RZM Murowa Diamonds (Pvt) Ltd v Nicho Chingodza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/213/24
HARARE 07 MAY 2024
CASE NO LC/H/228/24
13 MAY 24
RZM MUROWA DIAMONDS (PVT)LTD/
MUROWA DIAMONDS PVT LTD
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/213/24

HARARE 07 MAY 2024

CASE NO LC/H/228/24

13 MAY 24

RZM MUROWA DIAMONDS (PVT)LTD/
MUROWA DIAMONDS PVT LTD

APPELLANT

AND

NICHO CHINGODZA

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant    Mr D. Matawu and Mr G. Nyatsambo (Legal Practitioner)

For Respondent    Mr A. Chingwena (Legal Practitioner)

CHIVIZHE, J:

On the 7th of May, 2024, this court issued an order striking off the appeal with no order as to costs. It was indicated that reasons would follow. These are they.

BACKGROUND FACTS

By way of background, the Respondent was employed by the Appellant as a Flight Lines Engineer. He was employed on the basis of a fixed term contract from the 1st of October 2021 to the 30th of September, 2024. The Respondent’s employment was terminated on the 31st of January, 2023. The Respondent being aggrieved by a perceived unlawful termination referred the dispute to a Labour Officer. The matter was set down for conciliation. The parties however failed to reach conciliation. A Certificate of No Settlement was issued although it does not form part of the record. The Labour Officer then proceeded to hear oral and written submissions from both parties and thereafter he reserved judgment. No specific date was provided by the parties as to the date when he reserved judgment save to state that this was before the promulgation of the Labour Amendment Act No.11 of 2023 (herein referred as the
 “Amendment Act” on the 14th of July, 2023. The Labour Officer then issued a draft ruling on the 17th of October, 2023. The appeal as placed before me, was against the same draft ruling. The appeal itself was filed on the 11th of March, 2024. The appeal was opposed by the Respondent. Heads of argument were filed by both parties and the matter was set down.

POINT IN LIMINE

On the date of hearing, both parties were in attendance along with their legal representatives. Before the matter could proceed into arguments, the court raised a point in limine, mero motu, which is a point of law as to whether the appeal was properly placed before the court, in view of the fact that the decision sought to be impugned i.e. the draft ruling had been rendered after the promulgation of the Amendment Act and therefore amounted to a nullity. Both parties were invited to make submissions on the point.

The Appellants’ position, through counsel, was that it agreed entirely with the court. The Appellant had actually raised the point as ground of appeal no.5. Counsel submitted that the power of a Labour Officer to issue a draft ruling, which was previously under section 93(5)(c) had clearly been curtailed by the Amendment Act. The Amendment Act had repealed the old section 93 and replaced with a new section 93, thus essentially removing the power of a Labour Officer to make a draft ruling. Counsel further submitted that under the new provisions, following the issuance of a Certificate of No Settlement, the Labour Officer is required to consult with a more senior officer and subsequently refer the issue either to compulsory or voluntary arbitration depending on the nature of the case. Specific reference was made to section 93(5) of the Amendment Act. It was Appellants’ contention that the Labour Officer therefore had no legal basis for issuing a draft ruling in October, 2023.

Counsel for Respondent, submitted that the Labour Officer, faced with the situation where he had held a hearing, had then reserved judgment before the Amendment Act, had found himself with an unresolved matter at the relevant time. He had then done the next best thing, which was to issue a draft ruling in October, 2023. It was Counsel’s further submission that his reading of the transitional provisions did not seem to exclude the possibility of a Labour Officer issuing a draft ruling even after the promulgation date of the Amendment Act so long as the matter had been pending before him at the time of the amendment of the Labour Act [CAP 28:01] by the Amendment Act. His submission therefore was that the draft ruling was properly rendered by the Labour Officer in October, 2023.


EVALUATION

The power/competence of a court such as the Labour Court and by extension the Labour Officer is derived from statute. It is not in dispute that the Labour Officers under the old section 93(5)(c) were given power to issue draft rulings. The old section 93(5)(c), in the event reads as follows;

‘(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice —

(c) may if the dispute or unfair labour practice is a dispute of right; make a ruling that, upon a finding on a balance of probabilities that—

(i) the employer or other person is guilty of an unfair labour practice; or

(ii) the dispute of right or unfair labour practice must be resolved against any employer or other person in a specific manner by an order—

A. directing the employer or other party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of moneys, where appropriate;

B. for damages for any loss or prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case may be; whereupon the provisions of subsections (5a) and (5b) shall apply.’

It is common cause that following the promulgation of the Amendment Act, section 93 was repealed. Section 93, having been repealed, it followed consequently that a Labour Officer’s power to issue a draft ruling was curtailed immediately.

The Respondent has however, sought refuge behind the transitional provisions. This is clearly a futile exercise. The transitional provisions which are contained in section 128 of the Amendment Act read as follows;

(1) Where a labour officer made a draft ruling in terms of section 93(5)(c) and for what reason, the draft ruling was not registered with the Labour Court in terms of section 93(5a) and (5b) of the replaced provisions, such draft ruling shall automatically be deemed to be a judgement or ruling of the Labour Officer which for execution purposes shall be registered in the appropriate court: Provided an employer shall have a right of appeal of the Labour Court within 30 days after notice of registration.’

There is no doubt that the provisions in section 128 are meant to be transitional in nature. They are a bridge between the old system and the new system. In introducing the second reading at the time of the **Labour Amendment Bill, 2023**, the Minister of Justice, Legal and Parliamentary Affairs indicated as follows;

“Considering the Supreme Court Judgment of **Isoquant v Darikwa** on the role of labour officers on conciliation proceedings, the Bill provides for expanded powers of the Labour Officers to conciliate or refer to arbitration matters referred to him or her and to issue Certificates of Settlement which can be registered as civil judgments.”

See Senate Hansard 7June 2023, Vol 32 No.35

The transitional provisions were also designed to address the matters that were already pending before the Labour Officers. It is in that vein the provisions as referred to above, outlined that as on the 14th of July, 2023 any draft ruling, which had not been confirmed by this court, or registered in accordance with the **Labour Act** whatever the case may be, assumed the status of a ‘judgment’ or ‘ruling’ which for execution purposes had to be referred either to the Magistrate or High Court depending on the quantum involved. The circumstances in this case clearly show that there was no draft ruling as at the 14th of July, 2023. There was, however, still a matter pending before the particular Labour Officer. The Labour Officer had issued a Certificate of No Settlement. The Labour Officer then took the option to hand down the draft ruling. In so handing down the draft ruling, he was purportedly acting in terms of the now repealed **section 93(5)(c)**. **He issued the draft ruling** on the 17th of October, 2023, three months after the **Amendment Act** had unequivocally repealed the section that gave him the power to issue such a ruling. He clearly had no legal basis to do so.

The Respondent’s Counsel contended that this was the next logical thing the Labour Officer could do in the circumstances of the case. It is indeed a rule of law, that the law operates with certainty. The law was clear in this case as to the new role for Labour Officers. It had to be complied with. The Labour Officer could not operate on the basis of his or her whim. As was submitted by Appellant’s Counsel the Labour Officer in this case, was expected to take the pending case before him to the next level under the new regime. Having issued a Certificate of No Settlement he was therefore required to comply with **section 93(5)** of the **Amendment Act**, which provides as follows;
 (5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice—

(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service; or

(b) may, with the agreement of the parties, refer the dispute or unfair labour practice to voluntary arbitration; or

(c) may refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right; and the provisions of section 98 shall apply to such reference to compulsory arbitration.’

On the basis of the above, it was therefore clear to the court that the Labour Officer having issued a Draft Ruling on the 17th of October, 2023, in the absence of any provision granting him such power, the Draft Ruling so issued amounted to a nullity. It thus automatically followed that the appeal as placed before me, being premised on a nullity, was thus improperly before the court. This was the basis for the court issuing an order striking the appeal off the roll with no order as to costs.
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