Ronald Chirochangu v Zimbabwe Investment and Development Agency & Anor (Office of the President and Cabinet)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 22 MAY 2025
JUDGMENT NO. LC/H/210/25
CASE NO. LC/H/289/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 22 MAY 2025

AND 10 JUNE 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/210/25 CASE NO. LC/H/289/25

RONALD CHIROCHANGU	APPLICANT AND

ZIMBABWE INVESTMENT AND

DEVELOPMENT AGENCY	FIRST RESPONDENT

OFFICE OF THE PRESIDENT AND CABINET	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Advocate T. Zhuwarara

For First Respondent	Ms. N. Mangoi No Appearance for Second Respondent

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92 F(2) of the Act as read with Rule 43 of the Labour Court Rules, 2017.

Applicant approached the Labour Officer for relief in terms of section 93 of the Act. First Respondent raised a point in limine to the effect that the matter was now prescribed, and in terms of section 94, the labour officer could not proceed to entertain the matter. A Certificate of No Settlement was issued and the matter referred to arbitration. The Arbitrator determined that the labour officer was not empowered to conciliate on the matter of prescription. First Respondent took up the matter with this Court. This Court, in a judgment rendered on 3 March 2025, determined that the findings of the Arbitrator were not correct and proceeded to set aside those proceedings. Appellant is disgruntled with this outcome and intends to approach the Supreme Court on appeal.

Applicant’s grounds of appeal are as follows:

By making a finding that Labour Officers could make determinations at Conciliation stages for disputes referred in terms of Section 93 of the Labour Act, the Court grossly misdirected itself.

The Court grossly erred by failing to make a finding that any legal or factual contentions arising during Conciliation were the sole adjudicatory preserve for the Arbitrator to make determinations and not for the Labour Officer as a conciliator.

The Court grossly misdirected itself by ordering a remittal of the matter for a hearing de novo, when it could not competently grant that relief on appeal.

Submissions by the Parties

At the commencement of the oral submissions, the Court inquired of Advocate Zhuwarara whether there was still an insistence in citing the Second Respondent and after some time indicated that there was no longer such insistence.

Advocate Zhuwarara submitted that such matters as the one before the Court were a result of the unnecessary extension of the legislative pen by the Legislature. He added that this had led to various decisions coming from the Constitutional Court, Supreme Court and the Labour Court regarding the jurisdiction of the labour officer. He stated that the jurisdiction of the labour officer continued to give birth to disputes in the employment field. Advocate Zhuwarara submitted that the first port of call was whether the grounds of appeal raised points of law and that the second issue was whether there were prospects of success on appeal. He added that all these issues were canvassed in precedents some of which had been referred by the Court in its judgments.

Advocate Zhuwarara further submitted that the present prospective appeal could not be characterized as hopeless. He argued that in previous decisions, the Supreme Court has stated that the labour officer has no jurisdiction to pronounce on the merits of a case and once a labour officer pronounced on the issue of prescription, a litigant could therefore not approach an arbitrator in the event of such ruling. Advocate Zhuwarara further submitted that by making a finding that a matter was prescribed, this amounted to a judgment and went beyond fact-finding and conciliation. It was further argued that the result was the litigant affected would not have any way forward. In this regard, it was argued that the Legislature had reduced the labour officer to a registrar of disputes.

Advocate Zhuwarara argued that the Constitutional Court of Zimbabwe had resolved the legislative conundrum through judgment and it was therefore proper that the Supreme Court be requested to outline, with clarity, whether a labour officer, in the circumstances rule on the issue on prescription as provided in section 94 without violating the provisions of section 93. The heads of argument are replete with precedent on the requirements in an application for leave to appeal to the Supreme Court. Apart from the Isoquant Case, the heads made reference to the following cases:

Dzenga v GMB & Anor SC 84/23

Mabeza v Sandvik Mining SC 91/19

Ministry of Foreign Affairs v Jenrich & Ors 2018 (2) ZLR 683 (S)

Vundla & Anor v Innscor Africa Bread Co. SC 14/22, among others.

In response, Ms. Mangoi stated that she would abide by the documents filed of record. She submitted that Applicant’s prospective grounds of appeal did not comply with section 92 F (2) of the Act. She stated that the issues that were being raised by the Applicant had already been dealt with by the Supreme Court and thus they were not novel issues for determination. The law on the issues was thus known. Ms. Mangoi submitted that section 93 of the Act could not be read in isolation as it was not a standalone provision and therefore should be read in tandem with other sections in the Act.

Ms. Mangoi further argued that section 94 was clear that a labour officer could not entertain a matter after two years had expired and the instruction was directed at the labour officer and not at any other official. She argued that the Arbitrator could not make that decision on behalf of a labour officer. Ms. Mangoi further argued that the Arbitrator’s jurisdiction was predicated on the labour officer having validly and properly referred the matter to arbitration. She stated that it followed then that, without having established whether a matter is prescribed or not, a labour officer could not proceed to conciliate over the matter. She further argued that the question of whether or not a matter is prescribed is in the realm of the labour officer. The heads of argument referred to the following authorities.

Dzenga v Grain Marketing Board & Anor SC 84/23

Muzuva v United Bottlers 1994 (1) ZLR 217 (S)

Sakarombe v Montana Carswell Meats SC 44/20

Vundla & Anor v Innscor Africa Bread SC 14/22

Bonde v National Foods Limited SC 9/24, among others.

ANALYSIS

In Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20, MAKARAU JA (as she then was) simplified the appellate procedure to the Supreme Court thus:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue or issues raised in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeals from the court a quo is therefore fairly narrow.”

I will begin with the third prospective ground of appeal which should not detain the Court. The averment in that ground of appeal is that the Court erred by ordering a remittal of the matter when it could not competently grant that relief on appeal. I note that Advocate Zhuwarara did not

motivate this ground of appeal during oral submissions. However, in the heads of argument, Applicant cited the case of Eastern Highlands Plantations v Mapeto and 136 Others SC 143/14 as authority for the contention that the Court did not have the jurisdiction to remit the appeal. What should be observed is that the section in question does not prohibit the Court from making a remittal. I am inclined to go along with the Respondent’s cited case in Mackenzie v Rio Tinto Zimbabwe SC 89/04 where it was stated as follows:

“An appeal court or a body vested with authority to hear an appeal has, at least, the jurisdiction to allow an appeal, dismiss an appeal, or remit the matter for a re-hearing. The jurisdiction to do any of the above is inherent in the authority to hear an appeal. Where the lawmaker does not wish the appeal court or authority to have any of these above options the language of the statute has to be explicit. Thus, in the absence of explicit language or implication from the language that an appeal authority cannot remit a matter for a hearing de novo, the appeal court or authority has such jurisdiction. I do not accept that the words ‘shall be final’ mean that the designated authority cannot remit a matter for a hearing de novo. In the present case the designated authority was satisfied that the decision of the respondent was a default judgment reached in the absence of the appellant and, therefore, not on the merits. He also was satisfied that the committee that adjudicated on the matter was not properly constituted. In those circumstances the proper course to follow was to remit the matter for a hearing de novo. The decision of the designated authority in this case cannot be faulted.”

The Eastern Highlands Case referred to by Applicant did not seek to set aside the Mackenzie v Rio Tinto case or distinguish it. It is trite that where a statute intends to amend the common law in some respect, it should be explicitly provided in that statute. I have already made the observation that section 89 (2) (a) (i) does not prohibit such remittals. It is thus my view that the ground of appeal lacks merit.

The first and second prospective grounds of appeal will be considered at the same time. It is correct that section 93 deals with the powers of a labour officer in attending to labour disputes. It is also correct to observe that the Isoquant Case dealt extensively with the jurisdiction of the labour officer in so far as the provisions of section 93 are concerned. It should also be noted that section 93 was amended in 2023 after the issuance of the Isoquant judgment and that the mandate of the labour officer emanating from the amendment of in 2015 was clearly altered. Whilst the 2015 amendment of the Labour Act provided for the process of confirmation of draft rulings, the 2023 amendment went back to the arbitration route. This is shown by the amendment of section 93 (2) which now provides:

“If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing, which shall be registrable with the relevant court for enforcement upon default. The certificate of settlement to enable enforcement shall be

issued by the labour officer and it shall have the effect for the purposes of enforcement, of a civil judgment of the appropriate court.”

What is evident from the above amendment is that the labour officer has been clothed with the power to issue a document which, for the purposes of enforcement, amounts to a civil judgment. The labour officer’s document now amounts to a ‘civil judgment’. It was Advocate Zhuwarara’s contention that a labour officer cannot issue a ‘judgment’. The landscape has indeed changed.

Another example lies in the amendment to 63 of the Act. It now provides as follows:

“(3b) Subject to subsection (3c) and (3d) where a designated agent is authorized to redress any dispute or unfair labour practice in terms of subsection (3a), no labour officer shall have jurisdiction in the matter during the first thirty days after the date when the dispute or unfair labour practice arose, but a labour officer may assume such jurisdiction (and exercise in relation to that dispute or unfair labour practice the same powers that a designated agent has in terms of this section) after the expiry of that period if proceedings before a designated agent to determine that dispute or unfair labour practice have not earlier commenced.”

The above provisions are unambiguous. They have allotted to the labour officer the same powers to deal with disputes or unfair labour practices as provided to designated agents in terms of section

63. This is testament enough that the Legislature clearly intended to give to the labour officer more muscle to deal with the disputes or unfair labour practices.

I now turn to what was stated in the Court’s judgment in relation to the Isoquant judgment. The pertinent quotation is as follows:

“Although the Act does not require a party to allege a cause of action, it is necessary to allege a dispute within the jurisdiction of the labour officer. The following jurisdictional facts must be asserted or must appear when referring a dispute in terms of s 93 (1) of the Act to a labour officer:

…

…

f. the referral should be timeous (s 94 (1) of the Act)

The jurisdictional facts must actually exist. They cannot be created by consent of the parties.”

The Isoquant judgment clearly refers to the fact that the dispute must be within the jurisdiction of the labour officer. In the body of this Court’s quotation, the Superior Court specifically refers to section 94 (1) of the Act in that the dispute must have been referred timeously. The issue of the labour officer’s jurisdiction as to whether a matter has been referred timeously to him or her cannot be determined by the arbitrator as suggested by Advocate Zhuwarara. It is an issue to be determined by the labour officer as to whether the matter has been ‘properly referred’. The

Superior Court clearly makes reference to that fact in the judgment. The indictment in section 94

(1) of the Act is against the labour officer and not the arbitrator. The section has remained unamended for a long time. One has only to refer to Act 5 of 2015 which removed arbitration from the equation and introduced the process of confirmations of draft rulings. The arbitrator was left in the cold. The labour officer was enjoined to arrive at a conclusion as to whether the dispute or unfair labour practice was ‘properly referred’. The route of confirmation of draft rulings clearly required the labour officer to make that determination.

It is my considered view that a reading of section 94 (1) should not lead to any ambiguity as to who is being addressed in the instruction by the Legislature. In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18, it was held as follows:

“Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context, it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

A reading of the provision in section 94 (1) shows that the language used is straightforward in that the instruction is given to the labour officer and no one else. The section does not require any aids in interpretation.

Advocate Zhuwarara formulated the view that if a labour officer were to make such a decision as provided in section 94 (1), what would happen to the dispute or unfair labour practice. The clear procedure is that where a labour officer declines jurisdiction, he/she does not issue a Certificate of No Settlement. It is trite that a Certificate of No Settlement is evidence of conciliation having taken place. Section 93 (6) (b) provides relief to litigants in circumstances where a labour officer has refused or declined to issue a Certificate of No Settlement. I also opine that with the promulgation of Act 11 of 2023, the decision in the Isoquant Case has been equally amended in terms of the statute. The case becomes relevant in so far as guidance to conciliation is concerned. The

Legislature has amended the Act to give to the labour officer certain recognizable powers in dealing with disputes or unfair labour practices as already demonstrated.

It is thus my considered view that the two prospective grounds of appeal do not have any prospects of success.

In the result, the following order is appropriate.

The application for leave to appeal to the Supreme Court, being devoid of merit, is hereby dismissed.

Appellant to meet Respondent’s costs.

Mafongoya and Matapura Legal Practice-	Applicant’s legal practitioners Messrs Matlaw Attorneys At Law-	Respondent’s legal practitioners.