that:

“A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision.”

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 give a party aggrieved by a decision or manner in which an appeal is handled by his or her employer, or the Appeals Officer or Appeals Committee, as the case may be, a right to refer the case to a labour officer or an Employment Council Agent.

This suggests, that, a labour officer has appellate jurisdiction over decisions of the employer's Appeals Officer or Appeals Committee.

In view of the provisions of sections 93 and 101 of the Labour Act, this cannot, however, be the correct interpretation of the law as section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the Model Code) is a provision in a statutory instrument enacted in terms of the Labour Act.

Therefore, sections 93 and 101 are provisions of the Labour (National Employment Code of Conduct) Regulations parent Act.

It is trite that subsidiary legislation should be intra vires and not ultra vires provisions of the parent Act. It is also trite, that, ultra vires provisions of subsidiary legislation cannot prevail over provisions of the parent Act.

In this case, the position of the law is further reinforced by section 2A(3) of the Labour Act which provides as follows:

“2A Purpose of Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

In terms of section 2A(3) of the Labour Act, the provisions of the Labour Act shall prevail over any other enactment inconsistent with them.

The use of the words “any other enactment” means the provisions of the Labour Act prevail over other enactments, including regulations and statutory instruments. It is therefore clear, that, no legislation which is inconsistent with the provisions of the Labour Act can be enforced. Once an inconsistency is established, the provisions of the Labour Act should be enforced while those of the inconsistent enactment should be ignored.

The provisions of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 are therefore rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.

Although the parties made submissions on the merits, it is my view that a more fundamental issue on the procedure adopted by the parties, and the labour officer, in the resolution of the matter puts this matter to rest.

It is imperative to note, that, the respondent referred the matter to the labour officer after the appellant's Disciplinary Committee and the Appeals Committee had determined the matter on the merits through a disciplinary process under the Labour (National Employment Code of Conduct) Regulations, S.I. 15/2006 (the Model Code).

It is against this background that I take the view that a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings were properly before the labour officer and the arbitrator.

A labour officer is a creature of statute and can therefore only exercise jurisdiction granted to him in terms of the statute which created his office. As established under the analysis of the law, a labour officer does not have jurisdiction to exercise appellate jurisdiction over decisions of disciplinary authorities and appellate authorities in terms of Codes of Conduct.

In this case, the labour officer exercised appellate jurisdiction over the appellant's Appeals Committee's decision when he had no jurisdiction to do so. The proceedings before the labour officer are therefore a nullity. The referral to the arbitrator, and the arbitral proceedings, are also a nullity. The appeals to the Labour Court and this Court are also nullities as they are appeals against nullities.

The appellant's appeal to this Court must therefore be struck off the roll.

In terms of our review powers, as provided by section 25 of the Supreme Court Act [Chapter 7:13], the proceedings before the labour officer, the arbitrator, and the Labour Court, whose irregularities have been brought to our attention, must be set aside.

The finding that the appeal to the Labour Court was a nullity renders it unnecessary to determine issue number 2.

The appellant had to defend itself before the labour officer, the arbitrator, the Labour Court, and this Court because of the labour officer's, arbitrator's and the Labour Court's failure to understand the law on the jurisdiction of the Labour Officer. The respondent was also affected by the same failure by officials to execute their duties according to the law.

It is therefore fair and just that each party should bear its own costs.

I therefore order as follows:

1. The matter is struck off the roll.

2. The proceedings before the labour officer, the arbitrator, and the Labour Court be and are hereby set aside.

3. Each party shall bear its own costs.

The applicant ought to have been guided by Rule 43(3) of the Supreme Court Rules and ought to have filed a composite application for;

(i) Firstly, condonation and extension of time within which to apply for leave to appeal to a judge of the Supreme Court; and

(ii) Secondly, leave to appeal....,.

This is a chamber application for condonation of the late noting of appeal and extension of time within which to appeal, purportedly in terms of Rule 38(1) of the Supreme Court Rules 2018.

The brief facts giving rise to this application may be stated as follows:

On 22 September 2016, the first respondent made a decision allowing the second respondent to effect developments on Stand 18962 Boundary Road, Eastlea, Harare, whose location the applicant contends is a wetland.

The decision was made under section 130(3) of the Environmental Management Act [Chapter 20:27].

Section 130 of the Environmental Management Act prescribes a period of 28 days within which an appeal must be filed in these terms:

“(1) Subject to this section, any person who is aggrieved by any decision of any authority in terms of this Act, may, within twenty-eight days after being notified of the decision or action of the authority concerned, appeal in writing to the Minister, submitting with his appeal such fee as may be prescribed:

Provided that such appeal shall not suspend the operation of any order, decision or action of the authority issued by the Authority.

(2) For the purpose of determining an appeal noted in terms of subsection (1), the Minister (if he is not the authority concerned in the appeal) may require the authority to furnish him with the reasons for the decision or action that is the subject of the appeal and a copy of any evidence upon which the reasons are based.

(3) The Minister, after due and expeditious inquiry, may make such order on any appeal noted in terms of subsection (1) as he considers just.

(4) An appeal shall lie to the Administrative Court against any order of the Minister in terms of subsection (3).

(5) An appeal in terms of subsection (4) shall be made in the form and manner and within the period prescribed in the rules of court.

(6) On appeal, in terms of subsection (4), the Administrative Court may confirm, vary, or set aside the decision or action appealed against and may make such order, whether as to costs or otherwise, as the court thinks just.”

The Minister, having made his decision on 22 September 2016, it was apparent that when the applicant sought to appeal against the Minister's decision, in March 2019, it was out of time.

The applicant therefore approached the Administrative Court with an application for condonation of late filing of appeal on 18 March 2019 under Rule 6 of the Administrative Court Rules, SI 122 of 1980.

On 7 June 2019, the applicant's application for condonation of late noting of appeal was dismissed by the Administrative Court for lack of prospects of success.

Aggrieved by that decision, the applicant filed a notice of appeal with this Court on 1 July 2019 and served the same on the other party on 2 July 2019.

The appeal was subsequently set down for hearing on 10 July 2020.

On that date, counsel for the respondent advised counsel for the appellant that the notice of appeal had been filed one day out of time and he was going to raise that as a preliminary point. Counsel for the applicant, without much reflection, conceded and opted to have the matter removed from the roll.

It is in an endeavour to overcome the alleged late filing of the notice of appeal that the applicant has now approached this Court with this application.

In the founding papers, the applicant averred that its notice of appeal was filed one day out of time and proffered reasons for that delay. Those reasons pertained essentially to administrative issues at the law firm of the applicant's legal practitioners.

The applicant asserts, in its founding affidavit, that this is an application for condonation of the applicant's failure to file its notice of appeal against the judgment of the Administrative Court within fifteen days in terms of Rule 38(1)(a) of the Supreme Court Rules 2018 and for an extension of time within which to appeal.

The relief sought was couched as follows:

“It is ordered that:

The failure to file a notice of appeal within fifteen days of the date the judgment appealed against was given, in terms of Rule 38(1)(a) of the Supreme Court Rules 2018, be and is hereby condoned.

The extension of time within which to note an appeal be and is hereby granted. The appeal is to be deemed to have been noted on the date of this order.”

The second respondent opposed the application.

In its opposition, it raised some preliminary points. The preliminary points were that:

(i) The application was not in the form provided for in terms of Practice Direction Number 1 of 2017;

(ii) This is a Rule 43 of the Supreme Court Rules application, yet, the applicant appears to be lodging one in terms of Rule 38 of the Supreme Court Rules; and

(iii) The relief sought is incompetent as Rule 38 of the Supreme Court Rules does not provide for condonation.

The applicant, in its answering affidavit, maintained that the application was compliant with Practice Direction Number 1 of 2017, Form 3. On the appropriate Rule, the applicant agreed that this was an application under Rule 43 of the Supreme Court Rules and that reference to Rule 38 of the Supreme Court Rules was only for the fifteen-day period for lodging an appeal.

On the date of hearing, counsel for the parties maintained their positions on the points in limine.

It was apparent that both counsel were of the view that the appeal in question was under Part VI of the Supreme Court Rules 2018 hence reference to Rule 38 and Rule 43 of the Supreme Court Rules.

It was only after I pointed out that Part VI pertains to civil appeals from the High Court and the appeal in question was from the Administrative Court that counsel for the applicant realized the error and submitted, that, in that case, the application should be under Part VII of the Supreme Court Rules.

She submitted that any reference to Rule 38(1) of the Supreme Court Rules should be substituted with Rule 60(1) of the Supreme Court Rules.

Unfortunately, this belated effort to amend the application, from the bar, could not amend the applicant's founding affidavit in which the applicant was clear on the Rules under which the application was being brought and attempted to provide requirements for condonation under those Rules.

I am of the view, that, where an application is brought under Part VI of the Supreme Court Rules and the founding affidavit is specific in this respect, as in this case, a legal practitioner cannot purport to amend it.

It is also pertinent to note, that, the legal practitioner was not the deponent of the affidavit. She could, therefore, not, in any event, seek to amend an affidavit deposed to by another person and seek to substitute it with provisions under Part VII of the Supreme Court Rules.

It is apparent from a reading of the relevant provisions under those parts that their requirements are not exactly the same.

For instance, Rule 61 of the Supreme Court Rules is to the effect, that, condonation can only be granted if special circumstances are shown by way of application in writing. The applicant must thus address the issue of special circumstances in the application. A Part VI application, on the other hand, does not require the applicant to establish special circumstances (see Rule 43 of the Supreme Court Rules).

The submission by the applicant's counsel, to simply substitute Rule 38(1) with Rule 60(1) of the Supreme Court Rules, is thus untenable.

The application must stand or fall on its founding papers.

Another fatal irregularity with this application is that even if it were to be considered under Part VII, the relief sought is incompetent. Rule 60(1) of the Supreme Court Rules 2018 provides that:

“Subject to the provisions of Rule 61 and the enactment under which the appeal is lodged, a notice of appeal shall be delivered and filed in accordance with provisions of Rule 59 within 15 days of the date of the decision appealed against.”

The aforesaid Rule 61 of the Supreme Court Rules provides that:

“Save where it is expressly, or by necessary implication, prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

It is apparent that the 15 days period, and extension thereof, is subject to the provisions of the enactment in question. It is only where the enactment permits such extension that this Court may proceed to grant condonation and extension of the period.

In casu, this was an appeal from the Administrative Court and thus the question is: does the relevant enactment provide for extension of time within which to appeal?

Section 20 of the Administrative Court Act, which provides for any aggrieved party to appeal to this Court, states that:

“(1) Subject to subsection (2) and except as otherwise provided in any other enactment, any person who is dissatisfied with any decision of the Court may lodge an appeal with the Supreme Court within the period of twenty-one days immediately following the announcement by the Court of such decision.”

The section, or any part of the Administrative Court Act, does not in any way give leeway for the extension of that period of 21 days. Once an aggrieved party decides to appeal, such appeal must be lodged within 21 days.

In Shumba v Chairman, ZEC and Another HH116-08; 2008 (2) ZLR 370 (H)…, the court aptly noted in paragraph 23 the following on the use of the term 'within' before a period:

“The thirty-day period is peremptory because of the use of the word 'within' before the stipulated period. In Black's Law Dictionary, 5th Edition, the word 'within' when used relative to time has been defined, variously, as meaning 'time before, at or before, at the end of, not later than.' It is clear from the above definitions that the period of thirty days cannot be exceeded.”

Further, in commenting on the application to condone non-compliance with the stated 30-day period, the court aptly opined in paragraph 26, that:

“The applicant is asking me to condone an act provided for in an Act of Parliament. I have no such powers.

It is trite that Rules of this court cannot interfere or derogate from a specific provision of the Act. Rules are subordinate to an enactment.

To ask the court to condone a period provided for in an enactment, as urged by the applicant, would be to usurp the functions of the legislature, by purporting to amend a specific provision, which this or any other court cannot do: see Registrar General of Elections v Combined Harare Residents Association & Anor SC07-02 at p6 of the cyclostyled judgment.”

It is clear, therefore, that this Court has no jurisdiction to entertain an application for condonation for failure to comply with the period provided in section 20 of the Administrative Court Act.

That section has no provision for condonation and for extension of the period provided within which to appeal, and so, by necessary implication, Parliament did not intend that such period be extended.

Accordingly, the relief sought is incompetent.

In the circumstances, it is not necessary to consider the other point as there is no competent application before me.

On costs, I am of the view that as both parties were intent on arguing on the wrong premise, that the application was under of Part VI of the Supreme Court Rules, it is only proper that each party bears their own costs.

The application is therefore dismissed with each party bearing their own costs.

This is an appeal against part of the judgment of the Special Court for Income Tax Appeals, handed down on 25 March 2020, which dismissed the appellant's appeal filed in terms of section 65 of the Income Tax Act [Chapter 23:06] (“the Act”) against the decision of the respondent.

The respondent had dismissed certain aspects of an objection filed by the appellant against various amended assessments that the respondent had issued.

The respondent, which is the administrative body tasked with assessment, collection, and enforcement of the payment of taxes leviable under the Income Tax Act, carried out an investigation and audit into the appellant's tax compliance for annual income tax assessment returns for the period 2009 to 2013.

The investigation constituted a review into the appellant's submitted tax self-assessment returns.

Several documents were submitted to the respondent, and a number of meetings were held between the parties. During the scope of the review, the respondent noted numerous anomalies within the tax self-assessment returns submitted by the appellant.

Thereafter, on 1 June 2016, the respondent issued five amended tax assessments for the 2009 to 2013 tax years on all the disputed issues claiming an aggregate amount of US$4,905,776=34.

The appellant proceeded to note its objection to the amended income tax assessments in terms of section 62 of the Income Tax Act. The appellant's objections centred on prescription regarding the 2009 income tax year, written-off bad debts, disallowed excess capital, accrued expenses, management fees, and excess royalty payments on brands.

On 26 September 2016, the Commissioner determined the objections lodged by the appellant.

The Commissioner held, that, he was entitled to issue amended tax assessments with regards to the tax year 2009 as a result of the various misrepresentations arising from excess capital allowances, unrealised exchange losses, and bad debts that were deducted from the taxable income and were unsubstantiated.

In respect of the other years, the Commissioner largely disallowed the objections lodged by the appellant except excess royalty on grossed up payments due to adjustments on withholding tax which was paid late.

The respondent ruled, that, the fifty per centum penalty on unpaid principal tax would remain in force to deter non-compliance.

The appellant, dissatisfied with the determination by the Commissioner, appealed to the court a quo.

At the pre-hearing meeting, the parties settled ten issues to be determined by the court a quo. During the hearing, the appellant called evidence of two tax experts and produced two sets of documentary exhibits.

The respondent did not call oral evidence but relied on the pleadings filed of record.

The court a quo made the following findings in respect of the issues appealed against. It found that —

(i) The respondent was entitled to re-open the 2009 tax assessment, after six years, in terms of section 47(1)(ii) of the Income Tax Act in light of the misrepresentation by the appellant of its tax affairs in its tax returns;

(ii) The respondent correctly disallowed capital allowances for mark-ups on capital assets acquired by the appellant's related company exceeding the perimeter of the margins used by the appellant's Group as these were in excess of the unconditional legal obligation to pay the related company;

(iii) The appellant had failed to prove that the basis of the deductions on management fees were equivalent to the cost mark-up formula provided in the appellant's Management Services Agreement and that the respondent had correctly disallowed the deductions in respect of the management fees relating to the appellant's related company;

(iv) The appellant could not claim deductions in respect of brands as this expenditure was indivisible from expenditure in respect of intellectual property.

The appellant, aggrieved by the decision of the court a quo, noted an appeal to this Court against part of the judgment on the following grounds:

“1. The learned President erred as a matter of law in determining that the word 'misrepresentation' as used in proviso (ii) of section 47(1) of the Income Tax Act [Chapter 23:06] fell to be interpreted as any error made by the taxpayer in submitting a return, regardless of the state of mind of the taxpayer.

2. The learned President erred on the facts in finding that the appellant had misrepresented any facts to the respondent when it filed its self–assessment for the tax year ending 31 December 2009.

3.The learned President accordingly erred in finding that the respondent was entitled, as a matter of law, to issue an amended assessment in respect of the tax year ending 31 December 2009.

4. The learned President erred as a matter of law and fact in holding, that, the appellant was only entitled to a deduction, in terms of section 15 of the Income Tax Act, in respect of charges raised by and paid to a related party on the acquisition of capital goods on the basis of an unconditional legal obligation to pay rather than on the basis of expenditure actually incurred in the tax year in which the deduction was made, for the purpose of trade and producing income, and erred in imposing a ceiling of Swiss francs 8,000 on such expenditure.

5.The learned President erred in fact by rejecting the evidence of the appellant as to the amount it had actually expended in each of the tax years in question in respect of management fees, which, because of exchange control requirements, had been capped at 2% of its annual turnover, and which amount had actually been paid to its regional management service company in the Republic of Kenya, and was thus expenditure actually incurred for the purposes of its business and in the production of income, and, as such, deductible in terms of the legislation.

6.The learned President erred in fact and as a matter of law in holding, that, the appellant was not entitled to claim a deduction in terms of section 15 of the Income Tax Act in respect of expenses incurred on branding, and disregarded the fact that those expenses were actually incurred for the purposes of its trade or the production of income.

7.The learned President erred both as a matter of law and as a matter of fact in holding that tax was payable on expenditure incurred in respect of branding yet having agreed that the expenditure was deductible for corporate income tax, being indivisible from expenditure incurred in the use and application of other intellectual property rights.”

The appellant prays that the appeal be allowed and that an order for costs be made in its favour in terms of section 15(2)(bb) of the Income Tax Act [Chapter 23:06], and that paragraph 2 of the order of the Special Court for Income Tax Appeal be altered as follows:

(i) By the deletion from sub–paragraph (c) thereof of US$32,094=23 to the 2009 tax year;

(ii) By the deletion from sub–paragraph (d) thereof of US$303,379 to the 2009 tax year;

(iii) By the deletion therefrom of sub–paragraphs (e), (f), and (h);

(iv) By the insertion at the end of sub–paragraph (i) of the words 'other than the 2009 tax year'.

At the hearing of the appeal, counsel for the appellant, took two preliminary points which were not raised in the appellant's Heads of Arguments:

(i) His first point was that a quo the respondent did not lead any evidence.

It was only the appellant that led evidence.

He stated that this has consequences in that in the absence of evidence led by the taxman, the prima facie case led by the appellant coalesces into a conclusive case in its favour. For authority he relied on CIR v Middleman 1991 (1) SA 200 (C) and A & Anor v Commissioner of Taxes 2018 ZATC 10.

He submitted, that, in respect of issues relating to management fees, handling fees, and branding fees, it is only the taxpayer which established a case before the court a quo.

(ii) Counsel for the appellant's second point was that the assessments before the court a quo, for tax years 2010 to 2013, did not comply with the requirements of section 2 of the Income Tax Act.

He submitted, that, in effect, there were no assessments. For authority, he relied on Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H).

The assessment for the year 2009 would otherwise have been an assessment as contemplated in terms of section 2 of the Income Tax Act but negated its validity upon being made “subject to an audit”.

It was his submission, that, the position of the law is that if a taxman is adjusting an assessment, he cannot make that assessment subject to an audit because it is a correction of an assessment already accepted.

On the merits, counsel for the appellant contended, that, the purported revised assessments did not contain a statement stating the respondent's reasons for undertaking the re-assessment, which is contrary to the law.

He submitted that section 37A(13) of the Income Tax Act provides, that, if the Commissioner intends to re-visit an assessment he is required to include, with the re-assessment, a statement of reasons why he considers it necessary to make such an assessment. There were no such statements in respect of all the assessments in issue that were before the court a quo.

Where the taxman intends to re-visit a prescribed assessment, he must be satisfied that there has been fraud, wilful non-disclosure, or misrepresentation.

The existence of the fraud, wilful non-disclosure, or fraud must be communicated in the statement.

There is no such statement regarding the 2009 assessment. The factors that must be considered before a prescribed assessment can be re-assessed do not exist. For that reason, the 2009 assessment must be withdrawn.

Counsel for the appellant further submitted, that, misrepresentation, in terms of the Income Tax Act, must be construed with regard to the taxpayer's intentions or state of mind. He contended, that, any contrary interpretation voids the statutory immunity provided in section 47 of the Income Tax Act.

Regarding management fees, counsel for the appellant submitted, that, the taxman does not determine the necessity of expenditure or regulate how the taxpayer runs his affairs. He submitted, that, once expenditure has been incurred in the production of income, it is deductible. He also submitted, that, on branding fees, the appellant led evidence on payments made for technical assistance which was not rebutted.

Per contra, counsel for the respondent submitted, that, in terms of section 63 of the Income Tax Act, the onus to prove that one is not liable to tax lies with the taxpayer.

Counsel submitted, that, detailed assessments were provided on p98 of the record which negated the preliminary points raised by the appellant.

On the merits, counsel for the respondent submitted, that, misrepresentation ought to be construed on an objective basis that does not delve into the intentions of the taxpayer. He also submitted, that, the respondent failed to show how the management fees were expended in the production of income. In respect of branding fees, he submitted that intellectual property expenditure could not be separated from branding. Hence, the court a quo was justified in disallowing the deduction.

On the need for a statement in terms of section 37A(13) of the Income Tax Act, counsel for the respondent submitted the statements were provided to the appellant, although they do not appear in the record.

This is explained by the fact, that, the appellant did not raise these issues in its objection and in the court a quo.

There was, however, an extensive exchange of documents between the parties in respect of the tax period between 2009 and 2013. There is a document on p123 of the record that reflects that the appellant was aware that the assessment of 2009 is being re-opened as it is the only year affected by prescription.

1. Whether the assessments that were before the court a quo complied with the provisions of section 2 of the Income Tax Act?

2. What is the effect of failure by the respondent to lead evidence before the court a quo?

3. Whether or not the court a quo erred in its interpretation of 'misrepresentation' and finding that the respondent had a legal basis to issue an amended assessment in respect of the tax year 2009?

4. Whether or not the appellant was entitled to a capital expenditure allowance in respect of handling fees paid in the acquisition of capital assets?

5. Whether or not the appellant was entitled to a deduction based on management fees?

6.Whether or not the appellant could claim deductions for branding costs as expenditure distinct from that incurred in the use and application of other intellectual property rights in the production of income?

I will start by dealing with the points in limine raised by counsel for the appellant before delving into the merits of the appeal. In doing so, I will deal with the second point in limine first as it might dispose of the appeal.

Counsel for the appellant's second point in limine was that there were no assessments a quo as is defined in section 2 of the Income Tax Act and as laid down in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H).

He submitted, that, the assessment for the year 2009 could have passed as an assessment were it not for the remark that 'the assessment is subject to an audit'. This also applies to the assessments for the year 2010 and 2011. They negate their validity by the endorsement 'subject to an audit.'

In respect of the years 2012 and 2013, the purported assessments do not meet the requirements of section 2 of the Income Tax Act at all. Those kind of documents are not known in law.

He further contended, that, our tax system is based on self-assessment. If the taxman accepts the self-assessment in terms of section 37A of the Income Tax Act, it becomes his assessment. If he raises queries or adjusts that assessment, what he then issues is a final assessment. It cannot be an estimate or subject to an audit. The assessments in issue are therefore invalid on that basis.

Counsel for the respondent started by pointing out that the issues being raised by counsel for the appellant were being raised for the first time in this court. They were not raised in the objection to the Commissioner neither were they raised in the court a quo.

He however submitted, that, for a taxpayer to object in terms of section 62 of the Income Tax Act and to appeal in terms of section 65 of the Income Tax Act, there would have to be an assessment. Where there is no assessment, there can be no valid objection or appeal.

If the appellant felt that there were no valid assessments, it should have approached the High Court seeking a declaratur to that effect.

On being engaged by the court in respect of the purported assessments for 2012 and 2013, he conceded that the documents do not meet the requirements of section 2 of the Income Tax Act.

He, however, sought to explain that there is an endorsement that “a detailed assessment can be made available on request'. He then directed the court to p98 for the detailed statement of the taxable income, deductions, and the tax payable.

On being further engaged on what the import of the term “this assessment is subject to audit” was, he submitted that it meant that the assessment was as a result of an audit that was done and not that it is going to be the subject of a further audit.

I must observe that the points raised by counsel for the appellant were points of law which can be raised at any time. It is trite and requires no authority that a point of law can be raised at any time provided that there is no prejudice to the other party. Counsel for the respondent did not seriously contest the point. He also did not argue that the respondent would be prejudiced in any way.

As was stated in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H), an assessment must contain the taxable income and the credits to which a person is entitled or the determination of an assessed loss ranking for deduction.

Going by the above definition, the purported assessments for the years 2012 and 2013 fall far short of being assessments as defined in section 2 of the Income Tax Act. The document on p98 titled 'Income Tax Computation' did not, and could not, save the respondent. It is a detailed assessment covering the period 2009 to 2013.

There is no provision in the Income Tax Act for such an omnibus assessment.

Counsel for the respondent conceded the point in respect of the assessments for the years 2012 and 2013.

The concession is properly made.

The assessments for the years 2009, 2010 and 2011 would have met the requirements of the Income Tax Act were it not for the endorsement that they were subject to an audit.

Counsel for the respondent struggled when asked to explain the import of the endorsement “subject to audit.”

Counsel for the appellant's point, which I agree with, is that when the respondent issues an assessment, after having considered a taxman's self-assessment, that resultant assessment is final. It cannot be subject to an audit.

There is no provision for such an assessment in terms of section 2 of the Income Tax Act.

The only endorsements permitted on an assessment are found in section 51 of the Income Tax Act, such as notice of the period within which to file an objection.

The rationale for the Commissioner to comply with the Income Tax Act, regarding assessments, was given in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H)…, as follows:

“It is imperative that an assessment contains the requirements of the Act, as the administrative functions bestowed by the Act on the Commissioner amount to a determination which is executable through a garnishee. He is also bestowed with the power to hear any objections, in terms of the assessment made, after which he can insist on payment of the tax pending the determination of any dispute arising from an assessment. The legislature could only have envisaged granting the Commissioner power to execute pending determination in circumstances where the taxpayer has been clearly advised of the basis for the assessment.

In addition, section 51 requires the taxpayer to be given due notice of the assessment and the tax payable in the manner stipulated in that section. There should be no doubt as to whether the document sent by the Commissioner to a tax payer is an assessment in view of the taxpayer's right to object within 30 days.

Annexure A is not headed 'Notice of Assessment' nor 'Assessment' and does not give 30 days notice for objection as is required by the Act. Further, the document cannot be said to constitute an assessment as it falls short of the definition of assessment in terms of section 2 of the Act.

In the process of serving the taxpayer with an assessment and hearing objection, the Commissioner should comply with the provisions of the Act as his administrative acts have far reaching consequences of a garnishee on the taxpayer.”

Although the above remarks were made in a case where the Commissioner had issued a garnishee order to a disputed assessment, they apply with equal force in casu.

There should never be any doubt as to whether what the Commissioner would have issued is an assessment or not, as any default by the taxpayer can be met with the administrative powers bestowed on the Commissioner in the Income Tax Act.

In view of the above, the assessments are null and void as they were issued contrary to the requirements of the Income Tax Act. They were a nullity and cannot create any obligation to pay tax.

What this means is that there were no proper assessments for the court a quo to relate to. Consequently, there is no proper appeal before this court.

Counsel for the appellant's second point in limine has merit and is upheld.

Having made the above findings, it will not be necessary for me to deal with the first point in limine raised by counsel for the appellant and the merits of the matter.

This is an appropriate case to invoke the provisions of section 25(2) of the Supreme Court Act [Chapter 7:13] to set aside the proceedings of the court a quo as they are irregular. Costs will follow the cause.

Accordingly, I will make the following order:

1. In terms of the powers set out in section 25(2) of the Supreme Court Act, the proceedings of the court a quo, in ITC 9/2016, be and are hereby set aside.

2. The respondent is to pay the appellant's costs in terms of section 15(2)(bb) of the Income Tax Act [Chapter 23:06].

This is an appeal against a decision of the Administrative Court of Zimbabwe handed down on 8 March 2019 upholding two consolidated appeals by the first to the fourth respondents (The Cosmo Trust, Babra Vitoria, Margaret Soper and Linda Bromley) challenging the issuance of an environmental impact assessment certificate by the sixth respondent (Environmental Management Agency) and a development permit issued consequent thereto by the City of Harare.

The City of Harare, the fifth respondent herein, has also filed a cross-appeal against the same judgment of the Administrative Court.

The gravamen of the grievance before the court a quo was that the issuance of the environmental impact assessment certificate and development permit violated various procedural requisites as well as Environmental Law.

After due consideration of all the papers filed of record, and submissions made by counsel on behalf of the parties, I am not persuaded that, save for the decision of the court a quo to relate to the merits of the dispute inter se, the court a quo was wrong in upholding the appeal.

In the circumstances, subject to that rider, both appeals stand to be dismissed with costs.

The first appellant, Sharadkumar Patel, is a director of Meadows (Pvt) Ltd, a company incorporated in accordance with the laws of this country.

It was to him that the development permit for the Meadows of Monavale was granted.

The company, Meadows (Pvt) Ltd, owns a piece of property called The Meadows of Monavale Extension of Mabelreign. It was in respect of that piece of land that the development permit was granted by the City of Harare.

The first respondent, The Cosmo Trust, is a duly registered trust whose powers and objectives include the protection of the environment and natural resources of Monavale in the general interest of its residents.

The second to the fourth respondents occupy separate pieces of land along Fennela Drive that are contiguous to the Meadows of Monavale.

The fifth respondent, the City of Harare, is a local authority which issued the development permit for the construction of residential units on the Meadows of Monavale.

The sixth respondent, the Environmental Management Agency, is a statutory body established in terms of the Environmental Management Act [Chapter 20:27].

The seventh respondent is the Minister of Environment, Tourism and Hospitality Industry (“the Minister”), under whose aegis the sixth respondent falls.

It was also the Minister who dismissed the first to the fourth respondents appeal against the issuance of an environmental impact assessment certificate issued by the sixth respondent, which decision is partly the subject of the present appeal.

The piece of land that lies at the centre of the dispute between the parties, namely, the Meadows of Monavale Extension of Mabelreign, was transferred into the second appellant's name (Meadows (Pvt) Ltd) in June 1987.

It is 16,2885 hectares in extent and borders Fennella Drive and Monavale Road in Monavale.

The property has remained largely undeveloped over the years, although the record shows that the first appellant has a residence on a portion of that property. It is part of a much bigger piece of land known as the Meadows of Monavale which is five hundred and seven (507) hectares in extent and is a wetland known as the Monavale Wetland.

That wetland forms the headwaters of the Marimba River and its tributary, the Avondale stream, and is part of a network of wetlands within the City of Harare, providing a wide diversity of beneficial ecosystems to the city. It is an important component of Harare's water system, through water accumulation from direct rainfall, runoff and groundwater influx; flood flow attenuation, and slow release of water to base flow in streams; groundwater recharge; protection against flooding and the impact of storms; trapping excess sediment from runoff, reducing siltation of dams; and improvement of water quality for household supply through filtration.

Following a proposal by the first respondent and an organisation called Birdlife Zimbabwe, surveys were carried out resulting in the appellants obtaining authority, from the Surveyor-General, for the Meadows of Monavale Extension of Mabelreign to be subdivided into two plots; the first being a 9,35 hectare plot on the northern side of the property which was to be known as Stand 201 and which was to be sold to Birdlife Zimbabwe and the remainder, a six hectare plot, to be retained by the appellants. The subdivision permit subsequently lapsed and the sub-division was never effectuated.

Zimbabwe acceded to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat known as the Ramsar Convention on 3 January 2013.

Upon accession, the country nominated seven sites, including Monavale Wetland, to be included in country's Ramsar list of Wetlands of International Importance. The other sites were Cleveland Dam, Chinhoyi Caves, Driefontein Grasslands, Victoria Falls National Park, Mana Pools and Lake Chivero.

In 2014, the appellants submitted an application for an environmental impact assessment certificate for a housing development on the land.

On 9 July 2014, the Director-General of the Environmental Management Agency dismissed the application on the basis that the land was not suitable for such a development as it was situated in an ecologically sensitive area and ecosystem in need of protection under the Ramsar Convention. The appellants were advised to adopt an alternative land use that would ensure that the area was maintained and protected.

That decision was not thereafter challenged.

In 2015, the appellants submitted an application for a development permit with the City of Harare (“The City Council”). Despite objections, a development permit was issued. The first respondent lodged an appeal against the development permit in the Administrative Court. The permit was set aside, in November 2016, on the basis that the appellants had not, before applying for the permit, secured an environmental impact assessment certificate.

That judgment remains extant although there was an attempt to appeal against it, which was abandoned.

Pursuant to the decision of the Administrative Court, the appellants submitted another application for an environmental impact assessment certificate to the Environmental Management Agency.

The application was made in respect of Stand 201, Monavale.

No stakeholder consultation was conducted with interested parties, notwithstanding the peremptory provisions of section 136 of the Environmental Management Act [Chapter 20:27] (“the EMA”).

An environmental impact assessment certificate was then issued by the agency on 10 November 2017.

The certificate stated, that, it had been granted in respect of a housing development on Stand 201 Monavale (6804), subject to eight conditions highlighted in an annexure to that certificate.

Armed with the environment impact assessment certificate, the appellants wrote to the City Council requesting the Council to re-issue the development permit previously granted in November 2015. The request was treated, by Council, as a new application for a development permit.

The first respondent then appealed to the Minister against the decision by the agency to issue the certificate.

In the appeal, the first respondent raised a number of complaints; that there was no Stand known as 201 Monavale and that interested persons had not been given the opportunity to make representations in the matter; that the developer had failed to carry out wide consultations with stakeholders before approaching the agency; that, notwithstanding its clear interest in the matter, it had not been notified of the issuance of the certificate; that the decision to grant the certificate violated its environmental rights and those of its members; and that the decision breached the country's international obligations under the Ramsar Convention. Further, that the certificate had not been issued by the agency's Director-General.

In a response penned by the Ministry's Permanent Secretary, the appeal was dismissed on various bases.

That, whilst the agency was not in a position to confirm whether or not Stand 201 existed, the Director General of the Environmental Management Agency could properly delegate the authority to issue the certificate to a junior; that, the documents submitted reflected that there had been public consultation on the part of the developer and that reservations had been taken into account.

Whilst accepting that the agency may have erred in failing to notify interested persons of the issuance of the certificate, he stated that no injustice had been occasioned by such failure; that, whilst the objectors had rights, the appellants also had rights to their property, subject only to the need for any development on the property to take into account the need for the wise use of the land.

Unhappy with that decision, the first respondent noted an appeal to the Administrative Court in June 2018.

In the meantime, the appellants had submitted an application for a development permit with the City Council in May 2018.

On receipt of notification of the application, the first to fourth respondents, individually and separately, filed letters of objection. The Council's Director of Works then advised the appellants of these objections. The appellants responded to those objections and attached supporting documentation, including an environmental impact assessment report prepared at their instance in respect of Stand 201.

The Director of Works did not cause the response to be forwarded to the respondents.

Instead, he compiled a report recommending that the City Council's Environmental Management Committee, a sub-committee of Council, issue a development permit as requested.

The land on which the one hundred and twenty one cluster houses were to be developed was reflected as “Meadows of Monavale Township.”

The Director also suggested a number of conditions, including, ironically, the need to obtain an environmental impact assessment certificate - which had already been issued by the sixth respondent (the Environmental Management Agency).

On 23 July 2018, the City Council's Environmental Management Committee held a meeting to consider a total of fourteen matters, including the building permit application submitted by the appellants. The meeting commenced at 2:10pm and ended at 2:50pm. It recommended the granting of a development permit authorising the appellants to erect one hundred and twenty one cluster houses, subject to the conditions stipulated in the report compiled by the Director of Works.

In September 2018, the first to fourth respondents then filed an appeal with the Administrative Court against the issuance of the development permit.

By agreement between the parties, the two appeals were consolidated for purposes of the filing of the heads of argument and hearing.

In their grounds of appeal and submissions in respect of the development permit issued by the City Council, the first to fourth respondents attacked the decision to issue the permit on a number of bases:

(i) First, that the Environmental Management Committee of the Council is not a local planning authority, and, consequently, had no power to issue a development permit.

(ii) Second, that no proper application for a development permit had been filed with the Council.

(iii) Third, that the permit had been issued in the absence of a valid environmental impact assessment certificate, since the permit imposed, as one of the conditions for the grant of the permit, the need to secure an environmental impact assessment certificate.

(iv) Fourth, that the proceedings of the committee were tantamount to a kangaroo court as the committee had not adverted to the merits of the matter, and, in particular, the fact that this was a protected wetland, before resolving to grant the permit.

(v) Fifth, that the committee had resolved to grant the permit without affording the respondents the right to be heard. They submitted, that, the development permit had been improperly issued and that it should, as a consequence, be set aside.

In respect of the environmental impact assessment certificate, the respondents submitted as follows:

1. First, that there had been no public participation and the audi alteram partem rule had not been observed.

2. Second, that the certificate was void for vagueness as it did not identify the project, contrary to section 100(5) of the Environmental Management Act.

3. Third, that the certificate had been issued in respect of Stand 201, which did not exist, rendering the certificate void for vagueness; and

4. Fourth, that there had been a failure, on the part of the Minister and the Environmental Management Agency, to appreciate that environmental rights take precedence over private rights to land.

In its heads of argument filed in the Administrative Court, the City Council submitted as follows:

(i) First, that the mere failure to comply with one or other administrative provision does not necessarily result in a nullity. It depends on whether the statute envisages that the failure should result in a nullity. It also depends on its materiality.

(ii) Second, that a proper application for a development permit had been filed.

(iii) Third, the first to fourth respondents objections had been considered in the Director of Works report, and, therefore, the audi alteram partem principle had not been violated.

(iv) Fourth, that the Ramsar Convention had neither been approved by Parliament nor had it been incorporated into domestic legislation. Therefore, it was not binding on Zimbabwe.

(v) Fifth, that the social rights claimed by the respondents had to be reviewed against the appellants competing right to develop a property that belonged to them.

(vi) Sixth, that the environmental management committee exercised a power vested in it by Council itself.

In their heads of argument, dealing with both appeals, the appellants in this matter submitted as follows:

(a) The decision made by the environmental management committee of the City Council was a decision of the Council itself, as a local town planning authority.

(b) Second, that there was a proper application before the Council which cannot be impugned on the basis, that, having been made by a committee of Council, it had not been made by Council itself.

(c) Third, that the committee was not bound to formally hear the first to the fourth respondents as it was sufficient for written objections to be considered.

(d) Fourth, that the decision of the Administrative Court, holding that the environmental impact assessment certificate had to precede the issuance of a development permit, was wrong.

(e) Fifth, that the Ramsar Convention itself does not prohibit development on a wetland, but, instead, encourages the wise-use of such land.

In its determination, the court a quo found as common cause, that, the property belonging to the appellants is part of a wetland and that the piece of land on which the appellants intended to erect one hundred and twenty-one cluster homes was virgin and undeveloped. It found that the development was intended to take place on the unregistered Stand 201 measuring 9.35 hectares which the appellants had unsuccessfully attempted to shear off from the main Meadows of Monavale Extension.

It found, further, that, the omission to particularise that portion of the land on which the development was to take place was a serious error which should not have been condoned by Council.

The court further found, that, the failure to attach the signed consent of NMB Bank, which had a mortgage bond registered over the property, was a fatal irregularity.

In doing so, the court took into account the provisions of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the RTCP Act”) which provides, that, an application for a permit shall be accompanied by the consent, in writing, of the holder of any real right registered over the property.

The appellants, not having justified why the application had not been accompanied by the consent in writing of NMB Bank, the court found that the defect rendered the application invalid.

Further, the court found that the development permit related to the larger undivided piece of land owned by the appellants. The environmental impact assessment certificate, to the contrary, related to the unregistered Stand 201 measuring 9.35 hectares.

It therefore found, that, the development permit, which related to the entire 16,2885 hectares, could not be predicated on an environmental impact assessment certificate issued in respect of 9.35 hectares of land. Moreover, the development permit made it clear that it had been issued to enable the erection of one hundred and twenty-one cluster houses.

The environmental impact assessment certificate, on the other hand, stated that it had been granted to the appellants to enable a housing development to take place on Stand 201 Monavale. The court found, that, it was impossible to ascertain the nature of the developments proposed by those two sets of documents.

As regards the application for a development permit filed by the appellants on 15 May 2018, the court a quo found that it relied on documentation annexed to an earlier application submitted in 2015.

It concluded, that, since an application that is not determined within three months is deemed to have been refused in terms of section 26(7) of the Regional, Town Country Planning Act, those documents could not have been relied upon in the application submitted on 15 May 2018.

The court accordingly found, that, the application for the development permit was defective in that respect and that it should not have been processed by the City Council. By necessary implication, it further found that the development permit issued pursuant to that application was also a nullity.

On the objections filed by the first to fourth respondents, the court noted, that, although four letters of objection had been forwarded to the City Council, the Director of Works had referred to only two objections in his write-up to Council. He did not indicate which two of the objections had been considered.

The court also found, that, the City Council had unlawfully shifted the onus of proof to the first to fourth respondents when it determined that their objections were not supported by evidence.

As regards the contention that Council had failed to properly address the implications of granting a development permit on an internationally-protected wetland, the court determined, that, whilst the appellants have the right to deal with the property in a manner they may choose, that right was attenuated by section 86 of the Constitution 2013, which provides that the enjoyment of rights and freedoms must be exercised reasonably and with due regard to the rights and freedoms of others.

It found, that, there was good reason for the view, that, the core of the wetland be left wild, untouched, and suitable for the diverse range of migrant birds, including some that are endangered species that come all the way from countries as far afield as Cameroon, Congo, and Kenya.

The court found, that, the construction of cluster houses would involve digging up foundations, clearing land, and erection of houses.

In these circumstances, so the court concluded, there was need to rely on the precautionary principle which is applicable where, due to unavailable scientific knowledge, there is uncertainty as to the future impact of the proposed development.

On the environmental impact assessment certificate, the court reiterated its earlier finding, that, this had been issued in respect of Stand 201, which does not exist. The certificate was issued in respect of the whole property measuring 16,2338 hectares. The first to fourth respondents had not been consulted during the preparation of the report which preceded the issuance of the certificate.

Consequently, the court also upheld the appeal against the grant of the certificate.

In the result, having upheld both appeals, the court ordered that the appellants, the City Council, and the Minister pay the costs of suit on the ordinary scale.

It is against that order that the two appeals were noted to this Court by the appellants and the City Council.

In their notice of appeal, the appellants relied on a number of grounds. I reproduce these hereunder:

“1. The Administrative Court fundamentally erred in failing to find that the first respondent, being a Trust, did not have legal capacity to have mounted the appeals that it mounted in the Administrative Court.

2. The Administrative Court further grossly erred in interfering with the discretion of the 5th respondent in condoning the reference to an undivided portion of the Meadows of Monavale, known as Stand 201 of Monavale, when such condonation had been done in the exercise of the administrative discretion by the 5th respondent.

3. The Administrative Court further erred in finding, that, the application for a development permit submitted to the 5th respondent was defective in that it had been accompanied by documents from a previous application when such attachments did not have the effect of invalidating the application.

4. The Administrative Court grossly erred in finding, that, the appellants failure to attach to their application for a development permit, submitted to the 5th respondent, the consent of NMB Bank was fatal to such application when there was no evidence that the said Bank had an interest in the land and was not argued by the parties.

5. The Administrative Court further erred in finding, that, the 5th respondent had violated the audi alteram partem rule and had therefore not properly considered the objectives of the 1st up to 4th respondents objectives to the development permit.

6. The Administrative Court further erred in its application of the concept of restrictive measures in section 86(2)(f) of the Constitution of Zimbabwe and finding, therefore, that the appellants could not carry out the development on the property in issue as part of the exercise of the right of ownership enshrined in section 71(2) of the Constitution of Zimbabwe.

7. The Administrative Court further erred in relying upon the precautionary principle in prohibiting the development proposed on the piece of land in issue by the appellants.

8. The Administrative Court grossly erred in finding, that, the environmental impact assessment certificate issued by the 6th respondent was void for vagueness when it related to an identifiable property and the correction of the certificate had been placed before the Court.”

The City of Harare, as appellant, also attacked the determination of the court a quo on a number of grounds which I quote verbatim hereunder:

“1. The court a quo erred in finding that the application for a development permit was defective in that it was accompanied by documents from a previous application when such deficiency, if any, did not have the effect of invalidating the permit.

2. The court a quo erred in finding that appellant had violated the audi alteram partem rule by failing to properly consider the objectives when there was clear evidence throughout the record of a consideration of the objections.

3. The court a quo erred in stopping a development on the bases of unproven likelihood of harm to the environment.

4. The Administrative Court erred by failing to arrive at the conclusion, that, the permitted development was consistent with the 'wise use' concept contained in the provisions of the Constitution, the Environmental Management Act, and the Ramsar Convention on the protection of the environment.

5. The court a quo erred in allowing immaterial and irrelevant objections to the permit and the Environmental Impact Assessment Certificate to guide it. It so erred to appreciate that this was a town planning matter and one to be dealt with in the wide sense.

6. At any rate, the court a quo erred in failing to consider that any deviation from the provision of the Regional, Town and Country Planning Act and the Environmental Management Act was not material enough to warrant nullification of the permit. It so erred in that it failed to consider the materiality principle.”

In their submissions, the appellants submitted as follows:

The first respondent, being a Trust, cannot sue or be sued in its name, but, rather, in the name of the trustees.

The appeal instituted by the Trust against the grant of the Environmental Impact Assessment Certificate was therefore invalid.

Although the High Court Rules 1971 define association to include a Trust, and further allow any such association the locus standi to sue or be sued in its own name, the Rules do not apply to the Administrative Court.

The Administrative Court (Miscellaneous Appeals) Rules 1980 SI 122/1980, do not have a provision similar to the High Court Rules. The first respondent (the Trust) should not, therefore, have been a party to the proceedings before the court a quo.

Further, the appellants submitted that the City Council, being a town planning authority, could quite competently delegate its functions to a committee of Council in terms of section 12(3) of the Regional, Town and Country Planning Act.

They also submitted, that, the Environmental Management Committee of the City Council was entitled to condone mis-references in the papers that were placed before it.

The complaint by the first to fourth respondents, on the incorrect description of the property, was therefore not a fundamental defect that warranted interference by the court a quo, especially because the court had accepted that the development was to take place on the appellants property measuring 16,2885 hectares. There was no requirement that the appellants identify the specific portion of that land where the development was to take place, particularly in view of the fact that the subdivision previously applied for had lapsed. The error was not serious and the objectors had been able to lodge their objections.

As regards the finding by the court a quo, that the application was invalid on account of the fact that documents from a previous application (that had lapsed) had been attached, the appellants submitted that these were supporting documents and constituted “such information as may be prescribed” as provided for in the Regional, Town, Country Planning Act. The fact that an application is deemed dismissed, in terms of section 26(7) of that Act does not mean documents from that application cannot be attached or used in a subsequent application.

On the finding by the court a quo, that, the failure to attach the consent of the NMB Bank was fatal, the appellants submitted that the issue had only been very vaguely referred to and that it had been assumed that it had been abandoned.

The parties had not addressed the court on this issue.

Moreover, being a question of fact, the four respondents had not shown whether the bonds in issue were still current.

It was therefore an irregularity for the court to make a finding on an issue of fact not traversed by the parties and which was not founded in the pleadings by the parties.

As regards the finding that the audi alteram partem principle had been violated, the appellants submitted that the four respondents objections contained in letters they had sent to the City Council had been considered before the City Council came up with a decision on the application for a developmental permit. Indeed, the objections were brought to the attention of the appellants who responded to each of the issues raised in the objections.

On the finding by the court a quo, that, the appellants could have adopted less restrictive measures in the usage of their land, they submitted that they were under no such obligation to sell the property to an organisation called Birdlife Zimbabwe. They have the right, in terms of section 72 of the Constitution, to deal with the property as they see fit.

On the further finding by the court a quo, that the precautionary principle applied in this case, they submitted that the appellants had obtained an environmental impact assessment certificate and had, in addition, undertaken a detailed impact assessment which was placed before the Council to enable it to come to a correct decision.

That document set out the measures which were to be taken to minimise any possible damage to the environment.

The fact that the property is situated on a wetland does not mean it cannot be developed. Indeed, in terms of the Ramsar Convention, it is the wise use of wetlands that is encouraged.

In any event, the property had been removed from the list of sites that fell under that Convention.

As regards the environmental impact assessment certificate, they submitted that the certificate had been issued in respect of a cluster development on a Stand identified as being a portion of the Meadows of Monavale. Having acknowledged the existence of the property measuring 16,2338 hectares upon which an intended subdivision, to be called Stand 201, was to be created, the court a quo could not then, at the same time, find that the certificate related to a non-existent property.

In his oral address, counsel made the following further submissions:

That, the issue of the locus standi of the first respondent had been raised during oral submissions but was not dealt with by the court a quo.

The four respondents cannot come to court saying they do not know where the development was to take place when they were involved in the attempt to purchase Stand 201. Everyone knew where the cluster houses were to be constructed, and, the fact that it was not formally subdivided made no difference.

As regards the issue of consent by NMB Bank, he submitted that the issue was neither raised nor argued before the court a quo.

On the documents from a previous application that were attached to the application for a development permit, he submitted that the judge failed to distinguish between the application itself and the supporting documents. There was no need to file the same documents over and over again.

As regards the letters of objection to the development permit application, he submitted that all the letters raised the same issues and were similarly worded.

On the merits of the dispute, he submitted that the court a quo did not address itself to the fact that Harare has a housing backlog.

There was nothing to suggest, that, if construction took place on an area constituting 1.5% of the Monavale vlei, comprising less than ten hectares, it would have the kind of harmful impact that the respondents have attempted to portray.

The court a quo was selective and made no attempt to strike a balance between the need to protect the environment, on the one hand, and the need to provide accommodation on the other.

In their heads of arguments, the first to the fourth respondents have submitted that the Ramsar Convention is binding on Zimbabwe, the country having acceded to the Convention and such accession having been ratified by Parliament.

The suggestion that the wetland may have been delisted is incorrect as the Government of Zimbabwe, in order to do so, would have to go through the process of delisting in line with the Convention. That process has not even been initiated, and the country continues to have obligations under the Convention.

In its decisive meeting to consider whether or not to grant the development permit, no consideration was given by the City Council to the ecological status of the land on which the proposed development was to take place, notwithstanding the fact, that, in their objections, the respondents had gone to great lengths to highlight the dire situation faced by residents in accessing water.

The issue before the City Council was of a highly technical nature, and, therefore, required specificity in terms of the size and location of the land to be developed and the exact number of houses to be constructed. This would have assisted the committee to properly assess the possible harm to the environment.

As regards the need to attach the written consent of NMB Bank, they submitted that the issue had been fully ventilated in their statement of appeal before the court a quo as well as their heads of argument. Moreover, evidence had been placed before the court to confirm that there were current bonds registered over the property.

There was need for the appellants to attach the consent of the Bank because its rights could be prejudiced. Having failed to attach such consent, the appellants further failed to show that any attempts had been made to advise the Bank as required by the law.

On the objections that they had raised in respect of the development permit, they submitted that the letters raised different issues. The chairperson of the first respondent objected on the basis that this was an ecologically sensitive and biologically diverse area which should not be tampered with. The Sopers, on the other hand, objected on the basis that there had been no prior consultation with the residents who were likely to be affected.

Moreover, the City Council, having received a response from the appellants, including a report on soil tests done at their instance, made no attempt to bring the response and new facts to the attention of the respondents.

In oral submissions before this Court, they disputed the suggestion that the first respondent, being a Trust, has no locus standi to institute proceedings against anyone.

The Administrative Court Act [Chapter 7:01], in section 13, provides that where there is a lacuna, the procedure applicable in the High Court would apply.

The High Court Rules allow, in Rule 7 and 8, a Trust to sue.

They further submitted, that, whilst the development permit refers to the entire piece of land and not Stand 201, no environmental impact assessment certificate was issued for the entire property, but, rather for Stand 201.

Counsel for the respondents further submitted, that, once the land was included as part of a Ramsar site, the appellants, as owners, lost the right to do as they pleased.

He also submitted, that, the environmental management committee of the City Council could not have properly considered fourteen applications, including the appellants development permit application, in forty minutes.

Despite the land being part of a wetland, they make no reference to this, and, all they did was recommended that the permit be granted.

Accordingly, the respondents prayed for the dismissal of both appeals with costs.

The fifth respondent's submissions mirrored its previous submissions before the court a quo. In addition, it also submitted, that, the issue of consent of the Bank had not been raised in the court a quo.

Further, that, although the minutes of the Council meeting refer to only two objections, the objectors concerns had been taken into account.

Lastly, it was submitted that the mere failure to comply with one or other administrative provision does not mean that the whole procedure necessarily becomes void. The absence of the consent of the Bank was therefore not fatal.

On a consideration of the above submissions, it seems to me that the issues that arise for determination fall into four broad categories:

(i) The first is whether the first respondent, a Trust, can, in law, sue or be sued?

(ii) The second is whether the Environmental Impact Assessment Certificate, on which the City Council largely relied in coming to the decision to grant a Development Permit, is valid?

(iii) The third is whether the Council was correct in granting the Development Permit?

Depending on the determination of this Court on the above issues, the last issue that may arise is:

(iv) Whether the court a quo was correct in relying on the precautionary principle in coming to the conclusion, that, the land in question could not be developed without endangering its status as a wetland?

As noted earlier in this judgment, a development permit issued in favour of the appellants, in 2015, was set aside by the court a quo on the sole basis that the appellants should have first sought an environmental impact assessment certificate before submitting an application for a development permit with the City Council.

The appellants then submitted a new application, and such certificate was then issued in November 2017.

It was on the basis of that certificate that the appellants then applied for a development permit to the City Council in 2018.

Perusal of the certificate reflects, that, the Environmental Management Agency granted “acceptance” to the appellants to operate a housing development on Stand 201 Monavale (6804). Attached to the certificate were special conditions attaching to the issuance of the certificate.

Whilst the conditions were intended to mitigate against adverse impact on the wetland, as Dr Cunliffe later reported, in his report dated 13 September 2018, little or no guidance was given on how the conditions were to be implemented.

The suggestion that a 50 metre buffer zone be managed in an “environmentally sustainable manner” was not defined. Nor were details given as to the design and operating parameters of the sub-surface flow constructed wetland. The same applied to the retention ponds. No detail was given as to how many such ponds were to be constructed, where they were to be located, their dimensions, and volume of water to be stored.

The certificate also required the construction of special foundations for the houses, but gave no indication how such foundations were to be constructed. There was also no indication as to who was to be responsible for monitoring and overseeing compliance with the conditions. More particularly, the certificate did not indicate who was to manage the buffer zone, monitor and enforce the prohibition against sinking of boreholes, and monitor the functioning of the proposed subsurface flow constructed wetland.

There can be little doubt that the certificate was very vague in several important respects and that it authorised “a housing development” whatever that meant – on Stand 201 which, it is common cause, never saw the light of day.

It is also clear, that, whilst the parties had been involved in litigation in respect of this piece of land in the past, before the appellants sought an environmental impact assessment certificate in 2017 there had been no stakeholder consultation.

This violated section 136 of the Environmental Management Act.

That section provides that the Environmental Management Agency, amongst other requirements, shall ensure that the rules of natural justice are duly observed, and, in particular, shall take all reasonable steps to ensure that every person whose interests are likely to be affected by the exercise of the function is given adequate opportunity to make representations in the matter.

Further, section 26 of the Regional, Town and Country Planning Act provides that an application for a permit shall be made to a local planning authority and shall be accompanied by the consent in writing of:

(a) The owner of the land; and

(b) Where the application relates to development which involves an alteration —

(i) In the character of the use of any land or building; or

(ii) In the conditions of title to the property;
the holder of any real right registered over the property concerned:

Provided that the local planning authority may dispense with any consent required in terms of this subsection if it is satisfied that —

(a) The applicant has made all reasonable attempts to ascertain the address of the person whose consent is required and has been unable to do so; or

(b) The person whose consent is required has unreasonably failed or refused to give his consent and that the permit, if granted, would not prejudice the rights of such person.”

That the appellant did not attach the consent of NMB Bank, the mortgage holder, is common cause.

It is also common cause, that, the City Council was not requested, at any stage, to dispense with the consent required in terms of paragraph (b) to the proviso. Nor did the appellants themselves attempt to show that they had made reasonable attempts to ascertain the address of NMB or that NMB had unreasonably failed to give its consent and that it would not be prejudiced by the grant of the permit.

Instead, the appellants and the City Council's argument before this Court is that the issue was not raised or argued before the court a quo, and that, in any event, the failure to comply with section 26 of the Regional, Town and Country Planning Act is not fatal to the application.

Although the record before this Court does not contain the verbatim record of the proceedings on the day of the hearing, the record shows that the issue of the consent of NMB Bank was a live issue before the court.

A Deeds Office search form, which forms part of the record, shows that, as at 16 January 2018 i.e. about four months before the appellants submitted their application for a development permit, three mortgage bonds had been registered against the Meadows of Monavale Extension of Mabelreign measuring 16,2885 hectares by NMB Bank Ltd. The mortgage bonds had been registered against the property in March and September 2013 to secure a total amount of almost US$246,000.

The failure by the appellants to comply with section 26 of the Regional, Town and Country Planning Act was raised on at least two occasions before the court a quo.

One of the grounds of appeal to the Administrative Court, against the grant of the development permit by the first to fourth respondents, was that the City Council had failed to find that the application was defective for failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act in that it omitted to include, inter alia “the person holding mortgage bonds over the property.”

The same complaint was made in the respondents heads of argument that “the application does not include the signed consent of NMB Bank whom, according to a search at the Deeds Office, filed in the appellants bundle as Item 39, are persons holding mortgage bonds over the property, contrary to section 26(1)(b) of the Regional, Town and Country Planning Act.”

Contrary to submissions by counsel for the appellants and the City Council, it is clear, therefore, that the issue was very much a live one and was an issue that the court was under obligation to determine.

Its determination was that the failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act was fatal, rendering the application defective.

The further argument by the appellants is that the failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act does not invalidate the application and the permit issued consequent thereto.

On a correct reading of section 26(1)(b) of the Regional, Town and Country Planning Act, there can be little doubt that the failure to comply with its peremptory requirements would inevitably invalidate any application that does not comply with its provisions.

The section provides, that, the application shall be accompanied by the consent, in writing, of the holder of a registered real right.

The section does not stop there.

It further gives the applicant the opportunity to show either, that, despite reasonable attempts to ascertain the address of the holder of the real right, he has been unable to do so, or, alternatively, to prove that the person whose consent is required has unreasonably failed to give his consent and that he will not, in any event, be prejudiced in the event of the permit being granted.

The use of the word “shall” in a statutory provision does not automatically render that provision peremptory. It all depends on the intention of the lawmaker.

In Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC), GUBBAY CJ remarked at p301B–F:

“The categorisation of an enactment as 'peremptory' or 'directory' with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter, substantial obedience or fulfilment will suffice, no longer finds favour.

As was pertinently observed by Van Den Heever J (as he then was) in Lion Match Co. Ltd v Wessels 1946 OPD 376 at 380, the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan, and objects.

The same sentiment was expressed by Milne J in JEM Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine 328B.

This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A) where, after concluding that the provision with which he was concerned was imperative, Van Winsen AJA went on to enquire whether the failure in strict compliance therewith was fatal. He propounded the following test at 646C-E:

'The enquiry, I suggest, is not so much whether there has been 'exact' 'adequate' or 'substantial' compliance with this injunction, but rather whether there has been compliance therewith.

This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be.

It is quite conceivable that a Court might hold that, even though the position as it is not identical with what it ought to be, the injunction has nevertheless been complied with.

In deciding whether there has been a compliance with the injunction, the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.'”

However, in Jonathan Nathaniel Moyo & Two Others v Austin Zvoma N.O. Clerk of Parliament & Another 2011 (1) ZLR 345 (S), CHIDYAUSIKU CJ qualified the approach to interpretation in these circumstances, and, instead, held that, at the end of the day, it is the intention of Parliament that is the paramount consideration.

At pp360-362 the learned judge had this to say at para 38-47:

“This Court recently had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision in the case of Doctor Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor Judgment No. SC11-08.

In that case, I cited with approval a passage from Bennion Statutory Interpretation at pp21-22, which sets out how courts should approach that issue. The learned author states, that, a court charged with the enforcement of a statute that does not state the consequences of non-compliance needs to decide what consequence Parliament intended should follow from such failure to comply.

In that case, I had this to say at pp21-23 of the cyclostyled judgment:

'It is the generally accepted rule of interpretation, that, the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory.

In some instances, the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances, no difficulty arises. The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the courts to determine what the consequences of failure to comply should be.

Francis Bennion 'Statutory Interpretation' suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient.