Douglas Machivenyika v Colcom Foods Limited T/A Tripple "C" Pigs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/494/2016
HARARE, 5 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/494/2016

HARARE, 5 JULY 2016				       CASE NO. LC/H/APP/436/16

AND, 19 AUGUST 2016

In the matter between:-

DOUGLAS MACHIVENYIKA						Applicant

And

COLCOM FOODS LIMITED T/A					Respondent

TRIPPLE “C” PIGS

Before Honourable Murasi, J

For Applicant		Mr M. Muhuko (Trade Union Representative)

For Respondent		Mr N. Madya (Legal Practitioner)

MURASI J:

Applicant alleges that he was employed by the respondent from 1988 and was promoted to the post of Unit Supervisor with effect from 1 May 1998.  Applicant further avers that at one time during the course of employment he suffered from mental illness and had to be absent from work.  He further states that when he reported for duty he was assigned to work in a different unit.  Applicant further submitted that he was later told to go home and would be called by the respondent. It was stated that despite having reported for duty, respondent continually turned him away and he was not paid any salaries as a result.  Applicant says he is owed salaries back-dated to 2003 and he is aware that if he brings the application to the Labour Officer, the latter will state that he/she does not have jurisdiction as the matter is deemed to have prescribed.  Applicant further argues that he has brought the application to this court as he is of the view that the Court is endowed with the necessary jurisdiction in terms of the Act.  Applicant prays that:

“The Honourable Court (to) grant application and hear this application in terms of the Labour Act or any other enactment.  LA Section 89 (1) (a) and grant the appellant’s application, since the applicant have (has) suffered irreparable harm by not receiving his salaries to date.”

Mr Madya’s response was that the Court did not have jurisdiction hear the matter.  He stated that the Court cannot assume jurisdiction or grant relief in respect of matters that are not conferred upon it by the Labour Act.  Mr Madya further submitted that applicant was requesting the Court to grant an order which was outside the provisions of section 94 (1) of the Labour Act.  This in essence was a resurrection of a cause of action that had prescribed and it would amount to giving an order to a Labour Officer to attend to the matter which powers were not granted to the Court.  Mr Madya also alluded to the mental capacity of the applicant and stated that the condition may still be afflicting the applicant as there is no evidence certifying that he had fully recovered.  Mr Madya, further argued that respondent was enjoined by law to keep records for three (3) years and applicant was bringing an application well after ten (10) years and the respondent did not have the records and was therefore seriously prejudiced.

Precedent has clearly stated that the Labour Court is a creature of statute and its jurisdiction and functions are to be found within the four corners of the statute (see generally National Railways of Zimbabwe vs Zimbabwe Railways Artisans Union & Others SC 8/2005).  The jurisdiction of the Labour Court is provided in section 89 thus:

“89 Functions, powers and jurisdiction of the Labour Court

The Labour Court shall exercise the following functions –

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

hearing and determining matters referred to it by the Minister in terms of this Act; and

referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

appointing an arbitrator from a panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application;

(d1) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.

Doing such other things as may be assigned to it in terms of this Act or any other enactment ….

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

A reading of the unambiguous provisions shows that section 89 (6) gives exclusive jurisdiction to hearing matters referred to in subsection (1) whilst subsection 1 (a) limits the jurisdiction to applications and appeals in terms of the Act or other enactment.  In my view the relevant applications and appeals to be made in terms of the Act are provided for.  Where the statute refers to “in terms of any other enactment” one has in mind specific legislation which gives the Labour Court the powers to deal with only those matters referred in terms of the particular legislation.

Applicant has averred that the application is made in terms of both section 89 and 94 (1) of the Act.  I have already set out the provisions of section 89.  Section 94 (1) provides:

“94 Prescription of disputes

Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless –

it is referred to him; or

has otherwise come to his attention within two years from the date when the dispute or unfair labour practice first arose.”

Applicant alleges that he cannot approach the labour officer in terms of the above-cited section as the matter is prescribed.  This is the reason why he has approached the Court.  Is the application such as one the Court is conferred jurisdiction to preside over in terms of section 89 of the Act? Hardly so.  This is clearly not an application envisaged in terms of that section.  Does Section 94 (1) give the Labour Court the jurisdiction to give an order to a labour officer to deal with a matter which has prescribed? A reading of the section militates against making such a finding.

The issue of prescription is clearly stated in section 94.  It has been stated in precedent that prescription laws are absolute and permit no benevolent exceptions of the clear terms of the statute. In Murray and Roberts (Cape) vs Upington Man 1984 (1) SA 571 (a) 578 F-G the following was said of prescription:

“Although many philosophical explanations have been suggested for the principles of extinctive prescription … its main practical purpose is to promote certainty in the ordinary affairs of the people.  Where a creditor lays claim to a debt which has been due for a long period, doubts may exist as to whether a valid debt ever arose, or, if it did, whether it has been discharged.  The alleged debtor may have come to assume that no claim would be made, witnesses may have died, memories would have faded, documents or receipts may have been lost, etc.  The sources of uncertainty are reduced by imposing a time limit in the existence of a debt, and the relevant time limits, reflect, to some extent, the degree of uncertainty to which a particular type of debt is ordinarily subject.“

The above cited paragraph applies with equal force, in my view, to jurisdictional prescription.  The sections cited by the applicant do not ex facie or by implication endow on the Labour Court the jurisdiction to give an order to the Labour Officer to hear a matter which has prescribed.  If the Court were to embark on such an expedition, it would not be in accordance of “this Act or other enactment.” Put differently, it would be ultra vires the statutory provisions.  Furthermore, the cause of action is clearly prescribed.

In the result and for the aforestated reasons, the application ought to be dismissed.

In conclusion, the application is dismissed with no order as to costs.

Wintertons, respondent’s legal practitioners