Thompson Chabumhe v Unifreight Holdings Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 9 JULY 2025
JUDGMENT NO LC/H/362/2025 CASE NO
LC/H/322/25
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE, 9 JULY 2025

JUDGMENT NO LC/H/362/2025 CASE NO LC/H/322/25

In the matter between:-

THOMPSON CHABUMHE	APPELLANT

UNIFREIGHT HOLDINGS LIMITED	RESPONDENT

Before the Honourable Kudya J

For the Appellant	L.M. Chimutashu, (Trade Unionist)

For the Respondent	T.J. Mafongoya, (Legal Practitioner)

KUDYA, J:

On 29 July 2025, the appellant wrote to this court requesting for reasons for an order handed down on 9 July 2025, where the court struck off the roll an appeal at the instance of the appellant. These are the reasons:-

Background to the matter is that, on the day of the appeal hearing the employer took 3 points in limine and prayed that, the appeal be struck off on account of these points. After hearing submissions from both parties, the court upheld the points in limine and consequently struck the appeal off the roll. It indicated that full reasons for the striking off order could be availed on request.

As earlier stated, a request for the reasons was made, hence the reasons contained in this judgement. Three points were raised by the employer. These were, firstly that the appeal was in breach of S 101 (5) Labour Amendment Act No 11/23, Secondly, that ,appellant had set out defective appeal grounds, in particular ground 4 which is merely a story and not an appeal

ground. Finally, it was the employer’s considered view that, the relief sought by the employee was not proper.

In reaction to the points, the employee was adamant that, the points were merely a delaying tactic calculated to frustrate him. Each of the points is discussed below:-

Breach of S 101 (5) Labour Amendment Act No 11/23

Under this heading, it was submitted that, the appeal is in violation of the proviso to Section 101(5) in the Labour Amendment Act S1 11/23. The provision under contest reads

“31 Amendment of Section 101 of Cap 28:01.

Section 101 (“Employment Code of Conduct”) of the principal Act is amended by the insertion of the following proviso in subsection (5).

“Provided that at the conclusion of such proceedings and not withstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or any other power provided for in that section”.

A plain reading of this provision shows that, before a party can approach the Labour Court on proceedings concluded under employment code of conduct, such a party has to first go through conciliation and/or arbitration before he/she can come to the Labour Court on appeal.

It is worth noting that this provision is existing alongside section 92 D of the Act which reads as follows: -

92D  Appeals  to  the  Labour  Court  not  parodied  for  elsewhere  in  the  Act. A person who is aggrieved by a determination under an employment code may, within such time and in such a manner as may be prescribed, appeal to the Labour Court.

What is pertinent from the new amendment is that, it overrides what could be contained in the Code of Conduct. It is also pertinent to set out what the main 101(5) of the Labour Act says. It reads:

Notwithstanding this part, but subject to section 6, no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.”

It is noteworthy from the just cited provision that, the labour officer jurisdiction in cases under employment codes was ousted but reintroduced by the new amendment. A holistic reading of the provision as it now stands is that, the matter cannot come directly to the Labour Court but needs to go to conciliation and /or arbitration before coming to the Labour Court.

In advancing this argument, the employer relied on the principles set out in Tamanikwa v ZIMDEF SC 13-18 to the effect that, where there is apparent conflict in statutory provisions the later provision prevails. It is clear that, the amendment is the later of the 2 so its interpretation is that a party has to first go before the conciliator and or arbitrator before coming to the Labour Court.

Similar arguments were raised in the cases of Masango v Unifreight LCH 80/24 and in Superlink vs Mabhena LCMT 33/24. In both cases, the court took the position that, the amendment intended to have matters go through conciliation and arbitration first before coming to the labour court, even where the Code says the party goes straight to the Labour Court.

In the case at hand, the code of conduct indicates that a party can appeal directly to the labour court which is what the employee tried to do here. However, since such is contradictory to the law as it currently stands the appeal had to be struck off.

On the other hand, the employee was adamant that, the plain meaning of the statute was to allow the employee the liberty to go to the Labour Court directly. He relied on the case of FalGold v Ministry of Mines SC99-23 on the desirability of using the golden rule of interpretation to give words their plain, grammatical meaning unless, doing so would lead to an absurdity.

He also went on to cite the case of Living Waters Seminary v Chikwanha SC 59-21where it was emphasised that, the labour officer had no jurisdiction to conciliate or arbitrate over proceedings concluded under an employment code of conduct.

It is worth noting that, cases of Chikwanha Supra and Sakarombe NO v Montana Carswell Meats SC44/20 where the labour officer jurisdiction was ousted, were decided before the new amendment. To that extent, they are bad at law and cannot found a basis for proceeding with the appeal to the labour court before exhausting of domestic remedies.

As already stated, it is clear that the new law is as discussed above that, it is now imperative that, before coming to the Labour Court a party has to go to conciliation or arbitration, The first point in limine being well founded should succeed.

Irregular appeal grounds

It is settled that appeal grounds have to be clear and concise. See Kunonga v CPCA SC 25/17. A reading of the appeal grounds, in particular ground 4, shows clearly that, the grounds were inelegantly crafted. The court agrees with the employer’s observation that ground 4 is a narration of events and not an appeal ground. The argument about inelegantly crafted grounds being merited should stand.

Defective relief

The employer’s argument is that, appellant only seeks the success of the appeal but does not go further to state what becomes of the matter once the appeal succeeds. A similar defect was detected in the case of John v Delta Beverages SC 40-17 and, the defect led to the striking off of the appeal. Instant case cannot escape a similar fate as it is riddled with the same defect. The 3rd point therefore also succeeds.

In the ultimate, all the points in limine being merited they be and are hereby upheld. The appeal is consequently struck off the roll with each party bearing own costs.

Mafongoya and Matapura Law Practice.   Respondent’s Legal Practitioners