Dennis Veterai & 5 Others v Border Timbers International (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/76/13
HELD AT HARARE 1ST MARCH 2013
CASE NO LC/H/76/13
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/76/13

HELD AT HARARE 1ST MARCH 2013 		CASE NO LC/ORD/H/166/11

DENNIS VETERAI						Applicants

& 5 OTHERS

BORDER TIMBERS						Respondent

INTERNATIONAL (PVT) LTD

Before The Honourable G Musariri, President

For Applicants		Mr I Makoshori, Unionist

For Respondent		Mr A Mugandiwa, Attorney

MUSARIRI, G:

On 25th October 2011 Applicants filed an application in this Court.  They prayed for an order to compel Respondent to comply with orders made by the Labour Board of the Export Processing Zones Authority in 2005.  The orders by the Board directed Respondent to reinstate Applicants in its employ.  Respondent opposed the application.

The material facts of the matter are as follows

1.

On 1st November 2005 the Labour Board made determinations ordering Respondent to reinstate Applicants.

2.

Respondent filed an application for review of the determinations by the High Court.

3.

On 6th December 2006 the High Court dismissed the application for review.

4.

Respondent appealed against the High Court’s decision to the Supreme Court.

5.

On 5th November 2009 the Supreme Court dismissed the Respondent’s appeal.

6.

Applicants then filed a complaint with a Labour Officer citing the continued refusal by Respondent to reinstate them.

7.

Conciliation failed to settle the matter which was then referred to compulsory arbitration.

8.

On 12th January 2011 an arbitrator made an award in terms of which he declined jurisdiction.

9.

Applicants appealed to this Court.

10.

On 2nd September 2011 Applicants withdrew their appeal.

11.

Then they filed the present application.

12.

No clear explanation has been given for the withdrawal of the appeal and the filing of this application.

As stated earlier, Respondent opposed the application.  Its main argument was that this Court does not have jurisdiction to deal with this sort of application.  In the alternative Respondent argued that the matter is either prescribed or res judicata.  It also argued that Applicants’ failure to use the correct forms prescribed by this Court’s Rules was a fatal irregularity warranting dismissal of the application.  I do not agree with the last submission.  The irregularity in this  case is condonable considering that Applicants were not assisted by an attorney in drafting their papers and no prejudice was proven by Respondent.

I consider that the decisive issue relates to the Court’s jurisdiction.  Section 89 (1) of the Labour Act Chapter 28:01 (hereafter called the Act) provides that

“(1)  The Labour Court shall exercise the following functions-

hearing and determining applications and appeals in terms of this Act or any other enactment;”

It therefore follows that an Applicant should be able to cite a provision in the Act or any other enactment which provides for their application. Applicants purported to bring their application in terms of section 89 (2) (d) of the Act which states that,

“(2)	In the exercise of its functions, the Labour Court may –

(d)	in the case of an application other than one referred to in

Paragraph (b) or (c), or a reference, make such an order or exercise such powers as may be provided for in the appropriate provision of this Act;”

This Court’s jurisdiction in respect of applications is spelt out under section 89(i). The application must be in terms of a provision of the Act or some other enactment.  Section 89 (2) (d) simply spells out the powers the Court has in determining a certain class of applications.  In other words it does not create different specie of application.  On that basis, this application must fail for want of jurisdiction by the Court.  I am fortified in this opinion by the dicta of the Honourable Justice Ziyambi JA in the matter of NRZ vs. ZARU 2005 (1) ZLR 341 (S) at p 347 A, which reads,

“Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application ‘in terms of

this Act or any other enactment’.  This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring:’’

Applicants were ill-advised to withdraw their appeal which was properly before this Court and substitute it with an application which the Court has no jurisdiction to hear.

Wherefore it is ordered that,

The application is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT