Simbarashe Mtuma v B. Musodza N.O. (Senior Labour Officer) & Watershed College

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/269/2020
HARARE, 25 OCTOBER, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/269/2020

HARARE, 25 OCTOBER, 2020		     	     CASE NO. LC/H/APP/835/17

AND 20 NOVEMBER, 2020

In the matter between:-

SIMBARASHE MTUMA							Applicant

AND

B. MUSODZA N.O

(SENIOR LABOUR OFFICER)						1st Respondent

WATERSHED COLLEGE							2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:			Mr J. Gusha (Gurira & Associates)

For 1st Respondent:			No appearance

For 2nd Respondent:			Mr A. Mufara (Mawire JT & Associates)

HOVE J:

This is an application for condonation for late noting of an application for review.

When the matter came up for hearing, a preliminary point was taken by the 2nd respondent. It argued that the draft ruling being sought to be taken on review has no legal force until after its confirmation when it is made an order of the court.

The 2nd respondent submitted, in support of the preliminary point that it had raised, that the application is improperly before the court as it is based on nothing. The proceedings which are sought to be challenged cannot be taken on appeal or on review before they are confirmed.

The application for confirmation is pending before this Court. It was submitted that the purpose of confirmation was to convert a draft ruling into an order of this court. Before confirmation it is just a draft with no legal force The 2nd respondent placed reliance for its averments in the cases of:

i)	 first capital Bank v Givemore Chigwada & 38 others LC/H/152/2020

ii)	 Drum City (Private) Limited v Brenda Garudzo SC 57/18.

iii)	 Isoquant Investments (Private) Limited t/a Zimoco v Memory Darikwa

CCZ 6/20.

The applicant, also placing reliance on the drum city case (supra) and argued that the

need to confirm a draft ruling cannot be a pre-requisite that would take away the right

of the Applicant to proceed by way of review when he has noted procedural

irregularities. It was argued further that the fact that the draft ruling has not been

confirmed cannot bar the applicant from involving the Labour Court to review the

proceedings. The applicant challenged the 2nd respondent’s averment that at the draft

ruling stage, the proceedings are not yet complete as being a misdirection on the 2nd

respondent’s part.

That the applicant’s arguments cannot be sustained is clear when one considers the

recent Constitutional Court decision that the court has been referred to, that is the

Isoquant Investments case. (supra) commenting on that case, the Labour Court in the

first capital Bank case (supra) stated as follows;

“In that Judgment, (the Isoquant) the Constitutional Court made it clear that where a designated agent redresses a dispute by issuing a determination, such a determination constitutes a final decision on the rights of the parties. It is not the same as a draft ruling which is only effective after it is confirmed by the Labour Court”.”

Emphasis added.

The honourable Chief Justice clarified this position in the Isoquant case at page 22 of the cyclostyled judgment as follows;

“The ruling has no legal force at this stage, an employee cannot enforce a “draft ruling”. Both the employer and employee cannot seek a review or appeal against the ruling at this stage since it will still be a “draft”. It is a suspended ruling, which must not be taken as a direction that the money be paid there and then. It is an interlocutory ruling in abeyance and not a final ruling. It is a ruling that is made pending the decision of the court aquo, which may subsequently give final legal effect to the “draft ruling”.

My emphasis.

In the light of the findings of the constitutional court in the case cited above and in particular the passage cited above, it is clear that the preliminary point has substance.

The application for condonation of late filing of a review application is, in the light of the position taken in the Isoquant case improper and unsustainable, it is seeking to bring a “draft ruling’’ for review when a draft ruling cannot be reviewed, at least not at this stage when it is of no legal force.

In the result, the point in limine is upheld.

The application is dismissed with each party bearing its own costs.

Gurira & Associates	-	Applicant’s Legal Practitioners

Mawire J.T.& Associates	-	2nd Respondent’s Legal Practitioners