Godfrey Nyandwe & 22 Others v Discovery Foods & Elvis Machikit

### Preamble
1
HH 680-18
HC 4318/18
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GODFREY NYANDWE

& 22 OTHERS

versus

DISCOVERY FOODS

and

ELVIS MACHIKITI

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 25 September & 17 October 2018

Opposed Application

S. T. Mutema, for the applicants

L. T. Musekiwa, for the respondent

ZHOU J: This is an application for the registration of an order of the Labour Court.  The application is opposed by the first respondent.  The second respondent is the Labour Officer who rendered the determination which was confirmed by the Labour Court on 21 March 2018.

The first respondent raised two objections in limine.  The first point taken is that the application is improperly before this court because it ought to have been brought by the second respondent in terms of s 93(5b) of the Labour Act [Chapter 28:01] and not by the applicants in terms of s 92B.  Mr Mutema for the applicants submitted that s 93(5) does not preclude a party to whom a decision, order or determination relates from submitting the decision, order or determination for registration in terms of s 92B.

S 93 (5a) and (5b) of the Labour Act [Chapter 28:01] provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of subsection (5)(c) shall as soon as practicable—

(a) make an affidavit to that effect incorporating, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not  being earlier than thirty days from the date that the application is set down to for hearing (the “return day” of the application) to do or pay what the labour officer ordered under subsection (5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.

The above provisions enjoin a labour officer who has rendered a ruling, decision or determination to approach the Labour Court for its confirmation in terms of s 93(5a) and to present the confirmed decision, determination or ruling to the Magistrates Court or this court, depending on the amount involved, for registration for purposes of enforcement.  The question to be considered is whether s 93(5b) precludes a party in whose favour to submit the order for registration by either the Magistrates Court or this court in terms of s 92B of the Labour Act.  S 92B(3) provides as follows:

“Any party to whom a decision, order or determination relates may submit for registration the copy of it furnished to him in terms of subsection (2) to the court of any magistrate which would have had jurisdiction to make the order had the matter been determined by it, or, if the decision, order or determination exceeds the jurisdiction of any magistrates court, the High Court.”

The order granted by the Labour Court, No. LC/H/ORD/342/2018 relate to the applicants.  It sounds in money.  The applicants are therefore entitled to approach this Court in terms of s 92B(3) for its registration notwithstanding the fact that the second respondent could also have approached this court for the registration of the same order in terms of s 93(5b).  Section 93(5b) does not oust the entitlement of any interested party to approach the court in terms of s 92B(3).The objection in limine that the applicants have no locus standi to approach this court for registration of the order is therefore dismissed.

The second point is that only the first applicant is properly before this court as he is the only party who deposed to the founding affidavit.  The other listed applicants did not depose to any affidavits associating themselves with the application.  They are therefore not before this court.  But this objection does not affect the validity of the application for the registration of the order.  In effect it would only be of academic interest since the registration of the order in terms of s 92B(3) gives the order the effect for purposes of enforcement of a civil judgment of this court.  Put in other words, the terms of the order are thus enforceable by the process of execution like any other order.  The objection in limine is therefore of no consequence given that any party to whom the order relates can apply for its registration.

On the merits, the first respondent has stated that some of the applicants listed have elected not to enforce the Labour Court order which is being sought to be registered.  Only one affidavit deposed to by one Wellington Mushoshoma was produced. But Wellington Mushoshoma is not even a party to the application.  In any event, that affidavit was deposed to before the Labour Court order was granted.  It was not explained why any party who wanted to withdraw their claim would not have done so prior to the Labour Court granting the order.  Further, if any of the employees is no longer interested in enforcing the judgment that is a matter that only affects execution not the registration of the order.

Mr Mutema for the applicants conceded that the claims for interest and collection commission are not supportable.  The concessions were properly made.  The order of the labour officer and the Labour Court made no award for interest and collection commission.  These cannot therefore be claimed at this stage.

The applicant has asked for attorney-client costs to be awarded against the first respondent.  It is common cause that the first respondent has not paid the amounts which it was ordered to pay in terms of the order of the Labour Court. The first respondent gives no explanation for its default and makes no attempt to state when it intends to settle the debt.  Instead, it has vigorously contested the registration of the order.  While some of the issues raised in opposition has been upheld, it seems to me that it is the unreasonable conduct of the first respondent which has necessitated the filing of the instant application.  The attitude of the first respondent to the debt is reprehensible and amounts to a determination to delay settlement of the debt by any means necessary.  For that unacceptable conduct the first respondent must be penalized by a special order of costs because it has unnecessarily put the applicant out of pocket.

In the result, IT IS ORDERED THAT:

The order of the Labour Court No. LC/H/ORD/342/2018 be and is hereby registered for enforcement in terms of s 92B(3) of the Labour Act [Chapter 28:01].

The first respondent shall pay the costs of this application on the attorney-client scale.

Stansilous & Associates, applicants’ legal practitioners

Musekiwa & Associates, First respondent’s legal practitioners