ZESA Holdings (Private) Limited V T. Munyanyi (N.O.) & 1 Other

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/195/2021
HARARE, 20 OCTOBER, 2021
CASE NO.
---------


IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/195/2021

HARARE, 20 OCTOBER, 2021		     	     CASE NO. LC/H/REV/79/20

AND 05 NOVEMBER, 2021

In the matter between:

ZESA HOLDINGS (PRIVATE) LIMITED					Applicant

Versus

T. MUNYANYI (N.O.)	 						1st Respondent

SAIDI SANGULA								2nd Respondent

Before The Honourable Kachambwa J;

For Applicant:				B. Mahuni & C. J. Mahara (Legal Practitioner)

For Respondent:				A. K. Maguchu & D. Peneti (Legal Practitioner)

KACHAMBWA J:

This is an application for review of the first respondent’s decision on an interlocutory issue. The parties appeared before the first respondent, a labour officer, on a matter referred to the labour officer in terms of section 101 (6) of the Labour Act, Chapter 28:01 [the Act]. The applicant herein raised points in limine before the Labour officer and the decision went against it. It has now applied for review citing the grounds as;

“1.	The 1st respondent did not have jurisdiction to entertain the referral made by the 2nd respondent in terms of section 101 (6) of the Labour Act [Chapter 28:01] in light of the fact that;

1.1.	There was no unfair labour practice on the part of the employer.

1.2.	The 2nd Respondent is being charged in terms of the Labour (National Employment Code of Conduct) Regulations, 2006 to which section 101(6) does not apply.

2.	The 1st respondent’ purported determination was grossly irregular and irrational for the reason that it is said to have been made after conciliation proceedings which never occurred.

3.	The 1st respondent’s purported determination was grossly irregular in that it was accompanied by a notice to attend hearing proceedings on the 4th of January 2021 which is way after the time period within which any dispute ought to have been settled.

4.	When the 1st respondent set-down the matter, the decision was grossly irregular in its defiance of logic that no sensible Labour officer applying his mind to the question would have arrived at it.

4.1.	The 1st respondent seeks to usurp the powers of the Applicant, thus taking away the applicant right to exercise its disciplinary powers against the 2nd respondent.

5.	The 1st respondent exhibited bias, by the manner in which he conducted the proceedings from the day the matter was referred to him and parties filed their submissions in that.

5.1.	The purported determination regurgitates the 2nd respondent’s submissions and the 1st respondent failed to consider the applicant’s submissions.

6.	On the day the 1st respondent delivered his determination that is on the 14th of December 2020, he cailed the applicant’s legal practitioner notifying him that the determination was ready, but surprisingly the applicant was served with the notification for a hearing at the same time by the 2nd respondent himself”.

The 2nd respondent raised a point in limine challenging the applicant’s deponent to the founding affidavit’s authority to depose to the affidavit. This is the only point raised in the opposing affidavit.

When the parties appeared before me I raised three points in limine as follows;

1.	the correctness of the decision to apply for review on a decision on an interlocutory point in this case before the proceedings are completed;

2.	the clarity of some of the grounds for review, what would also be called preciseness/precision; and

3.	why the applicant has not simply produced the authority to depose to the affidavit instead of seeking to fight on otherwise petty technical points.

Points 2 and 3 were admitted by withdrawal of No.4 and 6 and by the production of the authority.

It was noticed that the respondent had also raised the propriety of the application in his heads of argument. That is otherwise unprocedural. The response should raise it first. It should not start in the heads of argument. An application or opposition to an application should stand or fall on the founding or opposing affidavit. However in this case the point was also raised mero motu by the court.

On the propriety of the application for review the applicant argued that if the labour officer’s decision is not overturned the applicant would be deprived of the right to discipline its employee. It also argued that the labour officer must not be allowed to deal with the merits as that would infringe on the employer’s right to discipline its employees. The employer would not have any remedy except to apply for review.

On the other hand the respondent was of the view that the application was premature because the proceedings before the labour officer were not yet concluded as is required by the rules. Rule 20 (1) reads-

“20.(1)	A person wishing to seek review of proceedings referred to in terms of the Act shall within twenty-one days from the date when the proceedings are concluded, do the following- (my emphasis)”.

Those were the arguments.

Unfortunately neither of the parties referred to the locus classicus case of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa SCZ 6/20 which said that at page 22 of the cyclostyled judgment-

“An employee cannot enforce a “draft ruling”. Both the employer and the employee cannot seek a review or appeal of against the ruling at this stage since it will still be a “draft”….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”.

The Court’s disposition of the matter

The rules are clear. They don’t need special interpretation. The proceedings must be concluded first. The case of Isoquant is also clear that no review or appeal lies before the matter is confirmed by the Labour Court. Therefore the application for review is premature.

It will also be observed that it is not the practice of our courts to seek a review or appeal on an interlocutory issue at this stage unless there are good and sufficient grounds for doing so. Such were not put forward. Further it will be observed that the applicant is infact seeking both appeal and review in terms of the grounds for review. The grounds are mixed and not well thought. There seems to be an element of attrition going on at the workplace when one considers the other cases in the other courts touching on similar issues if allowed to continue this will unnecessarily clog the courts.

The Order

Following the above rulings it is ordered that-

1.	The application is prematurely before the court.

2.	The application is struck off with costs.