Faith Mupangani v Allied Timbers (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/261/2020
HARARE, 21 OCTOBER, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/261/2020

HARARE, 21 OCTOBER, 2020			     CASE NO. LC/H/LRA/329/19

AND 20 NOVEMBER, 2020

In the matter between:

FAITH MUPANGANI							APPLICANT

Versus

ALLIED TIMBERS (PVT) LTD						1ST RESPONDENT

GODFREY MAWARURA							2ND RESPONDENT

Before The Honourable Chidziva J;

For Applicant:			In Person

For 1st Respondent:			Mr E.T. Moyo

For 2nd Respondent:			Mr E. T. Nhachi

CHIDZIVA  J:

This is an application for confirmation of the draft ruling that was made by Labour Officer Faith Mupangani. He ordered the 1st respondent to pay a total sum of US$168 525,00 to the 2nd Respondent.

The 2nd Respondent has not opposed the draft ruling. The 1st Respondent has opposed the confirmation of the draft ruling on the grounds that;

(i)	it has prescribed

(ii)	the draft ruling is in Unites States Dollars which is in violations of

the Laws of Zimbabwe.

The Court is to decide whether or not the claim has prescribed.

It is the 1st Respondent’s submission that the claim has prescribed. Some of the

claims were brought to the attention of the Labour Officer after the prescribed 2 years. The claims arose between 2009 and 2018 and they were only brought to the Labour Officer in 2019.

The 2nd Respondent in response argued that the unfair Labour practice was continuing because wrong remuneration was paid on a monthly basis and each month the 1st Respondent denied the 2nd Respondent his contractual benefits while accumulating backpay and arrears.

Section 94(1) of the Prescription Act states as follows;

1(i)	Subject to subsection (2) no Labour Officer shall entertain any dispute or

unfair Labour practice unless;

(a)    it is referred to him or

(b)    has otherwise come to his attention

within two years from the date when the dispute or unfair Labour practice first arose.

(2)	Subsection (1) shall not apply to unfair Labour practice which is continuing at the time it is referred to or comes to the attention of a Labour officer.

(3)	For the purpose of subsection (1), a dispute or unfair Labour practice shall be deemed to have first arisen on the date when;

(a) 	the acts or omissions forming the subject of the dispute or unfair Labour

practice first occurred or

(b)	the party wishing to refer the dispute or unfair Labour practice to the Labour

officer first became aware of the acts or omissions referred to in paragraph (a) if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred.

This court agrees with the 2nd Respondent’s submission that section 94(1) is

subject to subsection 94(2) of the Labour Act. Section 94(1) does not apply where the Labour practice is continuing.

In the circumstances the justice of the case will only be met when dealing with the merits of the case. In the hearing the Court will be in a position to find out which of the claims have prescribed or are continuing.

The court therefore orders as follows;

(i)	The Registrar is directed to set down the matter for the court to deal with the

merits of the case.

(ii)	The issue of the currency to be used shall be dealt with therein.

(iii)	Costs shall be in the cause.

Scanlen & Holderness	-	1st Respondent’s Legal Practitioners

Messrs Mapendere & Associates	-	2nd Respondent’s Legal Practitioners