Anglican Diocese of Harare v Luckmore Mack

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/211/24
HARARE 06 MARCH ,2024
CASE NO. LC/H/06/24
AND 09 MAY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 06 MARCH ,2024

AND 09 MAY, 2024

In the matter between: -

JUDGMENT NO. LC/H/211/24 CASE NO. LC/H/06/24

ANGLICAN DIOCESE OF HARARE	Appellant

Versus

LUCKMORE MACK	Respondent

Before the Honourable L. Hove, Judge:

For appellant :	Mrs. M.M Gavakava

For Respondent :	Mr. J. Mufukiza

This is an appeal against a decision by a designated agent of the National Employment Council for welfare and educational institutions. The decision was handed down on 30 August 2021.

Background

It is a common cause between the parties that after the decision was handed down in August of 2021 the appellant filed an appeal in the Labour Court. That appeal was never prosecuted to its finality. They responded argue that the appeal is still pending before the labor Court but the appellant argued that it was abandoned.

The appellant then did nothing until the transitional provisions of the Labour Amendment Act, 2023 came into effect. The decision of the designated agent had not been confirmed by the Labour Court in terms of section of 93 (5a). The appellant had instead appealed against the decision to the Labour Court. The respondents argued that the mature is still pending before the Labour Court. If this is the case then the appellants cannot appeal against the decision to the Labour Court as the matter is still pending.

Assuming that the appellants are correct and the matter was deemed abandoned by the Registrar, the proper course to take would be to apply for the matter to be reinstated within the prescribed time limits. If the appellant is out of time, they can seek condonation before proceeding with the matter. In the event that they do not wish to seek for condonation or to be resuscitate the matter, the matter remains abandoned. A second appeal cannot be brought to the court again in terms of the transitional provisions. An abandoned matter is in my considered view completed that is, that it came to its final conclusion. You cannot ignore that position and issue fresh proceedings in the same matter. The transitional provisions do not

apply to matters that are pending before the Labour Court or have been otherwise brought to their final conclusion.

The transitional provisions provide as follows; 128(1)

“Where a Labour Officer made a draft ruling in terms of section 93 (5) (c) and for what reason, the draft ruling was not registered with the Labour Court in terms of section 93 (5a) and (5b) of the replaced provisions, such draft ruling shall automatically be deemed to be a judgment or ruling of the Labour Officer which for execution purposes shall be registered in the appropriate court.

Provided an employer shall have a right of appeal of the Labour Court within thirty days after notice of registration.”

It is on the basis of this provision that the appellant seeks to file a second appeal against the same decision it had appealed against in 2021.

The provisions are addressing matters that would have been dealt with in terms of section 93 (5a) and (5b) of the replaced provisions. That is, matters which would not have been bought for confirmation before the Labour Court and nothing was done to bring them before the Labour Court. This matter was not brought for confirmation but the appellant chose rightly or wrongly to appeal against the draft ruling. The provisions are not talking to appeals that are pending neither are they talking to appeals that have been abandoned before the Labour Court. The situation that the Legislature is addressing is a draft ruling that has not been brought for confirmation since that procedure has been repealed. It is my considered view that this provision is not addressing abandoned appeals or pending appeals.

The appellant, in noting this appeal, is silent about the first appeal that it noted against the same determination concerning the same parties, the same subject matter and the same grounds of appeal. The fact that this determination was appealed against cannot be wished away. The appellant ought to have addressed this issue and brought the court into its confidence. This approach by the appellant is dishonest. Before this court may proceed with this appeal it must know whether or not the appeal is properly before it. The appellant is being dishonest by being silent on a pertinent issue that the court should know of what happened to the earlier appeal. Those earlier proceedings, the earlier appeal, cannot be wished away.

It is true that the draft would have been appealable in terms of the transitional provision but that is only if it had remained a draft ruling and not an appeal that is pending before the court or an appeal that had been abandoned. The transitional provisions are not applicable under these conditions.

The appellant submitted that it had improperly filed an appeal against a draft ruling. The procedure did not provide for such. It was abandoned. When a matter is deemed abandoned there are procedures to be followed by a party who may wish to resuscitate the matter. If the appellant had realized that it had followed a wrong procedure it could have withdrawn that appeal tendered cost and proceed in a procedurally correct manner. Otherwise the matter if it remained abandoned by the Registrar it has come to its logical conclusion and cannot be

resuscitated by the noting of a fresh appeal. It was finalized. It cannot be brought to life again unless it is in in the manner prescribed in terms of the rules.

I am of the considered view that the appeal is improperly before the court and must therefore be struck off the roll.

Accordingly, the following order is made

Order

The appeal be in is hereby struck off the roll.

The appellant will bear respondent’s costs.