Elton Ntini v Rydings College

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/80/2024
HARARE, 19 JANUARY, 2024
CASE NO LC/H/909/23
28 FEBRUARY 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 19 JANUARY, 2024

28 FEBRUARY 2024

JUDGMENT NO LC/H/80/2024 CASE NO LC/H/909/23

ELTON NTINI	APPELLANT

RYDINGS COLLEGE	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- Mr W. Musikadi, Attorney

For Respondent	- Mr T. J. Mafongoya, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court respondent raised points in limine which appellant. The points shall be dealt with ad seriatim.

That the appeal is improperly before the Court:

The point is expatiated in respondent’s opposing affidavit thus;

“4.1 I am advised that the present Appeal is improperly before the Court and violating Section 101 of the Labour Act as amended. The Appeal ought to have been filed before the Labour Officer/Designated Agent in terms of the Labour Amendment and not the Labour Court within provided statutory timelines.

4.2	The Appeal is improperly before the Labour Court as the Court lacks merit to entertain the present matter.”

The appeal was filed on the 8th November 2023. At time the Labour Act Chapter 28:01 (the Act) had just been amended by the Labour Amendment Act No 11 of 2023 (the Amendment). Respondent relied on Section 31 of the Amendment which provides that;

“Section 101 (Employment codes of conduct) of the principal Act is amended- a)

b) by the insertion of the following proviso in subsection (5)-

‘Provided that at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of Section 93 or exercise any other power provided for in that Section.’

Respondent argued that the amendment means that appellant should have referred the matter to a Labour Officer and not the Labour Court.

On the other hand appellant relied on Section 92 D of the Act which provides that;

“A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

Appellant argued that he retained his right to appeal to the Labour Court in terms of the Act despite the Amendment.

Prior to the Amendment a party had the right to appeal to the Labour Court in terms of Section 92

D. That right cannot be presumed to be taken away by another statute in the absence of clear wording to that effect. See

Bater v Muchengeti 1995(1) ZLR 80, 84 G-H per Gubbay CJ

“The correctness of that view of the matter is underscored when account is taken to the fundamental rule of construction in our law, dating probably from Codex 1:14:7, that there is not to be given to an enactment so as to remove or in any way impair existing rights or obligations, unless such a construction appears clearly from the language used or arises by necessary implication.”

The Amendment does not purport to amend Section 92 D but specifically amends Section 101. That really is the end of the matter. Alternatively the Amendment does not by necessary implication amend Section 92 D. what the Amendment has effectively done is to give an aggrieved party 2 (two) options. The party may appeal to either the Labour Court or a Labour Officer. If the party considers that conciliation will resolve his grievances his obvious option is the Labour Officer. Otherwise a party who considers that his grievance may be solely resolved by appeal might prefer the Labour Court. This interpretation is consonant with another cardinal canon of interpretation of statutes viz that statutes must be read to speak to each other rather than against each other.

That the appeal is directed against both disciplinary and appeals determinations:

The point is rather pendantic. The appeal determination upheld the ruling of the disciplinary authority. So mentioning both rulings in the appeal against the appeals ruling does not nullify the appeal.

That the appeal is defective for violating Rule 19(1) c of the Labour Court Rules, 2017: Respondent abandoned the point during oral argument.

That the appeal is defective for failure to specify whether it is in whole or in part:

There is no Rule in the Labour Court Rules which requires an appellant to state that they are appealing against part or the entirety of ruling or determination. Respondent was unable to refer to such Rule or practice.

Conclusion

All the points argued by respondent lack merit and need be dismissed.

Wherefore it is ordered that,

The Respondent’s points in limine be and are hereby dismissed;

The Registrar of this Court is directed to re-set the matter for hearing at the earliest available date; and

Costs shall be costs in the cause.

G. MUSARIRI J-U-D-G-E