Clifford Mabasa, Eleck Mubaya, Takawira Goto, Ronald Gwanzura, Stewart Muvami, Paction Chigwiri v Blue Ribbon Foods Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
11 JANUARY 2024
JUDGMENT LC/H/1/24
CASE NO. LC/H/845/23
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 11 JANUARY 2024

AND 12 JANUARY 2023

IN THE MATTER BETWEEN:-

CLIFFORD MABASA ELECK MUBAYA TAKAWIRA GOTO

RONALD GWANZURA STEWART MUVAMI PACTION CHIGWIRI AND

BLUE RIBBON FOODS LIMITED

JUDGMENT LC/H/1/24

CASE NO. LC/H/845/23

FIRST APPLICANT SECOND APPLICANT THIRD APPLICANT

FOURTH APPLICANT FIFTH APPLICANT

SIXTH APPLICANT

RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicants	Mr. E.E. Matika

For Respondent	Ms. R. Magundani

MURASI J.,

This is an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.

Two issues arose at the commencement of the proceedings. The first issue was that Applicants’ legal practitioner was of the view that this was a composite application for condonation AND an application for leave to appeal both to be heard at the same time. After an exchange of pleasantries, it was resolved that the application for condonation was to be heard and a decision made which could then lead to an application for leave to appeal.

The second issue pertained to the representation of parties. First Applicant’s Founding Affidavit stated as follows:

“I am the 1st Applicant in this matter. I depose to this affidavit on my behalf and on behalf of 2nd to 6th Applicants as their duly authorized representative.”

The Court brought to Mr. Matika’s attention that no authorization was filed with the Court. Mr. Matika agreed that this was an oversight and this thus meant that there was only the First Applicant before the Court. Ms. Magundani stated that the Respondent was not going to oppose the issue of condonation as far as the explanation for the delay was concerned but was opposing the application in respect of the prospects of success.

In submissions as regards the explanation for the delay, Mr. Matika stated that Applicant only became aware of the Court’s judgment delivered on 17 March 2023 on 23 August 2023 when it was uploaded onto the IECMS system. He submitted that Applicants were not aware of the existence of the judgment before that date. Mr. Matika also stated that the issue was further compounded by the fact that the system initially rejected the application for the issuance of the stamped judgment and caused the delay in filing the application. As stated earlier in this judgment, Ms. Magundani informed the Court that Respondent was not going to make submissions in respect of this explanation. The Court takes cognizance of the fact that the IECMS was introduced at the Labour Court on 1st February 2023, the date on which the matter was heard. The Court appreciates that ‘teething problems’ may have caused the non-availability of the judgment to the litigants. The explanation is thus accepted as reasonable and acceptable in the circumstances.

As regards the issue of prospects of success on appeal, Mr. Matika was clearly at pains to show that there were prospects of success on appeal. He submitted that the Court had erred in its interpretation of section 12 C (1) of the Labour Act. He further stated that Applicant contended that there were supposed to be consultations between the employer and the employee with regards the issue of retrenchment before the retrenchment took place. He further argued that even though there was no express mention of this fact in section 12 C, this emanated from section 12D. He stated that section 12D set a condition precedent to the retrenchment process. In submissions, he further alluded to the fact that these sections should be read in tandem with section 65 of the Constitution of Zimbabwe.

As regards the second prospective ground of appeal, Mr. Matika argued that the Court had erred in stating that section 92D gave the employer the discretion when in fact there was no such discretion because the word ‘may’ should be interpreted to mean ‘shall’. As far as the third prospective ground of appeal was concerned, Mr. Matika submitted that the Court had erred in finding that the Applicant had waived his right when he ‘consumed’ the retrenchment package deposited into his account. He stated that the Supreme Court was likely to decide differently.

In the heads of argument, it was argued that the Court should have adopted a purposive interpretation of the statute which should be consistent with substantial fairness in line with the

Constitution and ILO Standards. It was further stated that the provisions of section 12D were peremptory and that the ordinary grammatical interpretation taken by the Court results in the subversion of ‘obvious legislative intention’.

In response, Ms Magundani stated that the provisions of section 12C (1) were clear and unambiguous and they provided an employer with guidelines to follow when dealing with retrenchments. She stated that the Respondent had followed these guidelines and that Applicant had not at any stage averred that this was not done. She said, in this respect, it could not be said that the Court had erred in upholding the decision of the Labour Officer.

As far as the second prospective ground of appeal was concerned, Ms. Magundani stated that Applicant was asking the Court to interpret the word ‘may’ to mean ‘shall’. She submitted that this could only be resorted to in the event of some ambiguity existing and that in this instance there was no such ambiguity. She argued that there was therefore no error on the part of the decision of the Court. She added that Applicant had adopted a ‘circuitous’ approach to read section 12C and section 12D together thus creating a ‘cocktail’ and that this was not supported by the statute.

In respect of the third prospective ground of appeal, Ms. Magundani stated that the record showed that Applicant was served with a retrenchment notice, money was deposited into his account and a letter was sent to him to return the money if he was opposed to the retrenchment exercise. She further stated that this was a huge sum of money which far exceeded Applicant’s salary. She argued that by spending the money, Applicant had indeed waived his right to state that he was not retrenched and that the Supreme Court had already decided on the matter in precedent. In the heads of argument, it was submitted that this conduct was inconsistent with the enforcement of the right to have the matter resolved through other means and the Chidziva case was cited in support thereof.

ANALYSIS

In Thando Ncube v Fidelity Printers and Refineries (Pvt) Ltd SC 62/20, MAKARAU JA (as she then was) had this to say:

“In an application for leave to appeal, the Judge considering the application acts as a gate- keeper. The role of the judge is to keep out appeals with no prospects of success. It presents itself very clearly to me that an application that raises a point that has already been determined by this court and has been determined against the very point that the applicant should not be allowed to pass, unless the applicant shows that it intends to request the Supreme Court to reverse its earlier decision and has prospects of success in that regard.”

In my view, the above cited case deals with the situation raised by Applicant in the third prospective ground of appeal. The Chidziva Case as referred to in Respondent’s heads of argument clearly articulates the position that befell the Applicant. It is a matter which was

decided by KORSAH JA and applies to the Applicant. It has not been argued on behalf of the Applicant that he intends the Supreme Court to reverse the decision. The third prospective ground of appeal does therefore not have prospects of success on appeal.

I now turn to first prospective ground of appeal. In Lwazi Sibanda, Betty Hlabangana vs Francisca Ncube and Others SC 158/20, PATEL JA (as he then was) had this to say at page 18 of the cyclostyled judgment:

“The cardinal rule of construction is to ascertain the true intention of the lawmaker. In ascertaining that legislative intent, the golden rule of statutory interpretation is that every enactment must be given its plain, ordinary and grammatical meaning, unless to do so would result in some inconsistency, absurdity or repugnancy, in which case the provision may be construed and applied with such modification as may be necessary to obviate the anomaly in question. The corollary to this rule, where fundamental rights and freedoms or other constitutional provisions are implicated is that, the enactment must be construed, insofar as is possible without doing violence to its language, so as to conform with those rights and freedoms or other constitutional provisions. In the event that it is not possible to do so, the enactment is exposed to the risk of being challenged and struck down as being unconstitutional.”

The provisions of section 12C are clear and unambiguous. The procedure to be followed is clear. It should be noted that the amendment to the section came in 2015. Both sections 12C and 12D came up for amendment. It has been argued for the Applicant that the grammatical interpretation taken by the Court results in ‘subversion of obvious legislative intention’. However, the Supreme Court, in the above-cited case, has cautioned against the proposal by the Applicant. It has been stated that “every enactment must be given its plain, ordinary and grammatical meaning” unless this leads to some absurdity. No absurdity has been identified by the Applicant from according the section its plain grammatical meaning. Is the Supreme Court, therefore, likely tome to a different conclusion? I think not.

The second prospective second ground of appeal is clearly a red herring. What was brought before the Court was the confirmation of a draft ruling pursuant to the application of 12C of the Labour Act, retrenchment. Whilst a statute is supposed to be read as one for consistency, one needs to look at the intention of the Legislature which comes out of the statute. What arises is the interpretation of the use of the word 'may' in subsection (2) of section 92D. However, the interpretation proposed by Applicant in submissions was clearly in correct. Mr. Matika had a difficult time trying to explain the meaning to be accorded to the two sections. This is what was addressed by Ms. Magundani as the creation of a ‘cocktail’ in a statute. The ground of appeal also created some mischief in that it averred that the Court had made a finding that:

‘it was not peremptory for an employer to comply with the requirements concerning special measures to avert retrenchment in terms of section 12D (2) and (2a) before embarking on retrenchment whereas the said provisions are worded in the peremptory

and therefore the failure to comply with some rendered the subsequent retrenchment a nullity’

Applicant does not refer to the use of the word ‘may’ in section 12D (2). Applicant’s legal practitioner urged the Court interpret the word ‘may’ as ‘shall’. The argument was that it was to be taken as peremptory. In Chiroswa Minerals (Private) Limited and Others vs Minister of Mines and Others HH/261/11, PATEL J (as he then was) at page 5 of the cyclostyled judgment cited the case of Sutter v Scheepers 1932 AD 165 delivered by WESSELS JA which stated as follows:

“Now it is admittedly a difficult matter to lay down any conclusive test as to when a provision is directory and when it is peremptory. A long series of cases both here and in England have evolved certain guiding principles. Without pretending to make an exhaustive list I would suggest the following tests, not as comprehensive, but as useful guides. The word ‘shall’ when used in a statute is rather to be construed as peremptory than as directory unless there are circumstances which negative this construction: Standard Bank Ltd v van Rhyn (1925 AD 266).

If a provision is couched in a negative form it is to be regarded as a peremptory rather than as a directory mandate. To say that no power of attorney shall be accepted by the Deeds Office unless it complies with certain conditions rather discloses an intention to make the conditions peremptory than directory: though even such language is not conclusive.

If a provision is couched in positive language and there is no sanction added in case the requisites are not carried out, carried out, then the presumption is in favour of an intention to make the provision only directory.

If, when we consider the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.”

It is trite that it is the duty of courts to try to get at the real intention of the Legislature by attending to the whole scope of the statute to be construed. Section 12C and 12D have been amended time and again in order to deal with the issue of retrenchment. Subsection (2) of section 12D commences with the following words ‘Subject to this section’. I do not need to delve into the interpretation of that provision. What follows is important. The subsection provides that before giving a notice to retrench, an employer ‘may agree with the employees concerned’. Firstly, there is the use of the word ‘may’. Secondly, the word ‘agree’ is part of that provision. It is clear that the Legislature did not intend to make this a peremptory instruction because the provision allows for an agreement between the parties. As observed in the Sutter Case above, the legislative instruction can only be directory. This is so, firstly, because of the use of the word ‘may’. Secondly, the absence of a sanction for non-compliance gives credence to such an interpretation.

It cannot therefore be argued that this Court was in error in failing to correctly interpret the provisions of the two sections. The superior courts have given adequate light and direction on how the courts should interpret such provisions. It is my considered view that the Supreme Court is unlikely to come to a different conclusion on the same facts.

I should conclude by making the following summary.

The Supreme Court has pronounced that the ordinary grammatical meaning should be utilized in the interpretation of a statute unless this would lead to an absurdity. (The Lwazi case supra).

Where the instruction is not given in peremptory terms and the positive language of that statute does not give a sanction for non-compliance, the instruction should be regarded as directory (the Chiroswa case supra).

The Supreme Court will only interfer with an earlier decision when called upon to re-visit the legal issues pronounced in earlier decision. (Thando Ncube Case supra).

It is thus my view that there are no prospects of success on appeal. In the result, the Court makes the following order:

The application for condonation of the late filing of an application for leave to appeal to the Supreme Court is hereby dismissed for lack of merit.

Applicant to meet Respondent’s costs.

Matika, Gwisai & Partners-	Applicant’s legal practitioners

Scanlen & Holderness-	Respondent’s legal practitioners.