Benedict Shangwa & 6 Ors v Civil Aviation Authority of Zimbabwe & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/47/2021
HARARE, 7 APRIL, 2021
CASE NO. LC/H/REV/16/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/47/2021

HARARE, 7 APRIL, 2021		               CASE NO. LC/H/REV/16/19

AND 21 MAY, 2021

In the matter between:

BENEDICT SHANGWA							1st Applicant

And

MARGRETH KWANGWARI						2nd Applicant

ROSEMARY MANYERE							3rd Applicant

JOSEPHINE CHINYAKATA						4th Applicant

MONICA MATIENGA							5th Applicant

MUKUDZEI MUVENGWI							6th Applicant

KUZIVAKWASHE CHAGONDA						7th Applicant

Versus

CIVIL AVIATION AUTHORITY OF ZIMBABWE			1st Respondent

LIONA DAMBARIMBA DESIGNATED AGENT N.O			2nd Respondent

Before The Honourable Kachambwa J;

The Honourable Chidziva J;

For Applicant:				Ms R. R. Mutindindi (Legal Practitioner)

For Respondent:				Mr C. Kuhuni (Legal Practitioner)

KACHAMBWA J:

On the 24th of June 2019 the respondents appeared in court represented by legal practitioners. At the end of the hearing the application was struck off in accordance with the admissions made by the parties through their laywers. Unfortunately the order was not typed until a follow up was made a year later on the 7th July 2020. On the 15th July the typed order was availed. On the 11th March 2021 the applicants, through a new law firm have asked for reasons for the order. Here be they as the record reflects.

The applicants applied for a review of the designated agent’s ruling. The grounds for the review were that-

1.	Gross irregularity and procedural unfairness in the retrenchment proceedings and the designated agent’s ruling dated 7 February 2019 but served upon the Applicants on 14 February 2019 in that it was done in violation of section 12C of the Labour Act [Chapter 28:01] as the employer unilaterally proceeded to impose a retrenchment package upon the Applicants before that retrenchment issue was dealt by the Works Council.

2.	 Gross irregularity and procedural unfairness in that the Applicants’ right to be heard known as audi alteram partem rule was violated by the respondent which unilaterally imposed a retrenchment package upon the Applicants without affording them the right to be heard first.

3.	Malice and bias against the Applicants by the Respondent in that the purported retrenchment was a stage managed sham which in reality was more of an elimination exercise against the Applicants as they were unfairly treated and weeded out of employment as unwanted elements without any fair and legally valid reason.

4.	Lack of jurisdiction on the part of a designated agent to make a ruling in terms of section 93(5) of the Labour Act or any provision of the Labour Act as designated agent’s powers and jurisdiction is circumscribed in terms of the four corners of the Labour Act and specifically section 63 of the Labour Act and such jurisdiction does not include making any ruling in terms of section 93(5) of the Labour Act.

At the outset the court raised a concern that grounds 1-3 were about what

happened at the workplace and had nothing to do with the designated agent. That being so nothing would arise against the designated agent. As for the 4th ground the court pointed out that the designated agent had made a ruling on the issue and there was nothing unprocedural about that ruling as to qualify it for a review instead of an appeal. The parties were asked to respond to these observations which literally meant that there was no review before the court.

The applicants admitted through counsel that the grounds did not raise review issues. However the applicants were of the view that it was the only way in which they could seek redress as loosing parties since they were of the view that since they had lost the designated agent could not apply for confirmation of the ruling. Indeed this position seemed to have been supported by the case of Drum City (Pvt) Ltd v Brenda Garudzo SC 57/18. This view has however since been held to be incorrect by the Constitutional court in the case of Isoquant Investment (Private) Limited t/a Zimoco v Memory Darikwa CCZ 6/20 where Malaba CJ, at page 26 of the cyclostyled judgment said 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 an abiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”

The 1st respondent’s counsel on the other hand was in agreement with the court’s observations but did not agree that the applicants had no remedy. The counsel was of the view that applicants could ask the designated agent to apply for confirmation of her draft ruling and the 1st respondent would not object to that process.

After hearing the parties the position was common cause that there was no proper case for review before the court. The application was accordingly struck off.

The order of the court therefore is that;

1.	The application for review be and is hereby struck off.

2.	The applicant pays the costs.

Kachambwa J;………………………………..	Chidziva J;……………………………………

Matsikidze & Mucheche 	-	Applicant’s Legal Practitioners

C. Kuhuni Attorneys	-	1st Respondent’s Legal Practitioners