Givemore Dzaramba v SDC Rusungunuko Primary School Development Committee and National Employment Council for School Development Association

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/374/25
CASE NO. LC/H/REV/65/18
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 14 FEBRUARY, 2025

19 MARCH, 2025 AND 9 OCTOBER 2025

JUDGMENT NO. LC/H/ 374/25

CASE NO.	LC/H/REV/65/18

GIVEMORE DZARAMBA	APPLICANT AND

SDC RUSUNGUNUKO PRIMARY SCHOOL	1ST RESPONDENT DEVOLOPMENT COMMITTEE

AND

NATIONAL EMPLOYMENT COUNCIL FOR SCHOOL	2ND RESPONDENT DEVELOPMENT ASSOCIATION

Before the Honourable Chivizhe, Judge:

For Applicant	-	Mr. Kupara, (Trade Union ZESS (WU)

For 1st Respondent	-	Mr S. Mangoma (Employer Representative)

CHIVIZHE, J:

This is an application for review of a determination made by the 2nd Respondent on 24th July, 2018. The application which is premised on Section 92 EE of the Labour Act [Chapter 28:01] is based on two grounds;

Gross irregularity in the decision of the adjudicating authority.

Interest in the cause, bias, and malice on the adjudicating authority.

The application has been opposed by the 1st Respondent and 2nd Respondent.

In relief, the Applicant prays for the ruling of 2nd Respondent to be set aside and substituted with the following, that, the 1st Respondent shall calculate the Applicant’s terminal benefits using salary-scale applicable before exemption and pay the Applicant terminal benefits within a period of one month.

BACKGROUND FACTS

The Applicant is a former employee of the 1st Respondent. The 1st Respondent is a parents’ body established in terms of the Education Act [Chapter 25:04], with the legal capacity to sue and be sued in its own name. In the discharge of its functions, it operates in close collaboration with the Mazowe Rural District Council, a local authority established under the Local Government framework. The 2nd Respondent, on the other hand, is a statutory body duly constituted with the capacity to sue and be sued in its own right in terms of the laws of Zimbabwe.

The facts giving rise to this matter are that the Applicant was dismissed from employment following certain alleged acts of misconduct on which he was found guilty. After his dismissal, he sought to engage the 1st Respondent in order to resolve the issue relating to payment of his terminal benefits. It was during this period that a dispute arose concerning the salary scale to be applied in the computation of those benefits.

The 1stRespondent maintained that a reduced salary scale ought to be applied. This reduction emanated from an exemption granted by the 2nd Respondent, which the Applicant claims he was neither aware nor consulted. The disagreement was subsequently referred to the 2nd Respondent for determination. The issues that had been referred for determination were two;

To determine which basic salary to be used to calculate the Applicant’s terminal benefits.

To determine whether the basic salary in terms of the exemption was appropriate to be used.

In his award the Designated Agent noted that under the Statutory Instrument 127 of 2013 institutions are granted the power to apply for exemption from paying the gazetted wages. The 1st Respondent having so approached the National Employment Council for the Government Industry had received an exemption certificate under reference No 009/2015. The certificate was covering the period from 1 June 2015 to 31 December 2015. The Designated Agent noted that the Applicant misconduct having been committed during the period covered by the exemption the salary that had to be used to calculate was the one at the exempted level. It was upon his consideration of the parties’ submissions as well as the evidence tendered before him that he then issued a ruling directing that the reduced salary rate be applied. The award rendered provides as follows;

The basic salary to be used to calculate the Applicants terminal benefit is the exempted rate of $220 per month.

The basic salary in terms of the exemption was the appropriate current salary. The award was rendered on 24th of July 2018.

Aggrieved by that determination, the Applicant has approached this Honourable Court by way of review proceedings.

APPLICANTS SUBMISSIONS

The Applicant through his Founding Affidavit, is alleging gross irregularity on the part of the 2nd Respondent in issuing a ruling favourable to the 1st Respondent. The Applicant contends that the salary scale applied is not lawful, as the exemption relied upon originated from the National Employment Council for the Government Industry, the 2nd Respondent. He maintains that the jurisdiction of that National Employment Council does not extend to council run schools such as the 1st Respondent, with the result that the exemption is a nullity in law.

He therefore avers that the decision of the 2nd Respondent that the calculation of the benefits should be based on the reduced salary rate in view of the exemption certificate issued to 1st respondent by 2nd Respondent was grossly irregular. The Applicant also alleges malice, corruption on the part of the 2nd Respondent in ruling in favour of the 1st Respondent. In oral submission, Mr Kupara, for the Applicant, emphasised that the 2nd Respondent was not empowered to render the exemption certificate as 1st Respondent is a council run school. The exemption certificate had also been issued without consultation with him. He contends that the exemption certificate issued was a nullity.

1ST RESPONDENT SUBMISSIONS

The 1st Respondent, through the Opposing Affidavit of Shame Mangoma, has taken a point in limine, that the Applicant has taken the wrong procedure in seeking review. The 1st Respondent contends that the law (as it was then in 2018) did not provide for a right to seek review of a draft ruling by the Designated Agent. The law provided instead for the draft ruling to be placed before the Labour Court for confirmation. The 1st Respondent prayer is that the current proceedings, being a legal nullity, the application for review ought therefore to be dismissed.

The 1st Respondent had also taken a second point in limine based on prescription which was not pursued at the oral hearing. The point has to be deemed as abandoned.

In oral submissions, Mr Mangoma took two further points in limine not raised in the pleadings. He took as a third point in limine that, in view of the introduction of S.I. 33 of 2019 it would serve no purpose for the matter to be determined by this court. The dispute had, in other words become moot. The fourth point in limine taken was that the grounds as raised by

the Appellant relate more to an appeal than to review. The 1st Respondent position was that the application was therefore improperly before the court.

On the merits, Mr Mangoma emphasised that there was nothing irregular with the decision taken by the 2nd Respondent. The facts revealed that 1st Respondent had indeed been granted an exemption certificate. In response to the point taken by Appellant that the exemption certificate was improperly procured, Mr Mangoma explained that the Registrar of Labour had determined through a letter that 1st Respondent was part of the 2nd Respondent. There was also no need to have informed the Applicant personally of the exemption certificate. The exemption certificate had been properly procured by 1st Respondent under the provisions of the law. The certificate was not specifically directed at Applicant.It applied to all the employees of 1st respondent at the material time. There was no requirement for consultation of the employees before the exemption certificate was obtained.

POINTS IN LIMINE

The 1st respondent has taken four points in limine.  I shall proceed to address these

seriatim.

On the first point in limine, the 1st Respondent contends that by filing an application for review Applicant has adopted the wrong procedure. It is indeed the correct position that in 2018 when the draft ruling was rendered the law provided for a draft ruling to be placed before the Labour Court for confirmation. This was due to Section 93 (5a) (5b) (5c) of the Labour Act [Chapter 28:01] introduced by Amendment Act 5 of 2015. Under that section Labour Officers were required to refer to the Labour Court their draft rulings for confirmation. With regards Designated Agents by virtue of Section 63 (3a) of the same Labour Act the determination of the Designated Agent was deemed the same as a Labour Officer draft ruling. The determination had to also be placed before the Labour Court for confirmation. Section 63 (3a) in that event read as follows;

(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer

The application for review before the court is premised on Section 92 EE of the Labour Act [Chapter 28:01]. This is a different provision to the provisions in Section 93 (5a) (5b) (5c) which the 1st Respondent has sought to rely upon. For completeness however it ought to

be on record that section 93 referred to by the 1st Respondent has since been amended. It was amended by section 30 of the Labour Amendment Act, 2023. The court’s finding on the point is that the point is meritless in the absence of any specific provision referred to by 1st respondent which stipulated that a litigant was barred from utilising Section 92EE in the face of a draft ruling rendered under the referred provisions in the now amended section 93. The point stands to be dismissed for lack of merit.

On the second point in limine the 1st Respondent has raised the issue of prescription. The point was raised in its Opposing Affidavit. The issue was not pursued in Heads of Argument neither was it pursued at the oral hearing of the matter. The point is deemed to be abandoned by the 1st Respondent. It is accordingly dismissed.

On the third point in limine taken in oral submissions, 1st Respondent contends that the dispute has become moot in view of the introduction of S.I. 33 of 2019. The 1st Respondent position is that even if the Applicant were to succeed in this application whatever is due to him in terminal benefits, would in view of provisions of S.I. 33 of 2019 be negligible. There was therefore no basis for the court proceeding to determine the matter on the merits. The Applicant, in response, denied that the matter had become moot by reason of S.I. 33 of 2019.

The doctrine of mootness that the 1st Respondent seeks to rely upon was discussed in

MDC et al vs Mashavira et all SC 56/2020 where Patel JA (as he then was) stated as follows; The second principle is that mootness does not constitute an absolute bar to the justiciability of the matter. The court retains its discretion to hear a moot case

where it is in the interests of justice to do so – Khupe’s case, supra, at p. 13; J.T. Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC), at 525A-B. This may arise where the court’s determination will have some practical effect, either on the parties concerned or on others, and the nature and extent of such practical effect, or because of the importance or complexity of the issues involved – Independent Electoral Commission v Langeberg Municipality 2001

SA 925 (CC), at para 11. In short, the court may exercise its discretion to hear a moot issue by reason of its significance, practical or otherwise, and the need for an authoritative determination on that issue in the interests of justice.”

In Khupe and Anor vs Parliament of Zimbabwe and Others CCZ 2019 where reference was also made to the SJW the court matter captured the position of the law as follows;

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances

the court’s jurisdiction ceases and the case becomes moot … The question of mootness is an important issue that the court must take into account when faced with a dispute between parties. It is incumbent upon the court to determine whether an application before it still presents a live dispute as between the parties.”

After considering the authorities above, it is the court’s finding that the argument based on doctrine of mootness cannot be sustained. It is apparent that the effect of Statutory Instrument 33 of 2019 was not to render any damages claims moot. Its primary purpose was to redefine how claims denominated in United States dollars were to be valued and paid. Statutory Instrument 33 of 2019 in its content provided that all pre – February 22, 2019 debts sounding in United States dollars were to be converted to RTGS dollars at a 1:1 rate. This was through Section 4 (1) (d) of the same instrument. The section reads as follows;

Section 4 (1) (d)

“that, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one0to-one to the United States dollar; and “

Statutory Instrument 33 of 2019 rather than making claims moot, changed the currency in which payment was to be made and the method of conversion of the debt sounding in USD. It essentially impacted the value of the debt rather than its existence. The Respondent third point in limine clearly stands to be dismissed.

It is however apparent to the court’s that the Respondent submission that on the basis of Statutory Instrument 33 of 2019 the obligation created prior to the coming in of Statutory Instrument 33 of 2019 once converted at the rate of 1:1 as provided by that instrument would result in the amount due to the Applicant being a negligible amount. That argument is a correct summation of the law and how it operates in practice. It is however the court’s view that there may be no need for this matter to go as far as applying the provisions of Statutory Instrument 33 of 2019 for reasons that will be outlined below. It however must be pointed out for completeness that S.I 33 of 2019 was enacted in terms of Section 2 of the Presidential Powers (Temporary Measures Act [Chapter 10:20]. In terms of section 6 (1) of the same Act the Statutory Instrument lapsed after the expiry of 180 days. Its provisions were however re-enacted through Section 22 of the Finance Act (No 2). The fourth point in limine clearly stands to be dismissed for lack of merit.

ISSUES FOR DETERMINATION

There are two issues for determination before the court.

To determine whether or not the Designated Agent in deciding the matter committed a gross irregularly as well as displayed interest in the cause, bias and malice.

The appropriate remedy thereof.

It is clear that in order to determine the first point the court has to necessarily determine the issue as to whether or not 1st Respondent as a council runs school falls under the scope of the 2nd Respondent and whether by extension Statutory Instrument 127 / 2013 is applicable to 1st Respondent. The Applicant submits 1st Respondent does not fall under the scope of the 2nd Respondent. Applicant has placed reliance on the Certificate of Registration of the National Employment Council for Zimbabwe Schools Development Associations and Committee of Zimbabwe (attached as Annexure 1) which clearly shows that its scope of coverage relates to ‘Government Schools.’ The certificate of registration is dated 08 May 2013. Applicant has also in support of his position referred to Statutory Instrument 127 of 2013 which in its citation clearly shows that it is the Collective Bargaining Agreement for the Government Schools Industry. The collective bargaining agreement is covering the period 8 May 2013 to 31st December, 2013. The Applicant position is that he is entitled to be paid his terminal benefits using the applicable salary rate before exemption the relief sought and obtained by the 1st Respondent before the 2nd respondent was incompetent and amounted to a nullity. The Appellant submits that the Designated Agent had no jurisdiction in deciding the matter and then concluding as he did that the exempted salary rate had to be used to calculate the terminal benefits. This was in light of the position that 1st Respondent as a Council School does not fall under National Employment Council for the Government Industry and consequently Statutory Instrument 127 of 2013 does not apply to it. Applicant has referred the court to the decision in the Supreme Court of Zimbabwe in the case of Folly Cornish Pvt LTD and another v Shingirai Tapomwa and others Case no SC26/14 page 10 of the cyclostyled judgement GARWE JA said that

"In the result 1 reach the conclusion that,for the reasons given, the Magistrate Court had no jurisdiction to order the transfer of the property in question into the name of the deceased estate as its value clearly exceeded the monetary jurisdiction of the court. The order by the Magistrate Court was therefore null and void."

The Applicant has also placed reliance on section 82 of the Labour Act which provides as follows;

82 Binding nature of registered collective bargaining agreements

Where a collective bargaining agreement has been registered it shall—

(a) with effect from the date of its publication in terms of section eighty-five, or such other date as may be specified in the agreement, be binding on the parties to the agreement, including all the members of such parties, and all employers, contractors and their respective employees in the undertaking or industry to which the agreement relates;

The Applicant submits, as a last point on this issue, that the process of obtaining an exemption was done in total violation of principles of natural justice section 2A(a)(b)(c) of the Labour Act [Chapter 28:01] as well as tenets of the audi alterem partem rule. The Applicant has referred to an authority in Zimbabwe Textile Workers Union vs David Whitehead Textiles Ltd.

The 1st Respondent position on the other is that although it is a council run school it falls under the scope and coverage of the 2nd Respondent, it is therefore bound by the Collective Bargaining Agreement contained in Statutory Instrument 127/2013. It is under that instrument that it obtained an exemption in 2015 during the period that the Applicant was terminated from employment. The 2nd Respondent also agrees with the 1st Respondent position that council run schools such as 1st Respondent in this case are contracted by Government and fall under its coverage.

The 1st and 2nd Respondent have both relied on the determination of the Registrar of Labour (Annexure B to 1st Respondent papers) in 2014 varying the scope of registration of NEC for Welfare and Educational Institutions (NECWEI) by removing the interests of School Development Committee and Committees in Council Schools. They both contend that 1st Respondent as a council run school is governed by Statutory Instrument 127/2013 which is the instrument providing for the collective bargaining agreement on the issues of wages in the sectors. They both contend the Designated Agent determination that the Applicant’s terminal benefits had to be calculated on the basis of the exempted wage rate was correct. The rate having been lawfully procured by the 1st respondent under the provisions of Statutory Instrument 127 of 2013 on the basis of financial incapacity was the lawful rate to be applied. It is also contended that the Applicant did not personally challenge the exemption process at the material time. He also clearly referred his claim of terminal benefits to the 2nd Respondent resulting in the award that is before the court. The 1st Respondent contends that he cannot now be seen to be challenging the jurisdiction of the 2nd Respondent to grant an exemption at this stage. In other words Applicant cannot be allowed to approbate and reprobate.

EVALUATION

The simple issue before the court is whether or not 1st Respondent falls under the coverage of the 2nd Respondent. It is only upon a determination of this crucial point that the court can then move to the next crucial issue which is whether the 2nd Respondent had a right to grant the exemption application placed before it by the 1st Respondent. The findings on the first issue will necessarily lead to the most important issue as to whether or not the Designated Agent committed a gross irregularity in the process of determining the matter.

To address the first issue the court has perused Annexures “I”. Annexure “I” clearly shows that it is a Certificate of Registration pertaining to the 2nd Respondent. Under paragraph A thereof it shows that a National Employment Council for Zimbabwe Schools Development Associations and Committees of Zimbabwe has been registered in terms of section 59 of the Labour Act. The scope of coverage of the National Employment Council is School Development Associations and Committees in Government Schools. The second document filed is Statutory Instrument 127 of 2013. The title of the instrument shows that it is the Collective Bargaining Agreement National Employment Council Zimbabwe Schools Development Associations and Committees. Under the descriptive part it shows that it is the Collective Bargaining Agreement: Government Schools Industry.

It is clear on the face of both documents as tendered by the Applicant that the scope of coverage of the 2nd Respondent is School Development Associations and Committees in Government Schools. Statutory Instrument 127 of 2013 is also clearly a collective bargaining agreement to be applied in the Government Industry. The 1st and 2nd Respondents have however submitted that the scope of coverage of the National Employment Council has been extended to council run schools. They have both placed reliance on the letter by the Registrar of Labour dated 17 December, 2014. The title of the letter reads ‘variation of scope of coverage’. In the penultimate part of the letter, it reads as follows;

“Determination

On the basis of the observations above, the scope of registration of the National Employment Council for the Welfare and Educational Institutions is varied with the removal of the interests of School Development Associations and School Development Commitees in Council run schools only.”

The court after hearing the parties reserved judgement. In the course of judgement writing an issue came to the attention of the court resulting in the parties being requested by

the court to provide further documentation. The request was made upon the court realising that no documentation had been placed before it to show that the letter by the Registrar had been followed by another document. It was not lost to the court that whereas the Registrar’s letter referred to the removal of the interests of School Development Associations and School Development Committees in Council run schools from the National Employment Council for the Welfare and Educational Institutions (NECWEI), there was nothing to prove that the interests had been transferred to the 2nd Respondent. The 1st Respondent on the 1st of October, 2025 filed a document being the Certificate of Registration of the 2nd Respondent. The certificate shows 8th May, 2013 as the date of registration. My observation is that it is the same Certificate of Registration filed by the Applicant as Annexure “1” save for an insertion that has been made of paragraph B. Paragraph B reads as follows;

B. The scope of registration of the above-mentioned employment council has, in terms of section 61 of the Labour Act [Chapter 28:01] been varied. With effect from the 19th of December, 2019 the employment council is registered for the Schools Development Associations and Committees in Council Run Schools……….

As set out on the reverse hereof, in	Zimbabwe

…………………………………..

N. N. SIMANGO

A/Registrar of Labour

Date…	19 December, 2019……

The import of paragraph B is that it extended the scope of coverage of the 2nd Respondent to cover council run schools. Paragraph B shows that the Registrar acting in terms of the powers granted her by section 61 of the Labour Act varied the scope of coverage. The date of variation however was 19 December, 2019. My reading of section 61 is that it does not require such variation to be gazetted, it requires the variation to be made in the register. Section 61 reads as follows:

61   Variation of registration of employment councils

Whenever the Registrar is satisfied that—

any employment council is not sufficiently representative of the undertaking or industry in respect of which it is registered; or

any branch or section of the undertaking or industry in respect of which an employment council is registered has been included in the registration by oversight or

mistake or that an employment council is not sufficiently representative of any such branch or section; or

the character of any undertaking or industry in respect of which an employment council is registered is such that a particular branch or section thereof should no longer be included in such undertaking or industry; or

it is in the interests of employers, employees or the public for a particular branch or section of any undertaking or industry in respect of which an employment council is registered, to form a separate employment council for that branch or section; or

any branch or section of an undertaking or industry should be included within the undertaking or industry for which an employment council is registered;

he may, after consultation with the employment council, vary the coverage in respect of which the employment council is registered and make the necessary variation in his register․

It is important to emphasise that the Applicant did not respond to the amended Certificate of registration filed by the 1st Respondent. The court however noted the amended Certificate of Registration indicated that the variation had been effected in December 2019.It was the submission by the 1st and 2nd Respondent however is that the variation had been effected in 2014 through the Registrar’s letter. In the court’s considered view however the variation could only have been effected through an amendment to the Certificate of Registration which only occurred on the 19th of December, 2019. The Registrar’s letter in any event whilst indicating the removal from the scope of coverage of NECWEI the interests of council run schools did not indicate the variation of the scope of coverage of the 2nd Respondent to include council run school The facts as presented by 1st Respondent are that an exemption was sought and obtained in 2015.On the basis of the evidence the scope of coverage to include council run schools was only varied in December, 2019. The exemption sought and obtained in 2015 was unlawful as it was obtained at a time when 1st Respondent did not fall under the coverage of the 2nd Respondent. It must follow therefore that the Designated Agent erred in concluding that the exempted salary scale was appropriate to be used. The Designated Agent clearly committed a gross irregularity. In regards the allegations of interest in the cause, bias and malice there was no evidence led to support the claim. The second ground has to be dismissed as unjustified.

The application therefore succeeds on the basis of the first ground of a gross irregularity having been committed. The Applicant in relief has prayed for the setting aside of the draft ruling as well as substitution with an order that the 1st Respondent shall calculate his

terminal benefits using salary scale before exemption and that the 1st Respondent shall pay his terminal benefits within a period of one month. In an application for review, the Labour Court’s power is limited to correcting or setting aside the decision or proceedings based on the procedural irregularities as found by the court. The court does not have the power to step into the shoes of the inferior Tribunal and substitute a new decision on the merits. See Air Zimbabwe Private Limited v J V Mateko and Anor Sc180-20

In the result it is ordered as follows;

1, The application for review succeeds with no order as to costs.

2 The draft ruling by the Designated Agent, Vimbai Sango, dated 24th July, 2018 be and is hereby set aside.