Tawanda Mandudzo V Bullion LEAF Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/38/25
HARARE, 16TH FEBRUAY,2024
AND 3RD FEBRUARY,2025
CASE NO. LC/H/704/23
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]IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/38/25 HARARE, 16TH FEBRUAY,2024

AND 3RD FEBRUARY,2025	CASE NO. LC/H/704/23

In the matter between-

TAWANDA MANDUDZO	APPELLANT

And

BULLION LEAF ZIMBABWE	RESPONDENT

Before Honourable Chivizhe, J:

For Appellant:	Mr C. Mavhondo (Legal Practitioner) For Respondent:		Mr C. Zimudzi (Legal Practitioner)

CHIVIZHE, J:

On the 2nd of December 2024 after reading documents filed of record and hearing counsel this court issued an order under Order Number LCHORD1278/24 in the following terms

WHEREUPON, after reading documents filed of record and hearing counsel

IT IS ORDERED THAT:

The point in limine be and is hereby abandoned.

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The appeal, however, having been premised upon a repealed provision, is improperly before the court and is accordingly struck off the roll with costs.

The Appellant having written requesting for reasons for judgement the following are the reasons.

REASONS

The matter was filed as an appeal against part of the determination handed down by the Labour Officer on the 16th of August 2023. The appeal was purportedly filed in terms of Section 89 as read with Section 128 of the Act as amended by the Labour Amendment Act, 2023 herein referred to as “the Amendment Act.”

BACKGROUND FACTS

On the 10th of October 2020, the Appellant entered into a 5-year employment contract with the Respondent as an Assistant Project Manager. The contract was supposed to subsist from 10th October 2020 to 30th September 2025. On the 6th of February 2023, the Appellant received a letter of termination of his employment contract from the Respondent. The letter gave the Appellant only two weeks’ notice. On 23rd March 2023, the Appellant through his legal practitioners, wrote in response to the Respondent. He indicated that the notice period was unlawful as it fell short of the 3 months demanded by the law. Consequently, the Appellant was demanding reinstatement within 7 days failure of which would result in the Respondent paying him terminal benefits including damages. The Respondent neither reinstated the Appellant nor paid the terminal benefits within the seven days. The Appellant, on the assumption that he was not to be reinstated by the Respondent, secured another contract of employment with Whitecard Incorporated P/L on the 6th of April 2023. On the 13th of April 2023, the Appellant was served with a letter of reinstatement by the Respondent but by then he was already under contract elsewhere. The Appellant made it clear to the Respondent that he was no longer able to accept reinstatement because the offer came when he was already employed elsewhere. As a result, the only outstanding issue was the payment of damages/ terminal benefits due to him for the remaining part of the five year contract. When the Respondent made it clear same was not due to him as he had rejected reinstatement, the Appellant referred a complaint of unfair dismissal to the Labour Officer. The parties appeared before the Labour Officer P. Mgazi for conciliation. A Certificate of No Settlement was issued

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on the 22nd of June 2023 and the parties subsequently filed their written submissions before the labour officer and waited for the labour officer’s ruling. The Labour Officer then came up with the draft ruling on 16th August 2023 in which she found that Applicant was not entitled to claim damages in relation to the balance of the five year contract. He was however entitled to the amount of USD 3460 in outstanding benefits. The Appellant was aggrieved and noted his appeal in this court against the draft ruling. The appeal was opposed.

GROUNDS OF APPEAL

The Labour Officer grossly misdirected herself on the facts and law in failing to make a finding that the Appellant's contract had been unlawfully terminated despite the Respondent's admission that it had unlawfully terminated the five-year contract of employment. In so doing, the Labour Officer's finding that the employment contract was not terminated was outrageous in its defiance of logic.

The Labour Officer grossly misdirected herself at law in concluding that the Appellant was not legally entitled to claim damages in the sum of USD 16 800.00 despite that the Appellant's five-year contract had been unlawfully terminated.

POINT IN LIMINE

The Respondent had raised a point in limine, which it believed would effectively dispose of the appeal without delving into the merits. It was Respondent’s submission that the appeal was improperly before the court in that the appeal was not supported by the Act and the rules or any other law in Zimbabwe. There was no specific provision upon which the Appellant could have brought an appeal against the decision of a Labour officer, the decision of which was in his favour. The appeal thus had no standing base. As a result, it was supposed to fail on that basis. On the date of the hearing, the Respondent through Counsel indicated that Respondent was no longer pursuing the point in limine.

After hearing submissions by the parties, the court reserved judgment on the merits of the appeal. It was during the period that the court was preparing the judgment that the court raised a point mero motu as to whether or not the labour officer had the authority to issue a draft ruling on 16th August 2023 considering that section 95(5) (sic) that previously gave the labour officers power to issue draft rulings had been repealed under the Amendment Act which came into force on 14th July 2023. The issue was whether or not the draft ruling so issued was ultra vires the Act and therefore a nullity. This was in light of the fact that before the labour officer had made the ruling, specifically on 14th July 2023, Section 30 of the Labour Amendment Act, 2023 repealed the old section 93 of the Act and replaced it with a new

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section 93. The new section 93 did not provide for the making of draft rulings by the labour officers. The Labour Officer, in casu, only came up with the draft ruling on 16th August 2023 which ruling was being appealed against in this court. The parties were requested to respond to the point raised mero motu within 10 days.

RESPONDENT’S SUBMISSIONS

It was the Respondent's submission that the Labour officer lacked the requisite power to issue a draft ruling as the power to do so was taken away by the Amendment Act. Respondent submitted that prior to its amendment, section 93(5) of the Labour Act [Chapter 28:01] herein referred to as “the Act” empowered the Labour Officer to issue a draft ruling on the dispute brought before them if no settlement had been reached between parties. That section was however repealed by the new Amendment Act which came into effect on the 14th of July 2023. In terms of the newly enacted section 93, the power of the Labour Officer to issue draft rulings was effectively taken away, with the introduction instead of compulsory arbitration following the issuance of a certificate of no settlement. The Respondent further submitted that the draft ruling was issued on the 16th of August 2023, way after the Amendment Act came into effect. It was also clear from the newly enacted section 93 that the provision which allowed the Labour Officer to issue draft rulings prior to the amendment having been removed or repealed therefore the issuance of the draft ruling by the Labour Officer, in casu, was therefore ultra vires the Act, the draft ruling was consequently a nullity.

It was Respondent’s further submission that the transitional provisions in the Labour Amendment Act No. 11 of 2023, upon which the Appellant's appeal was premised, were not applicable and therefore of no assistance to him. They were not applicable in the sense that they related to a scenario where a Draft ruling had been made before the coming into effect of the Amendment Act on the 14th of July 2023. Thus, section 128 (the transitional provision) presupposed the existence of a draft ruling which was made prior to the coming into effect of the new Amendment Act. The provision was not applicable, in casu, as the Draft ruling which was the subject of the appeal was made after the coming into effect of the Amendment Act. Respondent contended that indeed, there was no doubt that the Draft Ruling was indeed a legal nullity as it was granted after the Labour Officer had ceased to have authority at law to issue Draft Rulings. The position of the law was clear that only Draft Rulings handed down before 14th July 2023 could be registered and appealed against. even if the matter had been heard before 14th July 2023 and judgment reserved by the Labour Officer.

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The Respondent further submitted that the Labour Officers as indeed the Labour Court are both creatures of statute, the exercise of their power is derived only from the Labour Act. The nature, content and scope of the Labour Officer’s power are exclusively determined by reference to the specific provisions of the statute creating his office. The Respondent placed reliance on the authorities in Isoquant Investments (Pvt) Ltd ta Zimoco v Darikwa CCZ6/20 and Gutu Rural District Council V Jason Paradzal Mugayo SC 86/23 where it was held that the Labour Act provisions must specifically confer on the Labour Officer the necessary powers to hear and determine the class of matters brought before him and/or to issue draft rulings in accordance with the prescribed procedures. The repeal of the provision which gave the Labour Officer the power to issue out a draft ruling was in itself clear evidence of the legislature's intention to remove that power from him. The Respondent also cited the case of Mukarati v Pioneer Coaches (Private) Limited SC 34/22, where the court ruled as follows;

“It follows that the proceedings before the Labour Officer who referred the dispute to arbitration were irregular, the Labour Officer not having had jurisdiction. By the same taken the arbitration yielded by an irregular conciliation and indeed the appeal to the Labour Court that followed, were also irregular. Nothing lawful could result from an invalidity. It follows that this appeal could not have been properly before this Court.”

It was therefore Respondent’s contention that the issuance of the draft ruling by the Labour officer in casu was irregular as it was not contemplated by the Act, the power to do so having been taken away by the Amendment Act.

APPELLANT’S SUBMISSIONS

The Appellant submitted that this Honourable Court indeed had the jurisdiction to adjudicate over this matter. Fundamentally, section 89 of the Act prescribed that the Labour Court has jurisdiction to determine appeals in “terms of this Act or any other enactment”. The phrase “this Act” means the Labour Act and any subsidiary legislation passed under it. This was said to be in line with section 3(1) of the Interpretation Act [Chapter 1:01]. It was Appellant’s further submission that this appeal was filed in terms of the Labour Act. As alluded to before, the phrase “this Act” means the Labour Act and any subsidiary legislation passed under it. This appeal was filed in terms of the rules of the Labour Court Rules which are part and parcel of the Labour Act specifically rule 19 which stipulates that “A

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person wishing to appeal against any decision, determination, or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following…..” Thus it was Appellants submission that, from this provision in the Labour Court Rules, there are two fundamental requirements for appealing in the Labour Court, namely that the appeal must be against any decision or determination or direction and that the direction or determination or decision must be referred to in “the Act” and as such, the determination or decision of the Labour Officer in question is “referred to” in the Act. It was the Appellants further submission that section 128 of the Amendment Act in any event provides for the transitional provisions in which a draft ruling made by a Labour Officer converts to a judgment. In this provision, a Labour Officer’s draft ruling is referred to in the Act as a judgment or ruling, thus applying Rule 19 of the Labour Court Rules referred to above that this court therefore has jurisdiction over this matter as the Appellant wishes to appeal against a Labour Officer’s ruling which is a decision referred to in section 128 of the Labour Act. In view of the foregoing, it was Appellants contention that the Respondent’s preliminary submission that the appeal was improperly before this court as it was not supported by the Act, the rules, or any other law in Zimbabwe was clearly unmerited.

The Appellant further contended that a purposive interpretation of section 128 (1) of the Labour Amendment Act also supported the Appellant’s position that this court had jurisdiction to determine this Appeal. The Appellant submitted that section 2A of the Act stipulated that the purpose of the Act is to advance social justice and democracy in the workplace by giving effect to the fundamental rights of employees provided for under Part II and that the Act should be construed in such manner as best ensures the attainment of its purpose referred to in subsection (1). Therefore, it was crucial for the court to note that the purpose of the Act, amongst others, is to secure just, effective, and expeditious resolution of disputes and unfair labour practices. It further demanded that all provisions in the Labour Act be interpreted in a way that ensures the realization of the purpose of the Act. The Appellant also contended that section 128 (1) of the Act, in any event only gives an employer the right to appeal to the Labour Court against a decision of a Labour Officer. Denial of the same right of appeal to an employee will be at variance with the purpose of the Act that is to advance social justice and democracy in the workplace amongst other things. It was Appellants further submission that this was the approach that the court ought to take in interpreting section 128

(1) of the Act. This was also in light of section 56 of the Constitution as read with section 46 of the Constitution, which provides that every court is obliged to promote and be guided

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by the spirit and objective of the declaration of rights (Chapter 4 of the Constitution) in interpreting any enactment. It was the Appellant submission that by adopting a purposive interpretation to section 128, the court would find that both the employer and the employee have the right to appeal to the court against the decision of the Labour Officer. In summation it was Appellants’ contention that this court had jurisdiction to hear and determine the appeal as placed before it.

In response to the point raised mero motu by the court as to whether or not the draft ruling so issued was ultra vires the Act and therefore a nullity, the Appellant submitted that the draft ruling was lawfully issued hence it was not a nullity. Appellant further submitted, that the legal effect of the repeal of the old section 93 (5) of the Act to the proceedings that were pending before the labour officer was that, in light of section 17 of the Interpretation Act [Chapter 1:01], the effect of the operation of the repealed old section 93 (5) of the Act was preserved. Accordingly, the labour officer was authorized to continue with the proceedings as if the old section 93(5) of the Act had not been repealed. The draft ruling was therefore not ultra vires the Act and was not a nullity. The Appellant further submitted that the Amendment Act did not provide for a transitional provision dealing with what was going to happen to the legal proceedings that were pending in terms of the old section 93 of the Act. This was a legislative gap in the amendment. The only transitional provision in the Amendment Act was section 36 of the Amendment Act which introduced section 128 to the Act section 128 which provided that with effect from 14th July 2023, a draft ruling rendered by a labour officer , would be deemed to be a judgment or ruling of the labour officer for enforcement purposes. Section 128 however did not expressly address what was going to happen to the proceedings that remained pending before the Labour Officer after the repeal of the old section 93. It was the Appellant’s contention that where a repealing enactment does not provide for a transitional measure to close the gap, the provisions of the Interpretation Act [Chapter 1:01] can be summoned. Section 17 of the Interpretation Act (Chapter 1:01) in particular provides as below;

“17 Effect of repeal of enactment

Where an enactment repeals another enactment, the repeal shall not—

(a) revive anything not in force or existing at the time at which the repeal takes effect;or (b) affect the previous operation of any enactment repealed or anything duly done or suffered under the enact-ment so repealed; or

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affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed; or

affect any offence committed against the enactment so repealed, or any penalty, forfeiture or punishment incurred in respect thereof; or

affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy shall be exercisable, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the enactment had not been so repealed.

Nothing in subsection (1) shall be taken to authorize the continuance in force, after the repeal of an enact-ment, of any statutory instrument made under that enactment.

Where an enactment repeals and re-enacts, with or without modification, any provision of any other enactment, all proceedings commenced under any provision so repealed shall be continued under and in conformity with the provision so repealed.”

The Appellant placed reliance on the authority in Curtis v Johannesburg Municipality 1906 TS and Gudza v City of Harare SC 17/20, where the Supreme court in interpreting section 17 of the Interpretation Act stated as follows;

“It is the appellant’s contention that S.I. 171/2010 was the applicable code of conduct to the disciplinary proceedings brought against him. However, the correct position of law in instances where an earlier statutory instrument has been subsequently repealed by another is clearly and plainly established in s 17 of the Interpretation Act [Chapter 1:01

[Chapter 1:01] which provides as follows:

“17. Effect of repeal of enactment

Where an enactment repeals another enactment, the repeal shall not…

…or

Affect the previous operation of any enactment repealed or anything duly done or suffered under the enactment so repealed; or …

… or

… or

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Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty … and any such investigation, legal proceeding or remedy shall be exercisable, continued or enforced… as if the enactment had not been so repealed.”

The Appellant also cited the case of Chigovanyika v Minister of Energy and Another SC 115/21 in which the Supreme Court on the last page of its cyclostyled judgment, summarised the position of the law particularly in respect to section 17 (c) of the Interpretation Act (which section provides that the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed) and stated that the right or obligation in question accrues only when the beneficiary takes active steps to assert the right or obligation before the repeal of the repealed enactment and is preserved if the repealing enactment does not in context oust the provisions of section 17 of the Interpretation Act [Chapter 1:01]. It is therefore Appellant’s submission that he acquired rights in terms of the old section 93 of the Act when he instituted legal proceedings that remained pending before the labour officer until the old section 93 was repealed. Clearly the right to pursue the remedy that the Appellant sought remained preserved despite the repeal of old section 93 of the Act. Equally the proceedings that remained pending before the Labour Officer remained preserved despite the repeal of old section 93 of the Act. The Appellant made reference to the South African case of Garydale Estate and Investment Co (Pty) Ltd v Johannesburg Western Rent Board 1957 (2) SA 466 (T) in which the court held that actions executed legally and properly in accordance with legislation, before that legislation is repealed, remain valid and in force after the repeal. This provision deals with rights derived from legislation only, and not with those stemming from common law. It was therefore Appellant’s contention that the draft ruling was not ultra vires the Act and therefore it was not a nullity.

EVALUATION

Prior to the ushering in of the new Amendment Act, section 93(5) of the Act empowered the Labour Officer to issue a draft ruling on the dispute brought before him if no settlement had ensued between parties. That section was repealed by the new Labour Amendment Act no. 11 of 2023 which came into effect on the 14th of July 2023. In terms of the newly enacted section 93 brought about by this amendment, the power of the Labour Officer to issue draft rulings was effectively taken away, with the introduction of compulsory arbitration where a certificate of no settlement has been issued.

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It was common cause that the draft ruling which was subject of the appeal was issued on the 16th of August 2023, that is, way after the Labour Amendment Act came into effect. It was also clear from the newly enacted section 93 that the provision which allowed the Labour Officer to issue draft rulings prior to the amendment was repealed. It naturally follows that the issuing of the draft ruling by the Labour Officer in casu was therefore ultra vires the Act and therefore a nullity.

The court did consider the submissions as made by the Appellant in support of the appeal being properly before the court. The court was not persuaded by the arguments proffered by the Appellant. This was in light of the issue raised being one based on the Labour Officer’s jurisdiction to issue the draft ruling. It was clear that the issue was whether the Labour officer had legal authority to issue a draft ruling as at the date he issued the draft ruling i.e. 16th August,2023. Jurisdiction as defined in authorities simply refers to the power or competence of a particular court or tribunal to hear and determine an issue brought before it. See Medicines Control Authority vs Nathan Toronga and 3others. It was clear that whilst the matter had been properly placed before the Labour Officer, the law had then been altered as at 14th July, 2023 to take away the Labour Officer’s power to issue draft rulings. On the 16th of August 2023 when he rendered his draft ruling the Labour officer had no power or competence to issue that draft ruling. The argument about preservation of process which was based on the Interpretation Act was in the court’s view not relevant to the issue.

It was on this basis the court came to the conclusion that the coming into effect of the Amendment Act on 14th July, 2023 effectively took away the Labour officer's power to issue draft rulings. The draft ruling issued by the Labour Officer on the 16th of August 2023 amounted to a legal nullity. It was of no legal use or force. It followed consequently that the appeal placed before the court, being premised on that nullity, also amounted to a nullity. In the case of MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC), the court had held that;

"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

These are the reasons for the order issued by the court.