Gain Cash & Carry (Pvt) Ltd v Musa Kapeni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2024
HARARE, 17 OCTOBER, 2024 AND
17 JANUARY 2025
CASE NO LC/H/643/24
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H//2024

HARARE, 17 OCTOBER,   2024  AND

17 JANUARY 2025                            	                       CASE NO LC/H/643/24

GAIN CASH & CARRY (PVT) LTD			APPELLANT

MUSA KAPENI						RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant			- L. Muchanyukwa, Manager

For Respondent		- S. Muhambi, Unionist

MUSARIRI, J:

On the 17th May 2024 the Chief Designated Officer of the NEC for the Commercial Sectors issued a determination which ordered appellant to reinstate respondent’s employment. Appellant then appealed the determination to this Court in terms of Section 92D of the Labour Act Chapter 28:01 hereafter called “the Act.” Respondent opposed the appeal.

At the onset of oral argument in this Court appellant raised a point in limine. The point is expatiated in its heads of argument thus,

“3.1 The Designated Agent, at the time he made the determination on the 17th of May 2024 no longer had the mandate. This is due to the fact that Section 56 of the Labor Act (Chapter 28:01) that gave rise to voluntary National Employment Councils had been rendered nonexistent by Section (23) of the Labour Amendment Act No 11 of 2023. Such voluntary National Employment Councils had ceased to exist and the Designated Agent being employed by one of them no longer had the locus-standi.

3.2 After promulgation of the Labor Act amendment 11/23 on 14th July 2023, regulated that all NECs are now Statutory Bodies and would have to be registered in terms of Section 57 to be classified as such.

3.5 It is against this background that we seek for this determination by the Negotiating Committee to be rendered null and void.”

In his heads of argument, respondent countered as follows,

“This court cannot be called to entertain the issue of jurisdiction of the tribunal a quo because this court was not party to that previous court. Appellant should have challenged that tribunal before the conclusion of the appeal filed to the National Negotiating Committee. This has become an afterthought whereas Appellant is trying to smuggle in a new ground of appeal.The court is being called to determine the grounds of appeal raised. The point in limine is not part of the grounds of appeal. It does not relate to the present court or to the respondent. It has nothing to do with the papers before this court. If a point in limine is not related to the point in casu, it ought to be dismissed. It also does not help the court in disposing of the matter to finality.”

Analysis

In essence, appellant’s point is that the tribunal a quo lacked jurisdiction to deal with the matter. Lack of jurisdiction should be raised by way of review rather than appeal. This appears from Section 92EE of the Act which provides that,

“1. Subject to this Act and any other law, the grounds upon which any proceedings or decision conducted or made in connection with this Act may be brought on review before the Labour Court shall be-

a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned."

The statutory provision of the remedy of review for lack of jurisdiction excludes the remedy of an appeal. This is consonant with the canon of statutory interpretation which states expressio unis exclusio alteri. On that basis, the point in limine has been improperly raised in this appeal.

Further and in any event this Court has already ruled in the judgment referenced Marlborough High SDC v Mudewa LCH 15/25 that Section 56 of the Act did not abolish National Employment Councils as alleged. In the said judgment the Court disagreed with the contrary position taken by the prior judgment in DGL Investments v Ndlovu LC/MT/70/23. The decisions by the judges of this Court do not bind the Court but serve as persuasive authority which can be departed from in appropriate cases. See Rule 42 of the Labour Court Rules, 2017.

Wherefore it is ordered that,

The appellant’s point in limine be and is hereby dismissed;

The registrar of this court is directed to re-set the matter for continuation on the earliest available date; and

Costs shall be costs in the cause.

G. MUSARIRI

J-U-D-G-E