Someden Investment v Len Smit & Trymore Nyamukona

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/194/2014
HARARE, 19 & 28 MARCH 2014
CASE NO. LC/H/194/2014
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/194/2014

HARARE, 19 & 28 MARCH 2014		           	        	CASE NO. LC/ORD/H/10A/14

In the matter between:-

SOMEDEN INVESTMENT					Applicant

And

LEN SMIT & TRYMORE NYAMUKONA			Respondents

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr. E. Donzvambeva (Legal Practitioner)

For Respondents		Ms D. Atukwa (Legal Practitioner)

MAXWELL J:

Applicant approached the court for an order that;

“Respondents return motor vehicles, Toyota Hilux Double Cab, Registration Number ABP 5625 and Toyota Hilux Single Cab, Registration Number ABP 5627 to the Applicant immediately upon service of this order pending finalization of the appeal filed by the Respondents at the Labour Office.”

Applicant also seeks that Respondents be ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved.

Respondents are former employees of the Applicant.  During their employment they were entitled to use of company motor vehicles for business purposes and personal use.  Following disciplinary proceedings held in terms of SI 15 of 2006, they were found guilty and dismissed from employment with effect from 24 January 2014.  Respondents were ordered to return to Applicant all company possessions including the said motor vehicles upon service of the ruling by the disciplinary authority.  That position was reiterated in the letters of dismissal

Respondents appealed against the ruling and did not comply resulting in Applicant approaching this Court for relief.

At the hearing of this matter Respondents raised two points in limine.  Firstly they challenge the jurisdiction of the court on the basis that the claim is a vindication claim and such a claim can only be entertained by a Court with inherent jurisdiction.  Secondly the Respondents challenge the urgency of the matter as the dispute has been on going since July 2013.  In response Appellant submitted that the application is in terms of section 92E of the Labour Act [Chapter 28:01] (The Act).  It also submitted that The Act encompasses all Statutory Instruments made and in force under it.  It further submitted that since the Respondents filed an appeal in terms of statutory Instrument 15/06 to the Labour Office, such appeal is in terms of the Act.  On the issue of urgency Applicant submitted that the matter has become urgent as abuse of the motor vehicle has increased ever since Respondents were dismissed from employment.

Before considering the merits or otherwise of the objections raised, the question that exercised the Court’s mind is whether or not the application falls within the ambit of section 92E (3) of the Act.  In my view it does not.

Section 92E has the heading “Appeals to the Labour Court generally”.

My understanding is that the Section regulates appeals that are filed in this court.  It therefore follows that Section 92E (3) also relates to appeals that are pending in this Court.  Pending determination of such appeals, this Court has been empowered to “make such interim determination in the matter as the justice of the case requires.”As stated in the application and as submitted by Applicant, the appeal for which an interim determination is being sought is pending at the Labour Office.  An appeal pending at the Labour Office is not in the same category as an appeal to the Labour Court.  This Court is a creature of statute and its powers are prescribed in the Act.  The Court cannot entertain matters falling outside the parameters set in the Act.  On that basis the application fails and I find it not necessary to consider the objections raised by Respondents.

WHEREFORE I order as follows;

The application be and is hereby dismissed for lack of jurisdiction.

Wintertons, Applicant’s legal practitioners

Sande & Associates, Respondents’ legal practitioners