Joshua Marecha v Tredcor Zimbabwe (Private) Limited t/a Trentyre Private Limited

### Preamble
JUDGMENT NO. LC/H/1030/24
IN THE LABOUR COURT OF ZIMBABWE
CASE NO. LC/H/1030/24
GWERU, 12 NOVEMBER 2024
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IN THE LABOUR COURT OF ZIMBABWE		CASE NO. LC/H/1030/24

GWERU, 12 NOVEMBER 2024

AND 14 FEBRUARY 2025

In the matter between:-

JOSHUA MARECHA				     Applicant

Vs

TREDCOR ZIMBABWE (PRIVATE LIMITED)

T/a TRENTYRE PRIVATE LIMITED      		 RESPONDENT

Before the Honourable Judge B.S. Chidziva

Ms R Magundani               -    For the Applicant (Advocate)

Mr M N Nyenya                -      For the  Respondent (Legal Practitioner)

CHIDZIVA J

This is an application for revival of judgment in terms of section 17 of the Labour Court Rules 2017.

BACKGROUND FACTS

The brief background of this matter is that the applicant was employed by the respondent as a finance manager and director for 18 years. He was dismissed from employment in February 2023, he then appealed against the dismissal before one Arbitrator W.T. Pasipanodya who ruled in his favour and ordered his reinstatement without loss of salary and benefits. The respondent then appealed to the Labour Court but the appeal was dismissed, there were subsequent applications for appeal and leave to appeal by respondent however they were dismissed. The applicant then obtained a judgment in his favour under judgment No LCH 327/2019 under case No LCH 15/2018issued by Justice Chidziva on 31 January 2020 and 18 October 2019.

The applicant did not register the same in time and the 3-year period had lapsed and therefore the judgment is superannuated and ought to be revived first before being registered for purposes of enforcement. The judgment remains extant and has not been satisfied as the parties were engaged in filling court applications before this court under case No’s LCH/H/ APP/ 322/20, LCH 133/21, LCH 347/22, LCH 599/23, LCH 912/24 AND SC 395/24 all of which being either struck off the roll or withdrawn. The applicant now has brought an application for revival of judgment in terms of section 17 of the Labour Court Rules 2017.

RELIEF SOUGHT

The applicant seeks the following relief;

That the application for revival of judgment under Judgment No LCH 327/2019 under case No LCH 15/2018 issued by Justice Chidziva on 31 January 2020 and 18 October 2019 be and is hereby granted.

The Judgment No LCH 327/2019 under case No LCH 15/2018 issued by Justice Chidziva on 31 January 2020 and 18 October 2019 be and is hereby revived.

Each party to bear its own costs.

APPLICANT’S SUBMISSIONS

Applicant submits that he has met all the requirements for an application for revival as set out in case law in that;

The Judgment remains extant and unsatisfied.

The Judgment was specific on the amount to be paid.

The order is of some benefit to applicant.

There is a reasonable explanation for the delay in executing the Judgment.

He states that he failed to register the judgment within the three-year period due to a number of technicalities in the matter. For instance, applicant states that the parties were not in agreement on the actual amount to be paid despite the amount being clearly ascertainable in the judgement in question. He further states that parties were again filling different applications before this court under case numbers LCH/H/ APP/ 322/20, LCH 133/21, LCH 347/22, LCH 599/23, LCH 912/24 AND SC 395/24 all of which being either struck off the roll or withdrawn. That this took the parties time and the judgment became superannuated and therefore needs to be revived to enable it to be registered. Applicant also states that he has now come across a recent Supreme Court Judgment which registered a Labour Court Judgment similar to the one applicant intends to register now.

Upon relying on this case of Ruwa Local Board v Joseph Pasura and 47 others HC 5365/22 which judgement was confirmed by the Supreme Court under case SC 181/23. The applicant now wants to apply for registration of the Labour Court as the Supreme Court has set a portion regarding registration of a similar Judgment like the current one. He also states that there is no prejudice that the respondent would suffer as the respondent cannot be enriched by being allowed not to pay and comply with this court’s Judgment which it did not even appeal against or challenge.

RESPONDENT’S SUBMISSIONS

The respondent raised preliminary points to the effect that;

The application is improperly before this court- lack of jurisdiction

Herein respondent states that since the Labour Court is a creature of statute which exercises specialised jurisdiction, it does not entertain all matters brought before it without a specific statutory provision empowering it. Its powers and functions are prescribed in terms of section 89 (1) of the Labour Act (Chapter 28;01) wherein it is not empowered to determine applications for revival of a judgment which has superannuated.  Respondent further states that this is a common law power which can only be exercised by a court of inherent jurisdiction.

The application is incompetent since it is premised on proceedings which were void ab initio

Herein it is stated that the proceedings conducted by the Arbitrator and the Labour officer were in effect an appeal against the decision of the Appeals Officer dismissing the applicants appeal against the findings of guilty by the disciplinary authority and the penalty of dismissal meted out as a result. This is based on the fact that applicant was disciplined and dismissed in terms of section 6 (2) (a) of the National Employment Code of Conduct Regulations, 2006 Statutory Instrument 15 of 2006. Applicant then approached the Labour Officer for conciliation and the latter referred the dispute for compulsory arbitration by the arbitrator after issuing a certificate of no settlement wherein the latter ruled that applicant was unfairly dismissed.

A subsequent arbitral award quantifying the damages due to applicant gives rise to the present proceedings following the judgment of the Labour Court and that all the proceedings had their genesis in the referral of a dispute by applicant to the Labour Officer against the decision of the internal Appeals Officer. The respondent further states that the Supreme Court has already ruled in terms of section 93 of the Labour Act (Chapter28:01), that a Labour Officer does not have any jurisdiction to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct. Hence it is stated that since the awards were issued and the judgment sought to be registered were premised on unlawful proceedings they are therefore void and of no force and effect.

On the merits the respondent avers that applicant does not meet the requirements of an application of this nature as there is no plausible explanation why applicant did not seek registration of the judgement for a period of almost 5 years as opposed to the 3 years alleged by the applicant. Also, that applicant merely avers that there were technicalities but does not explain as to what the technicalities were, also that it is denied that both parties filed cases with this court as the applicant is the one who waisted his own time by filing various cases.

ISSUES TO BE DETERMINED

The issue to be determined is whether or not the application is improperly before this court.

Applicable Law

As has been stated the first and paramount issue for determination is whether or not this court has jurisdiction to entertain the present application. The applicant relying on the case TN Harlequin Luxaire Limited v Mberikwashe Mastvimbo and 14 others SCB 84/22 states that in accordance with the Supreme Court on this case it is settled that no other court has jurisdiction over Labour matters other than the Labour Court. Applicant also contends that the Labour Court has power to deal with any application before it as long as it falls within the ambit of labour disputes.

Section 172 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 states;

(1) The Labour Court is a court of record and consists of—

(a) a Judge President; and

(b) such other judges of the Labour Court as may be appointed from time to time.

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament. (underlining for emphasis)

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.

Section 89 (1) of the Labour Act (Chapter 28:01) provides:

The Labour Court shall exercise the following functions—hearing and determining applications and appeals in terms of this Act or any other enactment; and

hearing and determining matters referred to it by the Minister in terms of this Act; and

referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

appointing an arbitrator from the panel of arbitrators referred to in subsection

(6) of section ninety-eight to hear and determine an application;

(d1)    exercise the same powers of review as would be exercisable by the High

Court in respect of labour matters;

doing such other things as may be assigned to it in terms of this Act or any other enactment.

In the case of in Stylianou Others vs. Mubita & Others: SC 7/17, the court held as follows:

“Whenever the powers of the Labour Court come into question, it must always be borne in mind that it is a creature of statute (Dombodzvuku v CMED (Pvt) Ltd SC 31/12; Nyahora v CFI Holdings (Pvt) Ltd SC 81/14) and therefore can only exercise those powers that are given to it by the Labour Act, its enabling statute. Section 89 of the Labour Act determines the functions, powers and jurisdiction of the Labour Court. The relevant section is s 89(1)(a) which reads as follows: “89 Functions, powers and jurisdiction of Labour Court (1) The Labour Court shall exercise the following functions— (a) hearing and determining applications and appeals in terms of this Act or any other enactment; …”

It is true the Applicants submission that the Labour enjoys jurisdiction over Labour matters in the first instance however it should be borne in mind that such Jurisdiction is dependent on an Act of Parliament conferring such Jurisdiction on the Labour Court. As was rightly put forward by the case law cited by the Respondent that the Labour Courts Jurisdiction cannot merely be implied on such a basis that since the issue was a labour matter automatically the Labour Court would have jurisdiction. In cases where it is not conferred on to it by its enabling statute the Labour court cannot have the jurisdiction to entertain a common law application for revival of judgment.

This was also rightly put by the Supreme Court in the case of National Railways of Zimbabwe vs. Zimbabwe Railway Artisans Union & Others SC 8/05 wherein the court was tasked with dealing with a similar question on whether or not this court had jurisdiction to entertain a common law application for an interdict, the court therein stated;

“… before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application “in terms of this Act or any other enactment”. This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring. … nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo, nor have I been referred to any enactment authorising the Labour

Court to grant such an order.”

It is from this basis that the Labour cannot grant orders for applications that are not provided for in its enabling statute and nowhere in the Labour Court Act nor its Rules has an application for revival of Judgment been given.

DISPOSITION

It is therefore this courts disposition that the Respondents first preliminary point be upheld and that such preliminary point shall serve to dispense of the matter due to the apparent lack of jurisdiction of this court to entertain the present application.

Wherefore it is ordered that,

The application for revival of judgment be and is hereby dismissed.

Applicant to bear costs of suit.

Masasire Law Chambers, Applicant’s Legal Practitioners

Scalen and Holderness Legal Practitioners, Respondent’s Legal Practitioners