Ngwarati Kurayi (Designated Agent) N.O V Delta Beverages (Pvt) LTD & Mutsago Edmore Marange

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/229/20
HELD AT HARARE ON 10TH JUNE, 2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/229/20

HELD AT HARARE ON 10TH JUNE, 2020	       CASE NO. LC/H/LRA/170/19

AND 6TH NOVEMBER, 2020

In the matter between:-

NGWARATI KURAYI (Designated Agent) N.O			Applicant

And

DELTA BEVERAGES (PVT) LTD						1st Respondent

And

MUTSAGO EDMORE MARANGE					2nd Respondent

Before the Honourable Mhuri, J.

Applicant 			:	In Person

For 1st Respondent:	:	Mr K. Ncube (Legal Practitioner)

For 2nd Respondent	:	In Person

MHURI J.

A brief background of this matter is as follows;

The applicant who is a Designated Agent filed an application LC/H/LRA/170/19 for the confirmation of a ruling he made in a matter between the 2nd and 1st Respondents.

The application was made in terms of section 93 (5a) and 5(b) of the Labour Act [Chapter 28:01] as amended by the Labour Amendment Act No.5 of 2015.

The application was set down for hearing on the 10th of June 2020 and I reserved judgment after hearing submissions from the applicant and 1st Respondent’s counsel. 2nd Respondent was in default of appearance.

Before I could write the judgment, I directed the parties to file submissions on the issue whether the application was properly before the Court in view of the Constitutional Court judgment of ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO VS MEMORY DARIKWA CCZ 6/2020 (See Judgment No. LC/H/187/2020).

In compliance with my Order, all the parties (applicant, 1st and 2nd Respondents) duly filed their submissions.

It is on the basis of the parties’ submissions that I proceed to consider and determine whether or not applicant’s application is properly before the Court.

Applicant’s submissions were that the application is properly before the Court as he attempted to redress the matter as opposed to redressing it since he issued a certificate of no settlement after conducting conciliations on the 6th and 13th December 2018. He submitted that the issuance of a certificate of no settlement alone is an indication that conciliation was done. To support his submission applicant referred to the words of the Honourable Chief Justice in the Isoquant case (supra) at page 20 paragraph one wherein it was stated,

“It is important that Labour officers appreciate the legal effects of a certificate of no settlement issued to the parties. The issuance of the certificate is evidence that the parties engaged in a genuine process of conciliation with the active assistance of the Labour officer”.

Applicant submitted that, this is what happened in the present case. Applicant also relied on the Chief Justice’s remarks to the effect that;

“a certificate of no settlement as evidence of compliance by the Labour officer with the provisions of section 93 (3) of the Act would be sufficient proof that an attempt has been made to settle the dispute through conciliation. (page 23, paragraph 3 of the Judgment)

It is on the basis of the certificate of no settlement that the draft ruling made under section 93 (5) (c) of the Act is endowed with validity”

(page 31 paragraph 3 of the Judgment.)

Relying on the above quotations, applicant submitted that he attempted to redress the dispute as opposed to redressing it, hence the application was properly before the Court.

First Respondent’s submission was that the applicant’s application was not properly before the Court. Applicant could not attempt to redress a matter and redress it at the same time. It submitted that this is what the Isoquant Judgment points out that applicant could not be a conciliator and seek to redress the dispute between the parties. It referred to page 5 of the record stating that applicant himself admitted by stating,

“Oral conciliation hearings into the matter were held at NEC offices.”

It was 1st Respondent’s prayer that the application be struck off.

Second Respondent’s submissions in summary were that applicant attempted to redress the dispute as it issued a certificate of no settlement and a draft ruling which is to be confirmed by the Labour Court.

It was 2nd Respondent’s submission that the applicant’s application was properly before the Court.

The Isoquant Investments case (supra) states the legal position vis a vis the powers of the Designated Agent in terms of section 63 (3a) of the Act. It equally clearly states the procedures to be followed by a Labour officer in terms of section 93 (3) of the Act and in particular when conciliating disputes between parties.

The judgment shows that proper conciliation must be done following which a certificate is then issued.

The role of the Designated Agent is succinctly stated from page 29 to 31 of the judgment. In a nutshell, he/she either redresses or attempts to redress a dispute. Redressing entails hearing and determining the issues in dispute whereas attempting to redress entails conciliation and issuing a draft ruling.

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it.

He or she cannot do both.”

(page 30 paragraph 4 of the Judgment).

A look at the applicant’s record shows that he did both, ie attempt to redress and redress. The handwritten minutes of the 6th December 2018 by applicant show that he heard the parties. They made submissions before him. It was on the 13th December 2018 that he ruled that the parties had failed to agree which then resulted in the issuance of a certificate of no settlement.

Applicant confirms this position in his ruling dated the 14th April 2019 where he states,

“Dates on which matter was heard 06/12/2018 and 13/12/2018.”

He further states,

“Oral conciliation hearings into the matter were held at NEC Officers Harare on the above mentioned dates.”

“Parties further agreed to file written submissions to augment the oral submissions which they had made during the oral hearings held”.

(underlining is for emphasis).

According to the Isoquant judgment, hearings culminate in a determination.

“conciliation does not contemplate a hearing as envisaged in adjudication. The term “hearing is a familiar term, generally understood to mean a judicial examination of the issues between the parties, whether of law or of fact.”

(page 26-27 of the judgment.)

A determination issued after a hearing is final and is not subject to confirmation by the Labour Court pursuant to section 93 (5a) & (5b) of the Act. Applicant further confirms that what he issued was a determination by stating so in his Draft Order. He states,

“IT IS ORDERED THAT,

1,	The Order / Determination made by NGWARATI KURAYI…….on the 10th April 2019 be and is hereby confirmed.

2,	……………………………………………………………………..”

Notwithstanding the issuance of a certificate of no settlement whose existence is prima facie evidence that conciliation was undertaken, it does not necessarily follow that what applicant did was attempt to redress.

I therefore reject both applicant’s and 2nd Respondent’s submission that what applicant did was attempt to redress the dispute resulting in a draft ruling which would be subject to confirmation by this Court in terms of section 93 (5a) and (5b) of the Act.

To that end it is my finding that the application for confirmation of the applicant’s ruling was improperly before the Court.

In the result, it is ordered that the application be and is hereby struck off as being improperly before the Court.

Gill, Godlonton & Gerrans	-	1st Respondent’s Legal Practitioners