Vusiso Chisoro v Constance .T. Kadenga & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/205/2020
HARARE, 15 JULY, 2020
CASE NO. LC/H/REV/115/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/205/2020

HARARE, 15 JULY, 2020			     CASE NO. LC/H/REV/115/19

AND 25 SEPTEMBER 2020

In the matter between:

VUSO CHISORO								APPLICANT

Versus

CONSTANCE .T. KADENGA						1ST RESPONDENT

ZIMBABWE ENERGY REGULATORY AUTHORITY			2ND RESPONDENT

Before The Honourable Kachambwa J;

For Applicant:			Advocate G.R.J Sithole

For 2nd Respondent:		Mr G Sithole

KACHAMBWA J:

Judgment on Point in limine

This is an application for condonation for late filing of an application for review for review of a Labour officer’s draft ruling.  The Labour officer’s draft is in terms of Section 93 (5a) (c) of the Labour Act, Chapter 28:01 (the Act)

The second respondent raised a couple of points in limine to the application.  The application was made before the Constitutional Court passed its decision in the case Isoquant Investiments (Pvt) Ltd t/Zimoco vs Memory Darikwa. CCZ 6/20.  Had this case been out then the parties would probably not have been before the court.   Of this later.

The points in limine are that

there is no reviewable decision for which condonation may be granted.  Decisions made in terms of Section 93 (5) (c) of the Act may only be challenged through confirmation proceedings in terms of Section 93 (5a) of the Act.

the matter is res judicata under the judgment by Hon. Murasi, J in LC/H/508/2018 which is extant.  In that case the applicant had made this same application and the application had failed.

the application is fatally defective for failure to attach the record of the Labour officer which record contains the proceedings being challenged.

NO REVIEWABLE DECISION

When the parties filed their heads of argument the argument on this point was mainly based on the case Drum City (Pvt) Ltd v Brenda Garudzo SC57/18.  The point in that case was that a case in which the employee is the looser was not subject of an application for confirmation, that such a result may not be brought before the Labour Court for confirmation.  However since then there has been a new judgment by the Constitutional Court.  It is the case of Isoquant supra.  This later case brought in a new dimension altogether.  It also explained the decision in Drum City where Drum City says that the proceedings may not be brought before the Labour Court for confirmation.

The Constitutional Court put it clear that a decision by the Labour Officer in terms of section 93 (5) (c) is a draft ruling.  That means that it is not a final decision.  It is not executable.  In other words it is interim.  It has to be validated first in terms of Section 93 (5a) of the Act.  Whether the employee looses or not it has to be subjected to confirmation proceedings.

This case is very tempting for writing a long and winding judgment.  However I do not see the purpose such a judgment would save seeing as it is that the highest court in the land has spoken in clear unambiguous words that the draft ruling by the Labour officer is neither appealable nor reviewable.  At page 22 thereof it says.

“Both the employer and the 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 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” “

This does not need any explanation.   What it means therefore is that even if the present application were to succeed the applicant will not be able to file the application for review because there is nothing to review.  The draft ruling is not reviewable.  It will be an empty judgment, a brutum fulmen, for the applicant.  The courts are not supposed to give empty judgments.  The applicant’s remedy lies in this application for confirmation of which the Chief Justice says, at pages 25 – 26, that -

“A  “draft ruling” within the meaning of section 93 of the Act can only be  made in terms of S 93 (5) (c ).  One would have thought that, once a finding of the fact that a “draft ruling “ has been made against an employee, compliance by the Labour officer with the procedure of making an application for confirmation of the “draft ruling” would follow as a matter of obligation.

The critical words…………….

A “draft ruling” does not determine the dispute between the parties.  Whether made against an employer or employee, it does not confer any right until it is confirmed by the Labour Court.  It is not clear why a procedure providing access to the Labour Court should by construction be made available to one party in a dispute of right which has not been resolved and not to the other party.

The best that can be said of S 93 (5) (c) of the Act is that there is an element of vagueness lurking behind the use of the words “employer or other person”.  Statutory ……….. A statute must, where possible, be construed in conformity with fundamental human rights.  One cannot interpret the Drum City (Pvt) Ltd  case supra as authority for the proposition that it would only be cases where a “draft ruling “ has been made against the employer that confirmation proceedings would  ensue………

Section 93 (5a) gives the protection and benefit of the law, as the Labour officer’s ruling has no force until it is confirmed by the Labour Court.  All parties appearing before the Labour officer are protected “

The argument that the applicant would not have a remedy unless the “draft ruling” is reviewed falls flat in the face of the Isoquant judgment supra.  The applicant may thus not be heard to say that this intended review is to be in terms of any other law because that is not possible.  Section 92 EE alone or Section 89 (i) (di) alone does not apply or the two in conjunction, do not apply either because the ruling is a “draft ruling”.  It has no effect until after the confirmation proceedings.  The point is made that there is no hearing before the Labour officer.  It is conciliation only.  Therefore the applicant must wait for the application for confirmation at which stage the case would be heard for the first time.  Thereafter he may apply for review or may appeal the decision of the Labour Court.  That is the only time this matter would have been heard.  At page 27 the last two paragraphs thereof of Isoquant supra –

“The “draft ruling” is not a determination as it is not preceded by a hearing.  The purpose of making an application supported by an affidavit is to place the matter in dispute and the evidence before the Labour Court for hearing and determination.  A perusal of S 93 (5b) of the Act is reflective of the fact that a hearing commences when the matter goes for confirmation before the Labour Court…”

It is abundantly clear from the Isoquant case supra that the applicant may not bring the Labour officer’s “draft ruling” on review.  Therefore the application for condonation is ill advised.  It is an exercise in futility.  It will result in a brutum fulmen if it succeeds.  It cannot be allowed.

I resist the temptation to dwell on the other points in limine as I am of the view that the present point resolves the matter.

In the result the first point in limine is upheld.  Accordingly the application for condonation must fall on this hurdle.

The respondent has called for punitive costs.  As l have already pointed out l am of the view that if Isoquant (Pvt) Ltd supra was available before this application was made I do not think that the application would have been made.  The application was aided and abbeted by the Drum City case supra which has been explained in the Isoquant case too.  That being so punitive costs would be inappropriate.

It is therefore ordered as follows

the point in limine that there is no decision to reviews is upheld.

the application for condonation for late filing of an application for review and for extension of time within which to apply for the review be and is hereby dismissed.

the applicant shall pay the respondent’s costs on the ordinary scale.