Johnson Chirefu and 8 Others v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/59/2025
HARARE, 13 FEBRUARY 2025 AND
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/59/2025

HARARE, 13 FEBRUARY 2025 AND

20 FEBRUARY 2025                           	                       CASE NO LC/H/1114/24

JOHNSON CHIREFU AND 8 OTHERS			APPLICANTS

CITY OF HARARE						RESPONDENT

Before the Honourable G. Musariri  Judge:

For  Applicant			l. Seremani, Attorney

For  Respondent		B.T. Mandima, Attorney

MUSARIRI, J:

Applicants applied to this Court for the reinstatement of an abandoned matter.  The application is provided for by Rule 36 of the Labour Court Rules, 2017. Respondent opposed the application. The basis of the application is laid out in the founding affidavit thus

“2. On 31 January 2023 Applicant filed an appeal in this court against the decision of

the Designated Agent in Case Number  LCH 74/23.

3. The ruling by the Designated Agent cited the Applicant and 8 others.

4. Unbeknown, the Applicants filed an appeal with the same citation of Johnson Chirefu and 8 others.

9. On the 11th September 2024 I realised that the Registrar had dismissed my appeal under case number LCH 74/24 for the reason that the matter was abandoned.

12. The degree of non-compliance is moderate taking into account the circumstances of the case.  The case was removed from the roll on 20 May 2024 since Appellants were not properly cited. Appellants have their case pending before the court and is set down for hearing on the 11th November 2024.The Registrar dismissed the appeal since she was not aware that there was a matter pending which needed to be dealt with before the appeal is determined. Therefore there is a reasonable explanation for the delay and the degree of non-compliance is moderate.

13.The prospects of success upon granting of this application are reasonable and favourable.  There is evidence to show that the matter had not prescribed when Appellants referred the matter to the Designated Agent.  Parties entered into a certificate of settlement to address the grievances of the Appellants and therefore the matter could not be deemed prescribed since it was a continuous unfair Labour Practice as required by the law.”

Applicants prayed for the reinstatement of their appeal.

In oral argument respondent abandoned its point in limine and restricted arguments to the prospects of success of the appeal. Respondent’s opposing affidavit dealt with the issue of prospects rather tersely thus

“6 Furthermore, it is clear from the record that the applicants’ case before the Designated Agent had absolutely prescribed.”

The point was not developed in Respondent’s heads of argument.  However in oral submissions respondent stated that

The claim first arose when applicants were transferred from ZINWA to the Respondent in 2012/3.

It was claimed that applicants were wrongly graded resulting in underpayment of salaries and benefits.

Applicants referred the matter to the Designated Agent in 2022.

Respondent therefore argued that the claim was prescribed at the time it was referred because section 94(2) of the Labour Act (Chapter 28:01 prohibits labour officers from dealing with claims not referred within 2 years from when they first arose.

ANALYSIS

The Registrar of this Court dismissed the appeal LCH 74/23 on 11th September 2024 on the basis that it had been abandoned.  However on the 29th August 2024 the 2nd to 9th applicants had applied under LCH 929/24 for joinder to the appeal.  The application for joinder was still pending at the time the Registrar struck.  Joinder was only granted 11th February 2025.  The joinder case needed to be disposed of before the appeal could be determined.  Therefore applicants have a reasonable explanation for failure to pursue the appeal before it was dismissed by the Registrar.

It emerged during oral submissions that all the applicants are still employed by respondent. Their complaint of underpayment arising from mis-grading has not been resolved.

It is therefore arguable that their complaint qualifies as a continuing labor practice which is

excluded from the prohibition against claims over 2 years old.  At the very least some of their claims are not prescribed since they are receiving the said ‘underpayments’ up to date. Thus this Court concludes that applicants have reasonable prospects of success on the merits.

It is in the interests of justice that the appeal be reinstated so that the matter can be brought to finality by a judgement on its merits.

Wherefore it is ordered that

The application for reinstatement of the appeal referenced  LCH 74/23 be and is hereby granted and

The reinstated matter shall proceed hereafter in terms of the Rules of this Court.

G MUSARIRI

J-U-D-G-E