Simbarashe Bruce Kutiwa v Harare Municipal Medical Aid Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 6TH JANUARY, 2024
JUDGEMENT LCH/43/24
REF CASE
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 6TH JANUARY, 2024 AND

8TH FEBRUARY, 2024

JUDGEMENT LCH/43/24 REF CASE LC/H/1040/23

SIMBARASHE BRUCE KUTIWA	APPLICANT

And

HARARE MUNICIPAL MEDICAL AID SOCIETY	RESPONDENT

Before the Honourable Kachambwa J, Judge;

For Applicant:	E. Chigova with him

Tecla Barangwe (Trade Unionist) For Respondent:	W. Chishiri (Legal Practitioner)

KACHAMBWA, J:

Judgment (on preliminary Point) Incorporating LC/H/1041/23).

The Application

This is an application for condonation for late noting of an appeal. The applicant intended to appeal the decision of the employer that was made in terms of an employment code, Statutory Instrument 93 of 2019 Collective Bargaining Agreement for the Medical and Allied Industry.

The Applicant was charged, tried, convicted and a penalty of dismissal imposed. His appeal at the workplace failed. He delayed in noting his appeal

1

to the Appeals officer’s upholding of the decision of the disciplinary committee hence the present application.

Opposition To The Application

The Respondent opposed the application for condonation. It raised a preliminary point to the effect that an appeal from a decision at the workplace no longer lies with the Labour court in view of the amendment of section 105 of the Labour Act [Chapter 28:01]. The amendment  by  the  Labour Amendment No. 11 of 2023 was said to have altered the law as laid down in Tafadzwa Sakarombe & Anor v Montana Carswell Meats (Pvt) Ltd SC 44/2020. In that case the Court held that:-

“Inmyview,theprincipleemergingfromalltheauthoritiesreferredto                     abovecanbesummarisedbythestatementtotheeffectthatalabour                         officerdoesnothaveanyjurisdictionunderS93toentertainamatter                                       once  a  determination on  the  merits   has   been  made  through a disciplinaryprocessunderaregisteredcodeofconduct.Itisclearthat                  theLabourofficerpresidedoveramatterwhichshedidnothaveany                                      jurisdiction. As    stated     in    Watyoka’s case    (supra) once    there      is    a determination  on  the  merits  of  a  dispute  a  labour  officer  has  no jurisdictionundersection93oftheAct.”

The Respondent argued that the amendment was in fact a specific reaction to the Sakaramombe case. It was meant to correct the situation and avoid direct appeals to the Labour Court. It was further argued that since the application was filed after the amendment came into law, the appeal would have to be in line with the amendment. It means that the appeal would have to be to the labour officer. To that end the application had to be before the labour officer and not the Labour Court.

Applicant’s Response To The Preliminary Point

The Applicant’s response was that firstly the Sakarombe case (supra) still applied. Secondly since the condonation to make the present application was given before the said amendment came into effect the application is not affected. Thirdly the appeal was not provided for in the Labour Act and therefore it falls under section 92D of the Labour Act which provides for appeals not provided for in the Act. As such it was not affected by the amendment.

The Applicant also argued that the amendment was not compulsory since it says “may” instead of “shall”. Therefore it was permissible and not directive. The proviso reads:-

“Provided that   at    the    conclusion  by    such  proceedings and notwithstandinganythingtothecontraryinanemploymentcode,at                                    theinstanceofanypartyaggrievedbythoseproceedingsmayappeal                      toalabourofficerwithin30daysoftheconclusionoftheproceedings                    whereupontheLabourofficershallattempttoconciliatethedisputein                   termsofsection93orexerciseanyotherpowerprovidedforinthat                                                                section”.

This word “may” was said to refer to a choice to appeal to a labour officer or to the Labour Court. To this argument the respondent’s position was that the “may” referred to the choice of appealing or not appealing and not to the forum choice.

There was an unclear attempt to say that the appeal is in terms of section 92D of the Act where the appeal is not provided for elsewhere in this Act and hence it should lie to the Labour Court. This line was not sustainably argued because the court sought clarification on what it really meant in view of the fact that the argument on the other hand was that it is in section 101(5).

Analysis

It appears that the answer is on the interpretation of the amendment. What is the purpose of this amendment?. What mischief was it called to attend to?. Does it have any effect on the Sakarombe case (supra)?. How could the Applicant have direct appeal to the Labour Court when others have to go through the labour officer first as a court of appeal?. Why should he be treated differently?. Certainly the amendment is providing an appeal route for matters after the code has been exhausted so why should the Applicant be exempt?.

The amendment to section 101 (5) is a reaction amendment to the Sakarombe case supra. Before this case matters had been taken on “appeal” to the labour officer after the hearings at the workplace. That would in turn enable the labour officer to make a ruling that would be appealable to the Labour Court and would also be capable of enforcement. All this was stopped by the Sakarombe case. So now the parties were left with having to appeal directly to the Labour Court. But this does not appear to have been the intention of the legislature in the first place. Neither was it expected by the litigants nor the Courts. That is why all along nobody had questioned the “appeals” to the labour officer. It seemed natural, obvious, and consequential. The Sakarombe case upset the system and the amendment was a reactionary amendment. It came to restore order so to speak. Without the amendment section 101(5) spoke of taking power away from the labour officer. With the amendment the labour officer was given power to hear appeals

“notwithstanding anything to    the   contrary in    an    employment code”. The provision now reads:-

“Notwithstandingthispart,butsubjecttosubsection(5) no                                 labourofficershallinterveneinanydisputeormatterwhichis                               or  is  liable   to   be   the   subject  of   proceedings   under   an employment code, nor      shall     he     intervene in     any      such proceedings.

Provided that    at      the    conclusion of      such    proceedings and notwithstanding anything    to       the       contrary in       an       employment code  at   the  instance of   any   party   aggrieved by   those proceedingsmayappealtoalabourofficerwithin30daysof                                                         the     conclusion of     the     proceedings whereupon the     labour officer  shall   attempt to   conciliate   the  dispute   in   terms   of section93orexercisedanyotherpowerprovidedforinthat                                                         section”.

The amendment has introduced an appeal to the labour officer once the proceedings at the workplace in terms of the employment code are finalised. It has therefore cut out any direct appeal to the Labour Court. The word “may in the amendment is referring to the choice to choose to appeal. It would be ridiculous if it were to refer to the choice of approaching the Labour Court or the labour officer.

The Applicant also argued that his matter started when he applied for condonation and therefore must not be affected by the amendment which came after that application. That argument is untenable. The case is considered at the point of filing. When one files his/her case is when the law at the time applies. Otherwise litigants would just make preliminary proceedings just to avoid any new law on the way. Unless a statute clearly provides for exemption the law at the time of filing should apply.

Interpretation of section 101(5)

The parties have haggled over the effect of the amendment of section 101(5). This is basically an issue of interpretation of statutes. No-one has referred to rules of interpretation and I think this is so because we are not facing a serious issue of an unclear provision. This is a simple and clear provision. It is capable of understanding from both the basic tenets of interpretation and from the purposive angle. As such the words must be given their clear meaning which

tell us that there is an appeal to the labour officer. As MATHONSI JA says in Zesa Holdings (Pvt) Ltd vs Obson Matunja SC 73/22 at page 10 of the cyclostyled judgment;

“In      any       interpretative endeavour, the     basic       principle    of      statutory interpretation which   has   been   hallowed    by   repetition    in   this jurisdictionovermanyyears,isthatthewordsusedinastatutemust               beaccordedtheirprimaryandgrammaticalmeaning.Onlywhendoing              sowouldleadtoaglaringabsurdityorinconsistencywiththerestof                                    thestatuteshoulditnotbedone”.

This same observation is also made in the case of Chegutu Municipality v Manyara 1996 (1) ZLR 262 (S) at 264 D-E wherein the count said that;

“Thereisnomagicaboutinterpretation.Wordsmustbetakenintheir                                                      context. The grammatical and ordinary sense of words is to be adheredtoasLordWensleydalesaidinGreyvPearson(1857)10ER                            1216 at 1234 “unless that wouldlead tosome absurdity, or some                              repugnanceorinconsistencywiththerestoftheinstrumentinwhich                                       case  the  grammatical and   ordinary sense of   the  words   may   be modifiedastoavoidthatabsurdityandinconsistency,butnofurther”.

Thus the amendment in question clearly tells us that there is an appeal to the labour officer. It is the choice of the aggrieved party to appeal. This amendments’ purpose was to counter the finding by the court that there was no such appeal in terms of the provisions then applicable. There is no magic here.

Disposition

From the above analysis and conclusions, there is an appeal to the labour officer. There is no direct appeal to the Labour Court for the Applicant. Accordingly the point in liminemust be upheld. Consequently the application must be dismissed.

There is no apparent reason to deny the winning party its costs. These would be awarded. The court holds thus-

The point in limineon the application being improperly before the court is upheld.

The application be and is hereby dismissed with costs.