Mercy Dare N O v Medix Self-Care Pharmacies

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/798/2016
HARARE, 4 NOVEMBER 2016 &
CASE NO LC/H/LRA/117/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/798/2016

HARARE, 4 NOVEMBER 2016 &				CASE NO LC/H/LRA/117/2016

16 DECEMBER 2016

MERCY DARE N O							        APPLCANT

MEDIX SELF-CARE PHARMACIES				        RESPONDENT

Before the Honourable G Musariri, Judge

For the Applicant      Ms M Dare (Applicant)

For the Respondent   Mr Z Lunga (Attorney)

MUSARIRI J:

The applicant, in her official capacity as a Labour Officer, made a ruling at Harare date-stamped the 3rd June 2016. She ordered the respondent to pay Mr Eury Maphosa (claimant) an amount of US2 300-00 as compensation for loss of employment. The applicant then applied to this court for confirmation of her ruling. The respondent opposed the application.

The material facts of the matter are largely common cause. The claimant worked for the respondent. By letter dated the 7th August 2015 the respondent terminated the employment contract. The relevant portion of the letter read as follows:

“The termination is in terms of your employment contract where either party can terminate the contract by giving three (3) months’ notice.”

Thereafter the complainant filed a claim against the respondent for “outstanding terminal benefits”. The applicant dealt with the matter and made the aforesaid ruling. The ruling is based on the provisions of section 18 as read with section 4 of the Labour Amendment Act No 5/15 (hereafter called the Amendment).

The respondent filed Heads of Argument date stamped the 31st October 2016. The relevant paragraph read thus:

“2.1	There is only one issue for determination before this court namely whether or not the Labour Officer was correct in finding that the respondent is obliged to pay compensation for loss of employment to the employee arising out of the termination of the contract by notice on 7 August 2015.”

The respondent’s case was that at the time of termination the Amendment had not been promulgated. It was promulgated on the 26th August 2015 under Government Notice 237A/15. The Amendment provides for a mandatory termination package even where an employee has been terminated on notice. Section 18 of the Amendment back-dates the application of the Amendment to the 17th July 2015.

The respondent’s argument concluded that:

“4.1	The weight of authority on retrospective taking away of vested rights is clear. When properly and fully considered, this matter falls into the class of matters in which this court is bound to reject an interpretation of law that affects retrospectively substantive rights of the employer.

4.2	The application for confirmation of the Labour Officer’s ruling must therefore be dismissed….”

The respondent relied upon the provisions of section 17 (1)(b) of the Interpretation Act [Chapter 1:01] which provides that the repeal of a statute shall not:

“affect the previous operation of any enactment repealed or anything duly done or suffered under the enactment so repealed.”

I agree with the respondent’s attorney only as far as the Interpretation Act is read as creating a presumption against retrospective operation of statutes. There is clearly a conflict between the Act and the Amendment. The Amendment, in clear and unambiguous language, provides for its retrospective operation. How does one resolve the apparent conflict? In my view the answer is that statutes generally rank pari passu. In other words the Act cannot prescribe what the Amendment should cover. Furthermore, the Amendment being the later enactment, is read as repealing prior inconsistent enactments. I do not go so far as to say the Amendment repealed the Act. It simply provides for retrospectivity of its provisions. If its language was ambiguous then the presumption against retrospectivity might carry greater force. However, as I noted above, the language is both clear and unambiguous. Thus the

retrospectivity carries the day. Accordingly the respondent’s opposition to the ruling in casu cannot be sustained.

Wherefore it is ordered that:

The ruling by the applicant be and is hereby confirmed;

The respondent shall pay Eury Maphosa an amount of US$2 300-00; and

The respondent shall pay costs of suit in the sum of US$30-00.

G Musariri

J U D G E