Consolator Nyamazana v The Provincial Labour Officer Matabeleland North N.O and African Sun Limited

### Preamble
1
HB 209.19
HC 2991/17
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CONSOLATOR NYAMAZANA

Versus

THE PROVINCIAL LABOUR OFFICER

MATABELELAND NORTH N.O

AND

AFRICAN SUN LIMITED

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 3 JULY 2018 & 9 JANUARY 2020

Opposed Matter

Z C Ncube, for the applicant

A K Maguchu, for the 2nd Respondent

MABHIKWA J:	Applicant filed an application with this court seeking an order compelling 1st respondent to schedulle or to cause to be schedulled an arbitration hearing of a labour dispute between her and the 2nd respondent so as to “advance” the matter in terms of the Labour ct (Chapter 28:01).

The brief history of the matter is that the applicant was employed by the African Sun Limited group of hotels.  She was stationed at the Elephant Hills Hotel at Victoria Falls.   At the relevant time, she states that she was a Deputy General Manager at the Elephant Hills Resort.  Sometime in 2010 and 2011, she and the 2nd respondent had a serious fall out.  Various solutions including exit package and voluntary resignation were inconclusively discussed.

Apparently, applicant was eventually charged with misconduct and dismissed from employment.  The applicant contends that she was unfairly dismissed from employment.  She argues that she was never served with the charge and, or the notification to attend misconduct hearings.  She says she only received a letter of dismissal on 10 January 2011, the hearings having been done and concluded in her absence.  She filed an appeal within the structures of the 2nd respondent but the appeal was not processed until the 30 days provided for in the Labour Act, as read with the African Sun Code of Conduct and implications thereof lapsed.  The matter was then apparently taken to arbitration by a Mr I Bonda.  Applicant says that unfortunately Mr I Bonda was transferred to another station before he could hear the matter.  Respondents seem to argue that the said Mr I Bonda called upon the parties to file submissions and set the matter down for 23 May 2012  at 10:30 hours but applicant did not file the submissions.  It is therefore not entirely clear whether the failure to hear the matter was occasioned by Mr Bonda’s transfer or the failure to file submissions as directed by Mr Bonda.

Applicant states that thereafter, several requests, by letter and otherwise have been made to the 1st respondent to place the matter before or to appoint another arbitrator but 1st respondent has simply ignored all correspondence, hence this application.  The application is vigorously opposed on the following grounds.

a) 	Wrong person cited: 2nd respondent contends that the applicant is essentially ‘barking the wrong tree” endlessly.  It contends that the application must be dismissed with costs because the mandamus order is sought against the Provincial Labour Officer, Matabeleland North, a person or office with no role to play in dispute resolution proceedings under the Lbaour Act.

b)	Prescription: 2nd respondent argues that the applicant’s claim has prescribed.  I must say that I found the prescription argument by the 2nd respondent more of a “splitting of hairs” and unconvincing and dismissed it.

c)	Proceedings a nullity: That the proceedings sought to be referred for arbitration are a nullity and that this court cannot be petitioned to refer a nullity for adjudication as there are practically no proceedings to refer to arbitration.

d)	No cause to appoint an Arbitrator: There is no cause to appoint an arbitrator in that in 2nd respondent’s argument, the arbitration proceeding before I Bonda terminated by operation of law and as such, there is no reason why an arbitrator should be appointed.

e)	Wrong court approached: 2nd respondent argues that since there are sufficient domestic remedies available to the applicant, as provided for under the Labour Act.  It then argues that applicant has jumped the gun and approached the wrong court.

It is correct in my view that the applicant has sued the wrong person and as a result has been barking at the wrong tree.  The person to be sued in fact is the Labour Officer, see sections 93 and 98 of the Labour Act, Chapter 28:01.  It is important to note that applicant has not challenged that position or interpretation of the Labour Act.  The court was simply implored, in the exercise of its discretion and “inherent jurisdiction”, to condone that “oversight” and grant the relief prayed for.  However, as correctly pointed out by counsel for 2nd respondent, the court cannot be asked to order a nullity.  In other words, even if the court were to grant the order sought, it would be unenforceable and there is a pleathora of cases decided to the effect that it is undesirable and the court should not grant an order that is unenfoerceable.

In terms of the Labour Act, an arbitrator appointed to determine a labour dispute is appointed by the Labour Officer, not the Provincial Labour Officer.  The court cannot therefore, even if it were to flex its “inherent jurisdiction muscles” order a party to do what it is not mandated by law to do, where there is a specific statute directing what should be done.  In Zimtrade v Makanya 2005 (1) ZLR 427 (H) the applicant (Zimtrade) employed the respondent up to 31 December 2004 as its manager for the Micro Small and Medium Enterprises.  Following a misunderstanding between the two, respondent was suspended from work without salary and benefits.  Subsequently on 25 January 2005, she was dismissed from employment with effect from the date of suspension.  The respondent then requested a referral of the matter to a Labour Officer in terms of section 93 of the Labour Act.  She refused to surrender the applicant’s property in her possession.  On 25 February 2005, the applicant filed an application for an order compelling her to surrender the said property.

MAKARAU J (as she then was), at the hearing of the application, raised mero motu, the issue of jurisdiction in light of the amendment to the Labour Act which limits the jurisdiction of all other courts in the first instance save that of the Labour Courts in matters provided for in the Act.  The learned Judge held that matters relating to suspension from employment, with or without salary and matters relating to dismissals are specifically within the perview of the Labour Court as these are matters that are provided for in the Act and the regulations made thereunder.  The learned judge also held, and rightly so in my view, that there is adequate provision under the Act for the setting up of machinery to resolve such issues.

See also Sibanda and Another v Chinemhute and Another HH 131-04.

In casu, the court has not even been asked to compel a Labour Officer to appoint an arbitrator but a completely wrong person or office altogether.  And in Chivoodza v Chitungwiza Town Council and Another 1992 (1) ZLR 77 (H) an urban council wrongly dismissed the applicant from his job.  Applicant sought an order declaring his dismissal invalid and an interdict prohibiting the council from taking any further action to suspend or dismiss him on the same grounds as the previous ones.  The court held that indeed the dismissal was a nullity because certain mandatory provisions pertaining to notice and ministerial approval of the decision in the Urban Councils’ Act had not been complied with.  The court further held however, that where a decision of an administrative tribunal has been set aside on the grounds of irregularities, the matter will usually be refered back to the tribunal because the courts are slow to exercise a discretion allocated by statute to a tribunal.  It was however held in the circumstances of that case, that the court may decide not to refer the matter back where:

The decision is a foregone conclusion and referring the matter back will be a waste of time and would cause further prejudice to the applicant.

The tribunal has exhibited such bias or incompetence that it would be unfair to the applicant to refer the matter back.

I am of the firm view that this is not the type of case to be granted the indulgence and reprieve such as was granted in the Chirodza case.  Instead, the reverse is true in that even if the order is granted as prayed for, it will be unenforceable and therefore a nullity as argued by the 2nd respondent.  It has also been argued by 2nd respondent that the claim has by now prescribed.  I am inclined to agree from the brief history of this case that it has not prescribed.  It appears to me that this is a type of case covered by section 94 of the Labour Act.

However, as correctly cited and argued by the 2nd respondent, it was held in Watyoka v ZUPCO (Northern Division) SC 76/06 that once a matter has been determined by the disciplinary committee under the Code of Conduct, it cannot subsequently be refered to a Labour Officer as this amounts to granting to the Labour Officer appellate jurisdiction over decisions made under the Code.  In the current case, the Labour Officer (Mr Imbayago) had appointed an arbitrator (Mr I Bonda).  Both left the matter midway.  Infact according to applicant, Mr I Bonda was transferred before hearing the matter.  Mr Imbayago left the ministry and therefore could no longer act.  Whoever had taken over that office, would have had to act in terms of sections 93 and 98 of the Labour Act.  Unfortunately, applicant, from his own papers, appears to have continuously been writing to the wrong office, the 2nd respondent.  At the very least and in the circumstances the applicant’s application should have been made to the Labour Court for directions in terms of section 93 (7) of the Labour Act.

I must state that litigants, mostly through legal practitioners are increasingly turning to the “inherent jurisdiction” card for whatever reasons and purposes known only to themselves.  But it should always be remembered that it is an improper and undesirable practice as was also held in Karimatsenga v Tsvangirai and Another 2012 (2) ZLR 195 (H) (HH 396-12) that each court is a creature of statute, and its powers are created and defined by statute.  If one court were to claim that it has some inherent power to override another court, instead of a power specifically created by statute, in effect it would be claiming power to nullify the body of statute law which specifically relates to the establishment and powers of each of the civil courts in the country.  It was held further that it was not for the High Court to usurp the powers of the magistrate and the marriage officer and take over their functions.   If the court were to use its inherent powers to take over the functions of the lower courts, that would be tantamount to amending legislation through the back door.”

It should be known and remembered therefore that the High Court cannot willy nilly flex its muscles as it were and invoke its inherent powers to take away powers given to another court or person by an Act of Parliament.

For the foregoing reasons, the application is dismissed with costs.

Ncube & Partners, applicant’s legal practitioners

Dube, Manikai & Hwacha c/o Calderwood, Bryce Hendrie and Partners, 2nd respondent’s legal practitioners