Zimbabwe Investment and Development Agency v Ronald Chirochangu & Office of the President and Cabinet

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//25
HELD AT HARARE 12 FEBRUARY 2025
CASE NO. LC/H/1307/24
AND 3 MARCH 2025
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO. LC/H//25

HELD AT HARARE 12 FEBRUARY 2025			CASE NO. LC/H/1307/24

AND 3 MARCH 2025

IN THE MATTER BETWEEN:

ZIMBABWE INVESTMENT AND

DEVELOPMENT AGENCY					APPELLANT

AND

RONALD CHIROCHANGU					FIRST RESPONDENT

OFFICE OF THE PRESIDENT AND CABINET			SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant					Dr. R. Matsikidze

For First Respondent			Mr. T.J. Mafongoya

No Appearance for Second Respondent

MURASI J.,

This is an appeal against the decision of the Arbitrator. The brief facts are that First Respondent referred his matter to a Labour Officer in terms of section 93 (1) of the Labour Act (Chapter 28:01). At the proceedings, Appellant raised a point in limine to the effect that the matter was prescribed in terms section 94 of the Act and required the Labour Officer to make a determination thereof. The Labour Officer declined to do so. The Labour Officer proceeded to issue a Certificate of No Settlement and the matter was referred to arbitration as provided by statute. The Terms of Reference included the one concerning the point in limine raised by the Appellant. It read as follows:

“1. Whether or not a labour officer, where prescription is alleged can conciliate the matter without determining whether the matter is properly before him or her.”

In the determination, the Arbitrator made the finding that the labour officer could not conciliate on the matter. The Appellant is dissatisfied with the decision and has approached this Court for relief. The Appellant’s grounds of appeal are formulated as follows:

The Honorable Arbitrator erred at law in making a finding that a Labour Officer cannot determine the issue of prescription contrary to the provisions of section 94 (1) of the Labour Act (Chapter 28:01)

The Honourable Arbitrator erred at law in failing to make a finding that a Labour Officer cannot refer a question of prescription to an Arbitrator when such powers are not given to the Arbitrator in terms of sections 93, 94 and 98 of the Labour Act (Chapter 28:01).

The Honorable Arbitrator erred at law in failing to make a finding that a Labour Officer cannot refer any issue to arbitration without conciliating the same and clearly, he/she ought to have determined the issue of prescription first.

At the commencement of the proceedings, Mr. Mafongoya informed the Court that Respondent was abandoning the preliminary point raised in the papers so that the parties would deal with the merits of the appeal.

Appellant’s Submissions

In submissions, Dr. Matsikidze stated that a reading of section 94 of the Labour Act (Chapter 28:01) shows that a Labour Officer cannot entertain a dispute or unfair labour practice unless it is referred to him/her within two years. He further stated that a Labour Officer must be convinced before entertaining the matter that it has not prescribed. He argued that the dispute in question had clearly prescribed having regard to the period when the dispute is alleged to have occurred. He added that in the circumstances, the Labour Officer could not competently have referred the dispute to arbitration.

In the heads of argument, it was averred that an arbitrator does not have the jurisdiction to determine the issue of prescription when raised during conciliation proceedings as it was a preserve of the Labour Officer. In paragraph 3.5. of those heads of argument, it was further argued the arbitrator erred at law in failing to make a finding that a Labour Officer cannot refer a question of prescription to an arbitrator when such powers are not conferred to an arbitrator. In paragraph 4.1 it was further argued that by referring the issue of prescription to arbitration, the Labour Officer did not conciliate over the dispute. In paragraph 4.3 it was stated as follows:

“Therefore, before entertaining, which is conciliating, the Labour Officer must be satisfied that the dispute is not prescribed. It is a pre-requisite to entertaining the dispute.”

The heads of argument thereafter refer to the cases of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa and Vundla & Anor v Innscor Africa Bread Company Zimbabwe (Pvt) Ltd & Anor. It was concluded by saying that the referral was improper in the circumstances and the appeal ought to be allowed.

Respondent’s Submissions

In response, Mr. Mafongoya submitted that the issue to be determined is whether a Labour Officer can determine an issue at the conciliation stage. He further submitted that the issue was settled in the Isoquant case. He argued that Appellant was requesting the Court to read section 94 out of context as this section should be read in conjunction with section 93 of the Act. He argued that a Labour Officer is permitted to attempt to conciliate, and, in that process, the Labour Officer cannot interrogate the matter. He added that the raising of the issue of prescription becomes a legal matter, and this therefore escalates the dispute to the issuance of a Certificate No Settlement and the subsequent referral to arbitration. In this regard, he referred to the case of Dube v PSMAS SC 5/22. Mr. Mafongoya argued that the issue of prescription follows an enquiry before the arbitrator who then is positioned to interpret the provisions of the law.

It was also argued that the Terms of Reference were crafted by the parties and the Appellant participated in that process.

In paragraph 4.1 of Respondent’s heads of argument, it was submitted as follows:

“With respect, Labour Officers have never assumed jurisdiction to determine the question of prescription in matters that come before them, and in terms of their disposition, they are to be referred to arbitration. Without doubt, this is salutary practice which the Hon F.V. Maravanyika, the conciliator in the matter complied with and we submit that she was in line with the law.”

It was further averred in paragraph 4.2 that conciliation is not adjudication as it is an alternative dispute resolution mechanism which is aimed at bringing parties to a settlement through persuasion, negotiation and mutual understanding. Reference is also made to the Isoquant Case in the heads of argument. In paragraph 4.4 it was submitted that a conciliator has no jurisdiction to adjudicate on any question of fact or law that arises from a matter referred to him/her in terms of section 93 (1) of the Act.

ANALYSIS

The Appellant has filed three grounds of appeal. A reading of those grounds of appeal shows that the sole issue for determination is whether the labour officer was correct in not determining the issue of prescription which would result in the decision of the Arbitrator being tainted.

Even though both parties refer to the Isoquant Case in submissions, it is my view that the matter is resolved if regard is had to the determination made by that Court. Both parties did not refer to the pertinent portion of the judgment which deals with the issue. I will quote extensively from that portion of the judgment which is as follows:

“Section 93 (1) of the Act makes provision for conciliation. It is the statutorily compulsory method for the resolution of all disputes and unfair practices referred to a labor officer. The adoption of compulsory conciliation as the procedure for the resolution of disputes arising from employment relationships referred to a labour officer underscores its importance. It is an expression on the part of the Legislature of the faith in conciliation as an effective process for consensus-seeking as a first step before the disputes become subjects of arbitration or adjudication. In terms of s 93 (1) of the Act all disputes properly referred to a labour officer must first be subjected to the process of conciliation before they are referred to arbitration or adjudication, depending on the nature of the dispute.

Although the Act does not require a party to allege a cause of action, it is necessary to allege a dispute within the jurisdiction of the labour officer. The following jurisdictional facts must be asserted or must appear when referring a dispute in terms of s 93 (1) of the Act to a labour officer;

there must be a dispute;

the dispute should have arisen within an employment relationship;

the dispute should fall within the powers of a labour officer;

the issue in dispute should not be subject to proceedings under the employment code (s 101 (5) as read with s 101 (6) of the Act);

the parties should not be subject to an employment council with jurisdiction. In other words, a designated agent should not be seized with the dispute (s 63 (3b) of the Act; and

the referral should be timeous (s 94 (1) of the Act.).

The jurisdictional facts must actually exist. They cannot be created by consent of the parties.”

The judgment clearly states that the dispute must be ‘properly referred’. I am of the view that this pertains to the fact that there must be provision within the law that allows for such a dispute to be referred to a Labour Officer. Further, in the judgment, it has been stated that the dispute must be within the jurisdiction of the labour officer. Clearly, the labour officer is disabled from entertaining a dispute that is not within his/her jurisdiction. It is further cautioned in the judgment that the ‘following jurisdictional facts must be asserted or must appear’ and the list that follows includes paragraphs (c) and (f) which are pertinent issues in this matter. Paragraph (c) alludes to the fact that the dispute should fall within the powers of a labour officer. However, paragraph (f) specifically relates to the fact the referral must be timeous, that is, it must comply with section 94 (1) of the Act. If there is non-compliance with one or more of those cited jurisdictional facts, the labour officer cannot proceed to entertain the matter in terms of section 93 (1) of the Act.

In Medicines Control Authority of Zimbabwe v Nathan Toronga & Others SC 10/71, GWAUNZA JA  (as she then was) had this to say:

“Jurisdiction in simple terms can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it. A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter.”

It is my view that section 94 clearly provides what jurisdiction is accorded to a labour officer in terms of subsections 2 and 3 thereof and the non-compliance with the provisions would have a domino effect as any proceedings commenced by the labour officer where he/she lacks jurisdiction would mean that the whole conciliation process becomes a nullity.

Having stated the above observations, the labour officer could not legitimately proceed to attempt to conciliate the dispute without ascertaining whether the dispute had been properly referred and the jurisdictional facts enunciated in the Isoquant judgment were complied with. The subsequent referral to arbitration was therefore incompetent at law and the Arbitrator was equally disabled from dealing with the matter of prescription which was evidently within the province of the labour officer.

In the result, the following Order is appropriate.

The appeal is hereby upheld.

The decision F.V. Maravanyika N.O. is hereby set aside.

The matter is remitted for hearing de novo before a different Labour Officer.

Each party to meet its own costs.

MATLAW legal practitioners-			Appellant’s legal practitioners

Mafongoya & Matapura Legal Practice-		Respondent’s legal practitioners.