Albert Mukozho v Doves Funeral Assurance (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/817/2016
HARARE, 17 OCTOBER 2016 & CASE NO LC/H/APP/1287/2015
13 JANUARY 2017
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/817/2016

HARARE, 17 OCTOBER 2016 &			   CASE NO LC/H/APP/1287/2015

13 JANUARY 2017

In the matter between

ALBERT MUKOZHO					APPLICANT

Versus

DOVES FUNERAL ASSURANCE 			1ST RESPONDENT

(PVT) LTD

And

ALPHA GURUPIRA N O					2ND RESPONDENT

And

LABOUR OFFICER N O					3RD RESPONDENT

Before the Honourable Muchawa J

For the Applicant		S T Mutema (Legal Practitioner)

For the 1st Respondent	M Moyo (Legal Practitioner

For the 2nd Respondent	In default

For the 3rd Respondent	In default

MUCHAWA J:

This is an application for re-allocation of a quantification matter to a different arbitrator made in terms of Rule 14 of the Labour Court Rules, Statutory Instrument 59 of 2006.

The applicant is a former employee of the first respondent. The second respondent is the arbitrator currently seized with the quantification in question. The third respondent is simply referred to as Labour Officer N O.

Upon the termination of employment between the applicant and the first respondent, the applicant made a claim for outstanding terminal benefits with the labour office which ended up at arbitration before the second respondent. On 27 October 2014 the arbitrator made the following award:

“4.1	The respondent is hereby ordered to reinstate the claimant’s allowances from the date the respondent stopped paying these allowances to date of termination of contract.

4.2	Parties are hereby ordered to engage each other in the quantification of these allowances within fourteen days from date this award is issued, and in the event that parties fail to agree, either party may approach the tribunal for quantification.”

The applicant and the first respondent failed to agree on the quantum of damages within the fourteen days directed by the second respondent.

The applicant then approached the second respondent for quantification. The applicant was directed by the second respondent to file his statement of claim by the 5th of January 2015. The first respondent was to file its statement of defence by 16 January 2015 and the hearing would be held on 23 January 2015. The hearing was duly held with further documents being tendered as evidence. The second respondent undertook to issue her quantification award within a month. She was already paid for her services.

Since then to the time of this application no award has been issued by the second respondent despite spirited follow ups by both the applicant and the first respondent both in writing and over the telephone. This is why this application has been brought before me.

In opposition to this application, the first respondent raises the following points in limine:

That this court has no jurisdiction to determine this matter and that jurisdiction lies with the High Court.

That the applicant has cited a non-existent persona in the third respondent.

At the hearing of the matter, the second and third respondents did not appear. The applicant moved the court to grant the application in default despite the appearance of the first respondent. This was raised as a preliminary point which could close the first respondent’s preliminary points.

I reserved my ruling on the points raised. This is it. I will deal with the issues in reverse order.

Effect of the non-appearance of the second and third respondents

Mr Mutema for the applicant argued that since the second respondent had been duly served with this application but chose not to appear, a default judgment should be entered against her. Nothing was specifically submitted regarding the third respondent.

It was submitted that a default judgment would be entered in terms of Rule 30 of the Labour Court Rules.

Mr Moyo for the first respondent argued that it would be inappropriate to enter default judgment in the presence of the first respondent as the real dispute is between the applicant and the first respondent. The second respondent is said to have been cited in her official capacity and need not really attend whereas the third respondent is alleged to be non-existent.

I do not believe that this point was seriously raised. Would the proposed default judgment operate against the first respondent who was not in default? Would the court have various judgments relating to each respondent? The applicant’s proposal does not make sense. Rule 30 of the Labour Court Rules applies to a situation where either the applicant(s) or respondent(s) is/are in default and not where one of the respondents does not default.

I therefore dismiss this point.

Whether the third respondent is a legal persona

The first respondent’s Mr Moyo submitted that a party approaching the court should furnish sufficient detail as to the identity of a party sued in order to prove their locus standi in judicio. Where this is not done, then such a party would be improperly before the court as they would be non-existent.

It is submitted that there is no individual who answers to the description “Labour Officer N O”.

The applicant submitted that the labour officer is cited in his/her official capacity and that it is permissible to cite an office for these kinds of proceedings.

That argument is dispelled in the case of JDM Agro Consult & Marketing v The Editor of the Herald Newspaper & Anor HH 61-07 where it was held that the citation of the editor was irregular. It was held:

“The editor of a newspaper is the person responsible for the editorial content of such newspaper. It is a position that is occupied for the appropriate period by such individual employed in that capacity. It is therefore an occupation wherein the occupant can change from time to time. It is not a natural or legal person and there is no person identified by that name.”

I therefore, for the same reasons uphold this point in limine. There is no third respondent before me.

Whether or not this court has jurisdiction

Mr Moyo submits that this court is a creature of statute whose powers are largely based on the Labour Act [Chapter 28:01] and that the relief sought is not provided for in the Act. This court is said not to be clothed with the power to reappoint an arbitrator.

Such jurisdiction, it is submitted, vests in the High Court by virtue of Article 14 of the Arbitration Act [Chapter 7:15].

Mr Mutema pointed to section 89 (1)(d) and 98 (6) of the Labour Act as vesting jurisdiction to appoint an arbitrator in this court. It is argued that the Arbitration Act is not applicable in casu as this is a labour matter and that in line with section 172 (2) of the Constitution, the Labour Court has such jurisdiction over matters of labour and employment as may be conferred on it by a Act of Parliament.

Let me take this through the sections relied on by the applicant. Section 98 (6) of the Act provides that the Minister, in consultation with the Senior President of the Labour Court and the appropriate advisory council, if any, shall from time to time prepare a list of arbitrators as specified.

Such arbitrators are for referral of disputes to compulsory arbitration in terms of the Act.

Section 89 (i)(d) sets out that the Labour Court shall exercise the following function:

“Appointing an arbitrator from the panel of arbitrators referred to in subsection 6 of section ninety-eight to hear and determine an application.”

The Arbitration Act relates to voluntary arbitration and section 98 (2) of the Labour Act provides that, subject to this section, the Arbitration Act shall apply to a dispute referred to compulsory arbitration. In my opinion the Arbitration Act would only apply in so far as the Labour Act has no specific provisions.

Inherent in the power to appoint an arbitrator given to this court in section 89 (1)(d) must be the power to dis-appoint and re-appoint.

The Labour Court therefore has jurisdiction to reappoint an arbitrator.

This point in limine is therefore dismissed.

The Registrar is ordered to set down the application for reallocation of matter to a different arbitrator as soon as reasonably practicable.

Gunje & Chasakara, applicant’s legal practitioners

Dube-Banda Nzarayapenga & Partners, 1st Respondent’s legal practitioners