Benjamin Mukorombindo v First Capital Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/265/2020
HARARE, 25 OCTOBER, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/265/2020

HARARE, 25 OCTOBER, 2020			     CASE NO. LC/H/APP/125/20

AND 20 NOVEMBER, 2020

In the matter between:

BENJAMIN MUKOROMBINDO						APPLICANT

Versus

FIRST CAPITAL BANK							RESPONDENT

Before The Honourable Hove J;

For Applicant:	Mr N. Tonhodzai (Musendekwa, Mutisi Legal Practitioners)

For Respondent:			Mr H. Muromba (Kantor & Immerman)

HOVE J:

This is an application for condonation for failure to file an appeal before the appeals board of the Banking undertaking within the prescribed time.

Background

The applicant was charged in terms of a code of conduct. He was found guilty and discharged. In terms of the relevant code of conduct, he had 7 days to note an appeal with the appeals board. He was dismissed on 2 April 2019 and had until 16 April 2019 to file an appeal against the decision. Applicant did not note an appeal. On 27 March 2020, he filed this application for condonation before the Labour Court that it may condone his failure to approach the appeals board within the prescribed time.

Objection

The respondent raised a preliminary objection and argues that the Labour Court being a creature of statute, has no jurisdiction to condone failure to meet deadlines before another forum.

The respondent argued that the powers of this Court are as outlined in the parent Act, the Labour Act [Chapter 28:01] (the Act) Section 89 of the Act provides for the powers of the court and it does not provide that the Labour Court can entertain applications of this nature.

The court was referred to the case of National Railways of Zimbabwe v Zimbabwe Railway Artisans Union, Railways association enginement and Zimbabwe amalgamated Railwayment Union SC 8/05. The Supreme Court in that case stated as follows;

“There is, I think, judging from the cases which have come before us, a misconception generally held by the Labour Court, namely, that it is, in terms of s.89 of the Act endowed with jurisdiction to entertain all applications brought before it.

………….

Before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application “in terms of this Act or any other enactment.”

It was thus submitted that the above supreme court decision stated that the Labour Court can only deal with or entertain applications within the purview of the Labour Act.

It was submitted that in terms of the Act, the Labour Court has no authority to entertain applications of this nature. The Labour Court, it was submitted, has no jurisdiction to deal with this matter.

The applicant submitted that the issue of jurisdiction had not been specifically pleaded and the court must reject all submissions made on this point. It was further argued that since the relevant code did not deal with the issue of condonation, it does not have power to condone, the only place the applicant can approach is the Labour Court, otherwise the door of justice will be closed in his face. The application is said to be in terms of Rule 22.

Rules of the Labour Court do not confer jurisdiction on the court, which jurisdiction would not have been conferred by the Parent Act. The rules regulate process before the court and their purpose is not to confer jurisdiction.

The fact that there is no provision for an application for condonation before the appeals board in terms of the governing code does not in itself confer jurisdiction on the Labour Court.

The Supreme Court case of Mpofu v Commissioner of Police and another SC 10/08 did not pronounce on the jurisdiction of the Labour Court. The jurisdiction of the Labour Court was discussed in the case of National Railways of Zimbabwe (supra). The Supreme court said;

“Before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application in terms of this Act or any other enactment”.

It was therefore incumbent on the applicant to show that the application is in terms of the Act or some other enactment. This was not done, the jurisdiction of the court was not established.

The argument that the constitution gives the Labour Court the jurisdiction to hear Labour law disputes does not assist the applicant. The applicant must point a specific provision in the Act or some other enactment that confers jurisdiction on this court to condone the late filing of an appeal before the appeals board of the Banking Industry.

Advancing social justice can only be within the confines of what can be done by the Court as authorized in terms of the Parent Act. Section 2A of the Act does not clothe the Court with jurisdiction. The issue was also pleaded when the respondent submitted that the matter was improperly before the court.

In the result, the court must decline jurisdiction.

The application is thus improperly before the court and it be and is hereby dismissed with each party bearing its own costs.

Kantor & Immerman 	-	Respondent’s Legal Practitioners