Humphrey Chikombero v National Tyre Services (Pvt) Ltd

### Preamble
1
HH 522-18
HC 7945/17
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HUMPHREY CHIKOMBERO

versus

NATIONAL TYRE SERVICES (PVT) LTD

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 6, 7, 27 February 2018 and 16 March 2018 & 12 September 2018

Opposed Application

E Mandaza, for the applicant

T Chagonda, for the respondent

CHITAPI J: This chamber application was referred to the opposed roll following the filing of opposing papers by the respondent. The application is for registration of a Labour Court order made in favour of the applicant on 13 June 2017 in case No. LC/H/432/17. In terms thereof, the Labour Court decreed as follows;

“1.	The Draft Ruling of Nhandara N.O. dated 7 March 2016 be and is hereby confirmed.

2.	Respondent be and is hereby ordered to pay Humphrey Chikombero the sum of

$10 533.53 with effect from 30 days from the date of this order.”

The application is made in terms of s 92 B (3) of the Labour Court Act

[Chapter 28:01]. Section 92 B (3) provides as follows in relation to enforcement of Labour Court	 decisions:

92 B Effective date and enforcement of decisions of the Labour Court

The Labour Court may fix the date from which any decision, order or determination made by it shall operate, which date may be an earlier or late date of the decision, order or determination.

…

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

Once registered and as provided for in subs (4) the order or determination will have the effect “for purposes of enforcement,” of a civil judgment of the registering court. In other words, its enforcement, suspension of execution and ancillary matters will be dealt with in terms of the rules of the registering court. The order so to speak is deemed an order of the registering court as far as its enforcement or execution is concerned.

The dispute in this matter relates to the interpretation of the law. The respondent does not deny the existence of the award or order whose registration is sought by the applicant. The respondent simply raises a point of law that the applicant has no locus standi to institute the application for registration and that consequently there is no valid application before the court. The respondent seeks that he application be dismissed on this basis. I shall deal with the details of the grounds relied upon by the respondent to support its objection in limine later.

The applicant insists that the respondent’s point in limine has no merit or substance and persists in his claim. I will therefore detail the background to the applicant’s application as follows:

The applicant made a claim for unlawful termination of employment and pension due against the respondent. The dispute was initially dealt with by a labour officer under case reference 3613/15 in terms of s 93 (5) (c) of the Labour Act. The applicant succeeded in his claim and was awarded $10 533.53 as compensation for loss of employment. The claim for pension was not dealt with following a withdrawal of the same by the applicant. The order was made on 7 March 2016. The labour officer concerned was Mr L Nhandara.

Having made the determination and award as aforesaid in terms of s 93 (5) (c) the labour officer applied to the Labour Court in terms of s 93 (5a) for confirmation of his order. For reason that the interpretations which the court will make involve the provisions of s 93 (5) (a), I will set out the provisions of ss 93 (5a) and 93 (5b). They provide as follows

93 (5a) A labour officer who makes a ruling and order in terms of subs (5) (c) shall as soon as practicable—

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

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 subs (5) (c) (ii) and to pay the costs of the application.

[Subsection inserted by section 16 of Act 5 of 2015]

93 (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 Labour Court duly confirmed the labour officer’s determination and award on 30 June 2017. Significantly, the parties or litigants cited in the order of the Labour Court were the labour officer “Lilford Nhandara N.O” as applicant and the respondent was the same as herein represented by its legal practitioner Mr Chagonda who again appears in this application. The labour officer appeared in person.

The respondent did not comply with the order for payment on the Labour Court order. It ought to have made payment within 30 days in terms of the Labour Court order of 30 June 2017 confirming the labour officer’s determination. As at the time of hearing of this application, the respondent had not paid the applicant on the judgment and it did not offer to pay the money in its opposing papers. This was despite the fact that the respondent did not take any further steps to have the judgment set aside.

The applicant only filed this application on 29 August 2017. In his founding affidavit the applicant in para 12 deposed as follows:

“The relief sought is essentially a procedural relief. That being the case, nothing will be achieved in opposing this application as it does not deal with any substantive issues but is rather a procedural requirement. Opposing such an application in the circumstances can only be motivated by malice and intended to delay the inevitable. For this reason, I will pray that in the event of this matter being opposed, applicant will seek costs on the higher scale, and if the respondent is legally represented in opposing the matter, costs will be sought personally against the legal practitioner concerned”

The respondent’s opposition to the application was not based on any denial or liability on the award by the respondent. It was based on an objection to the form of the application. It was based on procedural issues which did not affect the liability for payment. The objection was therefore not one of substance and there was no allegation of prejudice made by the respondent in the opposing affidavit and at the hearing. Mr Chagonda submitted that in terms of s 93 (5b) it is the labour officer whose decision has been confirmed by the Labour Court who shall submit the order for registration to the court with jurisdiction for registration of the Labour Court order as an order of that court for purposes of enforcement. In Mr Chagonda’s understanding the beneficiary of the determination (the applicant herein) did not have locus standi to apply for registration of the award. The correct applicant should have been labour officer Nhandara so submitted Mr Chagonda on his interpretation of s 93 (5b).

Miss Mandaza argued that the application should not be determined on technicalities. Mr Chagonda agreed that labour matters as a general rule should not be determined on technicalities. It is of course correct that labour matters should not be decided or parties rights defeated on technicalities. The principal purpose of the Labour Act is as set out in section 2A of the Labour Act, that is, “to advance social justice and democracy in the workplace “by among other intentions “securing the just, effective and expeditious resolution of disputes and unfair labour practices.” Section 2A (2) provides that

“This Act shall be construed in such manner as best ensures the attainment of its purpose 	referred 	in subsection (1).”

Mr Chagonda despite accepting that labour matters should not be determined on technicalities argued that the rule did not imply that peremptory provisions of the Labour Act should be ignored. He submitted that only the labour officer had the locus standi and competence to submit the order for registration in terms of s 93 (5b).

When I enquired from Miss Mandaza as to why the labour officer did not simply submit the order for registration she indicated over the bar that the labour officer is the one who had suggested that the applicant should himself make the application because the labour officers were not clear on the procedures. My view was that it was necessary to hear from the labour officer as to how labour officers dealt with the confirmed orders. I considered this to be important because if the construction to be given to s 93 (5b) was as suggested by Mr Chagonda, then the court needed to understand why the labour officer did not assist the respondent all the way to ensure satisfaction of the court order. I considered that this application was sui generis and also that it had to be considered against the provisions of s 2A which requires the court to adopt a generous and purposive approach which should achieve the purposes set out in s 2 (1) of the Labour Act.

I issued an order that the labour officer should appear before the court and assist it with information on the matters of concern which I have alluded to. In making the order aforesaid, I did so with agreement of the parties legal practitioners and l was also mindful that in terms of r 246 (1) (a) of the High Court Rules 1971 in chamber applications of which this was one, the court is at large to summon to appear before it any person who may assist in the resolution of a matter before it to give such information as the court may require. The court can also order a joinder in terms of rule 87 (2) of the High Court Rules (supra). I therefore postponed the hearing to 27 February, 2018 and ordered the applicant’s counsel to serve copies of all papers constituting the application and opposition thereof together with heads of argument on Mr Nhandara. I also explicitly stated in the order summoning Mr Nhandara to attend, that the court had particular interest in getting his explanation on what steps if any he took to comply with the provisions of s 93 (5b) of the Labour Act.

Mr Nhandara duly attended as directed on 27 February, 2018. He explained that the labour office was unsure as to how to proceed because at the time that the present application was filed, a colleague of his had submitted an application to the High Court in terms of s 93 (5b) for registration but a judge of this court had queried the labour officer’s locus standi to bring the application. He confirmed that he had advised the applicant’s legal practitioners that if he was to make the application it would most likely meet the same hurdle of locus standi. He said that he also consulted with a fellow labour officer Mr Maxwell Sabilika whose application had been queried under case no. HC 12208/16 following which he withdrew it. Mr Nhandara indicated that as of now their office now had a precedent and they were now able to make the applications.

Mr Chagonda submitted that because Mr Ndandara was cited as the applicant before the Labour Court during confirmation proceedings, he was supposed to be the correct applicant in casu. Miss Mandaza submitted that the locus standi of the applicant arose from his being a beneficiary of the award. She also submitted that the applicant had a direct and substantial interest in the matter and could therefore apply for registration of the award.

I initially thought that, the argument on locus standi raised by Mr Chagonda apart from being academic is based upon a narrow interpretation of s 93 (5b). Admittedly the law giver could have worded it better. In the first instance, it appeared absurd to suggest that s 93 (5b) postulates that the applicant who must apply for registration should be the labour officer. It just did not make sense and sounded illogical. It became necessary to unpack and interrogate the provisions of s 93 (5b).

The position as I understand it is that, where a labour officer presides over a dispute and finds that the same has been proven on a balance of probabilities, he or she may make any of the two orders as set out in s 93 (5) (c) A or B. In terms thereof if the dispute concerns an unfair labour practice committed by the employer or employee, the labour officer may order a cessation or rectification of the unfair labour practice in a manner he sets out in the order including payment of moneys where appropriate. The labour officer can also make an order for payment of damages for any loss, actual or prospective caused directly or indirectly as a result of the commission of the unfair labour practice. For purposes of answering Mr Chagonda’s argument of locus standi, it must be noted that the parties to the dispute when they are before the labour officer will be the wronged party as the complainant/claimant and the one accused of wrong doing will be the respondent. The labour officer will be the presiding officer performing a judicial or quasi-judicial function. The labour officer makes an order by operation of law.

The order which the Labour officer makes as in this case where the parties to the dispute were Humphreys Chikombero (applicant herein as claimant) and National Tyre Services Ltd Limited (respondent herein and described as such before the labour officer) is of no force or effect until it has been confirmed by the Labour Court in terms of the provisions of s 93 (5b). When one unpacks the provisions of the said section, it clearly requires the labour officer to attest to an affidavit. The contents of the affidavit is firstly for the Labour officer to affirm the ruling or order he or she will have made. Secondly, the affidavit must incorporate the labour officer’s order as an annexure together with the record of the evidence that the labour officer has relied upon to come to the decision made.

After complying with s 93 (5a) the labour officer is required on notice to the respondent or the party against whom the ruling or order was made to lodge an application accompanied by the affidavit and documents referred to in s 93 (5a) with the Labour Court.  The application gives a time span for the respondent to comply with the labour officer’s order and payment of costs. The time span should be not less than 30 days from the date that the application will have been set down before the Labour Court.

The powers of the Labour Court in relation to the application are set out in s 93 (5b) of the respondent. If the respondent does not appear before the Labour Court, the court may grant the order as prayed for or as amended. If the respondent appears, before the Labour Court a hearing will be conducted and the Labour Court likewise may grant the order as made or as amended. In relation to the details of the application, rule 15 of the Labour Court Rules SI 150/2017 deals with the procedure to be followed. For purposes of answering the issues raised by Mr Chagonda, rule 15 is quoted below 15.

“(1)	In this rule –

“applicant” means a labour officer or a designed agent.

(2)	The applicant shall deposit with the Sheriff an amount to be determined by the Sheriff as security for costs of the service of the notices of set down.

(3)	The Registrar, upon receipt of the application and proof of such payment shall allocate a case number to the application and thereafter a date of hearing.

(4)	An applicant who wishes to apply for granting of a ruling and order which he or she has made shall within thirty days of the date of ruling lodge with the Registrar an application in three copies by way of Form LC 11 supported by an affidavit and any evidence which he or she considered in making the ruling and order including –

(a)	 the record of any charge against or allegation of misconduct that was made against the employee;

(b)	the minutes or record of proceedings or hearing undertaken to inquire into the charge or allegation of misconduct;

(c)	the decision or determination made at the end of the hearing or inquiry; and

(d)	any other relevant evidence in the matter in question.

(5)	The applicant shall serve copies of the application together with annexures thereof on the parties within five days of their issuing out and thereafter file with the Registrar proof of service.

(6)	Within ten days of receipt of the application for confirmation, the respondent shall file a notice of response in Form LC 2 together with any heads of argument in support of his or her case.

(7)	The Registrar shall set down the matter for hearing and cause the notice of set down to be served on the parties.”

From the above, r 15 (1) defines who the applicant in terms of the application made in

terms of ss 93 (5a) 93 (5b) and 93 (5c) is. It is the labour officer or designated agent. Section 93 (5b) requires or mandates the labour officer where the Labour Court has made or confirmed the order to submit the order to an appropriate court, depending on the court’s jurisdiction, for registration for purposes of enforcement.

I must confess that the provisions of s 93 (5b) of the Labour Act as read with r 15 (1) are quite curious in their construction and intents. They are curious because the maker of a decision is required to apply to the Labour Court for confirmation of his or her determination. It is not so easy to appreciate the logic which informed the procedural justification for the process. When the labour officer determines a dispute there are two or more parties to the dispute. The labour officer is in the ordinary course of things required to act impartially. It is assumed or deemed that the labour officer will have acted impartially in making a finding of fault or culpability on the part of one of the parties. Thus, strictly speaking, there is a winner and a loser in the process. The labour officer then becomes an applicant in the same matter when it is placed before the Labour Court. The labour officer now dorns the jacket of the party in whose favour the labour officer gave his determination. The labour officer not only now fights on the side of the party in whose favour he or she gave a determination but goes further to ensure compliance with the order by submitting the order as confirmed or  varied by the Labour Court for registration. Even before the Labour Court, the labour officer in terms of r 15 (2) is required to pay for costs of service of the notice of set down. One asks from where? His own pocket? How does he or she recover the money?

In my view it offends the principles of natural justice for the labour officer to dorn different hats in the same matter. The labour officer acts as the arbiter or judge as well as enforcer of his or her determination. It does not accord with fairness for the labour officer to determine a matter or dispute and thereafter take sides with the party in favour of whom the labour officer has made a determination by being an applicant before the Labour Court, now arguing in support of his or her decision against the loser who becomes the respondent and must file heads of argument to support the respondent’s case. The simple scenario which unfolds would be akin to the labour officer saying to the parties, “look, you parties, if I have to make a determination on this matter, whoever wins will have all work cut out for him or her because I will take over the winner’s place, apply for my determination to be confirmed by the Labour Court at my cost, and apply for it to be registered for enforcement”. This procedure without doubt does not accord with s 68 of the Constitution which guarantees the right of every person inter-alia to “administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

There are also a lot of practical difficulties which may arise in this kind of procedure even if for the person whom the labour officer fronts in seeking confirmation and enforcement of the determination. If the labour officer does not take steps to apply to the Labour Court for confirmation of his or her determination, it means that the party in whose favour the determination was made will have to apply for a mandamus for an order suffering the labour officer to comply with s 93 (5a) of the Labour Act. One does not want to unnecessarily raise alarm bells but another problem may arise in the event of the incapacity or death of the labour officer who is the applicant. There is nowhere in the Act or rules where it has been provided that in the event of the death of the labour officer as applicant, any other labour officer may continue the process. Whilst the idea of having the labour officer’s determination submitted to the Labour Court for confirmation is noble, there is no justification at law to require the labour officer to defend his or her determination against any of the parties let alone the party against whom the determination was made. Confirmation of the labour officer’s determination is in the nature of a review in terms of which the Labour Court determines the lawfulness of the decision of the Labour Officer. It is the legislated procedure for the confirmation which strikes at the root of an otherwise noble procedure. The best practice in my view would be to simply require the labour officer to submit his or her determination for review or confirmation and to give the parties the opportunity to make representations on review. The parties should fight their cause and not for the arbiter or presiding officer to take sides,

In this matter, the labour officer appeared before MUSARIRI & MURASI JJ for confirmation of what was described as a draft ruling. Mr Chagonda appeared for the respondent arguing that the labour officer’s ruling was wrong. Mr Chagonda therefore appeared before the labour officer at the hearing before the labour officer who determined that the defence proferred by Mr Chagonda was wrong and prepared a written ruling. Next it was now the labour officer saying to Mr Chagonda, now its me against you at the Labour Court. This is the circus which the law provides for and one hopes that the law will be revisited and appropriate amendments made so that the labour officer plays the role of an impartial arbiter only and becomes functus officio except where, should legislation permit, the Labour Court refers back the proceedings to the labour officer with specific directives on what to do before referring the proceedings back to the Labour Court.

The law as presently standing is clear on who the applicant for registration of the award is. The applicant in casu has no locus standi because if the legislation had intended to grant such locus standi to the applicant or the successful party in the determination of the Labour Officer’s decision as confirmed by the Labour Court, it would have provided so. Miss Mandaza’s argument that the applicant can apply for registration because he is the affected and interested party does not hold water. Once the law is stated in clear terms as to who the applicant who may act in terms of s 93 (5b) as read with r 15 (1) is, it is not for this court to open doors or define who else may qualify to be an applicant. It is a legislative issue. Section 2A of the Labour Act does not come into it. The court even if it applies a liberal and purposive interpretation cannot interpret the law otherwise than what it says. The criticism of the current legislation aside, the applicant is not without a remedy since the labour officer stated that he is now able to apply for registration.

In the result the applicant is non-suited for want of locus standi. The application is therefore dismissed with no order of costs.

Muhonde Attorneys, applicant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners