National Employment Council for Food and Allied Industries v Registrar of Labour N.O. and Nanavac Investments Trading as Choppies Zimbabwe

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/181/25
HELD AT HARARE 18TH FEBRUARY 2025
CASE NO LC/H/1233/24
AND
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 18TH FEBRUARY 2025

JUDGMENT NO. LC/H/181/25
CASE NO LC/H/1233/24

AND

In the matter between

NATIONAL EMPLOYMENT COUNCIL
FOR FOOD AND ALLIED INDUSTRIES
And

REGISTRAR OF LABOUR N.O.

1st RESPONDENT

And

NANAVAC INVESTMENTS TRADING AS
TRADING AS CHOPPIES ZIMBABWE

2nd RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE.

FOR THE APPELLANT : L.S. GARAKARA
With him C. Makorokotera

FOR THE 1ST RESPONDENT: NO APPEARANCE
FOR THE 2ND RESPONDENT: G. NCUBE

MAKAMURE J

This is an appeal against the decision of the Registrar of Labour, 1st Respondent herein.

There was no appearance on behalf of the 1st respondent. The 2nd respondent opposes the appeal.

The background to this matter is that the 2nd respondent operates retail outlets. It has a number of branches. In some of its branches it operates bakeries.2nd respondent as an entity is registered with the National Employment Council for Commercial Sectors of Zimbabwe (NECCSZ). However, its instore bakeries were registered with the appellant. This was because the NECCSZ did not in its structures accommodate bakeries. With time it included bakeries as part of its constituents. In view of this the $2^{nd}$ respondent applied for it to move its instore bakeries to the NECCSZ. This riled the appellant and it raised a complaint with the $1^{st}$ respondent. The letter containing the complaint does not form part of the record before me.

The $1^{st}$ respondent responded to the appellant along the following lines:

‘RE: VIOLATION OF SECTION 61 SUBSECTION (1) OF THE LABOUR ACT BY CHOPPIES DISTRIBUTION CENTRE

The above matter refers.

Reference is made to your application dated 18 July 2022 where you alleged that Choppies Distribution Centre Bakery section unilaterally withdrew from NEC Food consequently varying their scope of coverage.

Take note that classification disputes are resolved in terms of section 46 of the Labour Act [Chapter 28:01] which states as follows:

46 Matters to be determined by Labour Court

In the event of any dispute as to

(a) The extent of any undertaking or industry;

The matter shall be referred to the Labour Court for determination.

Therefore, the Registrar does not have jurisdiction.

Be guided accordingly.’

The appellant appeals on the following grounds:
 ‘1. The Registrar of Labour erred at law in finding that she has no jurisdiction to determine the classification disputes of any industry or undertaking in general and in particular of the 2nd Respondent, yet section61(1) of the Labour Act [28:01] confers jurisdiction on the Registrar of Labour to deal with such matters.

2. The Registrar of Labour erred at law in finding that the Labour Court is the court of first instance in the classification disputes in terms of section 46 of the Labour Act [Chapter 28:01], where in actual fact section 46 of the said Act deals with registration and accreditation of trade unions, a completely unrelated subject.’

Before the appeal could be considered the 2nd respondent raised preliminary issues. These are that:

(i) the appellant has no locus standi to note the appeal. This was said to be in view of the amendment of s56 of the Labour Act Chapter 28:01 (the Act) brought about by the Labour Amendment Act 11of 2023.

(ii) the appeal was fatally defective for non-compliance with provisions of R11A(4);

(iii) the appellant has no right of appeal; and

(iv) risk of duplicity.

I will deal with them in turn.

(i) The appellant has no locus standi to institute these proceedings as it is a voluntary employment council that ceased to exist upon the promulgation of Act 11/23.


It was argued on behalf of the $2^{nd}$ respondent that the appellant was registered S56 of the Act which section was repealed and substituted by a new section which has different provisions. It was argued that upon the coming into effect of the new s56, voluntary employment councils ceased to exist. It was submitted that the new section did not provide any savings or transitionary provisions for voluntary organizations. The Court was referred to a judgment of this Court (Honourable Chidziva J), **N. Richards and Company Masvingo (Pvt) Ltd v Nyeya & Anor LC/MD/20/24** in support of this submission. It was under the circumstances submitted that the appeal noted is a nullity since it was noted by an entity which ceased to exist. The respondent prayed that since a nullity cannot be brought back to the court in any form the appeal should be dismissed. The other authorities cited in support of the respondent include **ZESA Technical Employees’ Association v ZESA Holdings (Pvt) Ltd SC51/16; Shah v Air Zimbabwe HH 133/10**.

In response it was argued on behalf of the appellant that the repeal and substitution of s56 did not expressly state that it had the effect of rendering an employment council formed under the old section a nullity. It was further argued that the new section does not have retrospective effect. In support of this argument the Court was referred to the cases of **Nkomo and Anor v Attorney-General and Others 1993 (2) ZLR 422 (S); Glens Removal and Storage (Pvt) Ltd v Patricia Mandala CCZ 6/17; Phillips v Eyre [1870]LR 6 QB1**.

The old s56 provided as follows:

**’56 Voluntary employment councils**

Any-


(a) Employer, registered employers organization or federation of such organizations; and

(b) Registered trade union or federation of such trade unions; May, at any time, form an employment council by signing a constitution agreed to by them for the governance of the council, and by applying for its registration in terms of section fifty-nine.”

The new s56 provides as follows:

‘56 Formation of employment councils otherwise than under section 57 and admission of new parties to employment councils

(1) in this section—

“employer member” means an employers organisation or federation thereof; “employee member” means a trade union or federation thereof.

(2) The employment councils formed under this section shall be governed by this Act in every respect as if such employment council is a statutory employment council.

(3) Any—

(a) employer, registered employers organisation or federation of such organisations; and

(b) registered trade union or federation of such trade unions; may, at any time, form an employment council by signing a constitution agreed to by them for the governance of the council, and by applying for its registration in terms of section 59.

(4) There shall be parity of votes as between the employer members and the employee members of an employment council.
 (5) The votes of—

(a) an employer member of an employment council in relation to the other employer members of the council shall be allocated proportionately according to the number of members of the employer member;

(b) an employee member of an employment council in relation to the other employee members of the council shall be allocated proportionately according to the number of members of the employee member:

Provided that—

(i) if the membership of the employee member is less than the percentage (specified in the constitution of the employment council) of all the membership of the employee members of the employment council, the employment council must in its constitution allocate a specified fraction of a vote to the employee member concerned;

(ii) if the membership of the employer member is less than the percentage (specified in the constitution of the employment council) of all the membership of the employer members of the employment council, the employment council must in its constitution allocate a specified fraction of a vote to the employer member concerned.

(6) The distribution of votes in the employment council amongst the trade unions and the employers organisations shall be subject to review every twelve months.

(7) If a dispute arises relating to the number of votes allocated to a trade union or employers organisation, it shall be referred to the Registrar for determination.


(8) Any trade union or employers organisation that is aggrieved by a determination issued by the Registrar in terms of subsection (4) may appeal to the Labour Court.

(9) Where the membership of a particular trade union or employers organisation is not adequate for it to be allocated a seat, it may, at the discretion of the employment council be admitted as an observer in employment council meetings.’

In considering this issue, it is clear that the new provisions of s56 are wider. It was argued on behalf of the appellant that the new provisions do not expressly state that what was formed in terms of the old section is a nullity. It was also argued that the new provisions do not have retrospective effect. I agree that the provisions do not have a retrospective effect. However, the appreciation that the provisions do not expressly state what was created in terms of the previous provisions is a nullity shows that the appellant is aware that provisions of s56 as amended are different from the repealed provisions. As correctly submitted on behalf of the respondent, the appellant has not distanced itself from being a voluntary employment council. The appellant while appreciating that the provisions do not expressly outlaw its existence, has also not indicated whether it has since complied with the provisions of the new section. If it has, that has not been stated. If it has not then it is not compliant. This means that it is not properly before the Court. I have had a chance to consider what my sister said in the Nyeya case (above). In her judgment voluntary National Employment Councils ceased to exist after the promulgation of the Labour Amendment Act 11 of 2023 which repealed and substituted s56. I agree. This is clear from a reading of the section which provides in part that: ‘(2) The employment councils formed under this section shall be governed by the Act in every respect as if such employment council is a statutory employment council.’(my emphasis). ‘This’ section simply means provisions of the section in its amended form. This means that the old section has obviously ceased to exist. As correctly submitted by Mr Ncube in paragraph 12 of his heads of argument where reference was made to the **ZESA Holdings** case (above):

‘It is trite that where a non-existing entity institutes proceedings, the proceedings are a nullity because there would be no applicant or plaintiff as the case may be.’

I am therefore persuaded to agree with Mr Ncube that the applicant has got no *locus standi* to institute these proceedings. This means that there is merit in the preliminary point raised. It is upheld. On this basis alone the appeal should be struck off the roll.

(ii) **The Notice of Appeal is fatally defective for want of compliance with the rules.**

The appellant did not comply with provisions of r11A (4). This is not disputed. The rule provides:

‘(4) Every notice of appeal or application shall provide an alternative email address for the purposes of service or delivery of pleadings.’

The rule is couched in peremptory terms. It has no provision for the litigant to exercise his or her discretion. It is trite that failure to comply with mandatory terms of the rules renders the proceedings a nullity. **Econet Wireless (Pvt)Ltd v Trustco Mobile (Pty) Ltd & Anor SC43/13.** The submission on behalf of the appellant is that this is a legal technicality which does not dispose of the case. It is true that it is undesirable for labour disputes to be resolved on technicalities. However, where a provision is mandatory it must be complied with. There is a reason why the legislature saw it fit to make it mandatory. This means that this preliminary issue has merit. It is upheld.

(iii) **The Appellant has no right of appeal.**

Appeals to this Court are provided for under s92D. The appellant has not demonstrated the basis of the appeal. Maybe if the letter dated 11July 2022 had been part of the consolidated record the basis of his application would have been understood. In any event the Court has already found that the appellant is non-existent. It can therefore not have a right of appeal. This preliminary point has merit. It is upheld.

(iv) **The risk of duplicity of proceedings and conflicting judgments of the Court.**

The attention of the Court was drawn to the matter Admire Mupawaenda and Others v Chopies Zimbabwe. Judgment Number LC/MT / 57/24, Case Number LCB 141/24. This is a matter which this Court (Hononourable Hove J) dealt with and made an order whose results are not yet known. As the citation shows, 2\textsuperscript{nd} respondent is one of the parties.

It is true that the appellant is not involved in that matter. However, the 2\textsuperscript{nd} respondent is involved and the nature of the dispute is similar to what is before the Court. There is therefore a real risk that if the Court reaches a different conclusion from the other matter, that will be a disservice to the 2\textsuperscript{nd} respondent. That is undesirable. It is also avoidable. S124 of the Act protects against multiple proceedings. That is why it is necessary for the court to know of earlier proceedings which may have a bearing on the proceeding under consideration. The respondent has referred the Court to the case of **Jacob Bethel Corporation v Emmanuel Chikuya SC 48/19**. The remarks of Makarau JA (as she then was) are apt:

“This matter demonstrates the challenges which emerge from parties pursuing the same issue before different judges who may each be seized with different aspects of their appeals. The result is divergent judgments from the same court.’ Jacob Bethel

Corporation .(above)

I respectfully, associate myself with those remarks. The divergent views can be avoided or they can be made with full knowledge of what the other court would have said on a similar dispute. There is therefore wisdom in putting the matter on hold pending determination of the earlier dispute. This only means that since one of the parties is aware of the other proceedings, the time limit to wait for its determination can be managed without unduly delaying the latter. This however will not be necessary in the present matter in view of my findings on the other three preliminary issues.

I have found merit in three out of the four preliminary points raised. Each of them would on its own have disposed of this matter. In the result, the matter not being properly before the Court it is ordered that:

The appeal be and is hereby struck off the roll with costs.

SINYORO AND PARTNERS, APPELLANT’S LEGAL PRACTITIONERS.

CALDERWOOD, BRYCEHENDRIE & PARTNERS, 2ND RESPONDENT’S LEGAL PRACTITIONERS.


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