Grain Marketing Board v Given Tobaiwa and Christopher Zinyowa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/.99/25
HARARE, 26 FEBRUARY, 2025
CASE NO. LC/H/1270/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/.99/25 HARARE, 26 FEBRUARY, 2025		CASE NO. LC/H/1270/24 and

LCH1272/24

GRAIN MARKETING BOARD	APPLICANT

Versus

GIVEN TOBAIWA		1ST RESPONDENT CHRISTOPHER ZINYOWA	2ND RESPONDENT

Before the Honourable Kudya J;

For the Applicant	- Mr V. Ndagurwa and Mr V.N. Mukumba, Legal Practitioners

For the Respondents	- Mr Z. Dumbura, Legal Practitioner

KUDYA J:

On 26 February 2025 this court issued orders for the following matter: LCH 1270/24 GMB v Tobaiwa and LCH 1272/24 GMB v Zinyowa. The terms of the orders were the following: -

Application under LCH 1270/24 be and is hereby consolidated with application under LCH 1272/24.

Application for a declaration be and is hereby struck off the roll with costs for the reason that it is improperly before the court.

On 27 February 2025 parties wrote to the Registrar requesting reasons for the above stated order.

These are the reasons:

The background to the matter is that Tobaiwa and Zinyowa who were in the employment of GMB were allegedly transferred to Silo Foods Industries. Disputes around their conditions of service to name a few accommodation issues arose between them. This led them to approach the Magistrates court when GMB was seeking to evict Tobaiwa and Zinyowa stating that they were no longer its employees on account of the alleged transfer.

A discussion of their employment status was engaged into resulting in the Magistrates Court denying GMB the eviction relief which it was seeking.

On 11 December 2024 GMB then filed court applications seeking the following relief which is apparent in paragraph 3 of Badarai the GMB Chief executive officer’s founding affidavit. The relief sought is the following “…. This is a court application for an order or declaration that the respondent is no longer an employee of the applicant as he was transferred to Silo Food Industries …”

In response to the application Zinyowa and Tobaiwa pointed out in limine that there was an extant decision from the Magistrates court setting out the nature of the relationship between GMB and them. Such a decision has not been appealed so is extant. They therefore prayed that the instant application be struck off with costs.

On the merits of the application they reasoned that the alleged transfer was non-existent given the fact that it was premised on transfer to a company that had not been incorporated at the date of the alleged transfer. Zinyowa and Tobaiwa also counter applied that the court should find that no proper transfer took place as it would be in contravention of Section 16 Labor Act which outlaws a transfer on less favourable conditions than those obtaining at the previous employer. In the result Tobaiwa and Zinyowa sought a counter declaration declaring the alleged transfer null and void at law.

Joinder

A reading of the order of 26 February 2025 shows that Tobaiwa and Zinyowa’s matters were joined and determined at once. This was principally because the law of joinder allows that matters be

disposed of together where the same issue between the same parties has to be determined. See MBCA Bank Ltd v Reserve Bank of Zimbabwe and another HCH482/15. In the case at hand, it was clear that the same issues which were raised in the application against Zinyowa were the same for Tobaiwa so the court deemed it just and expedient that the 2 matters be entertained at once. It is for the above reason that the joinder order was made.

Striking off order

It is settled that the Labor Court is a creation of statute. See section 84 Labour Act Chapter 28 .01 and section 172 Constitution of Zimbabwe No 20 /13. It can therefore not go outside the Labour Act in its determination of matters. A reading of the Labour Act spells beyond doubt the fact that declarators are not one of orders which the Labor Court can competently make. See UZ- Collaborative Research Programme v Usaihwevhu and others HCH703/22. A reading of the application and counter application states clearly that GMB was seeking a declarator which the Labor Court could not competently grant. It is for that simple reason that the court struck the matters off the roll for being bad at law as the relief sought could not be competently granted by the court.

Costs

It is settled that punitive costs are only reserved for exceptional cases where the losing party has unnecessarily put the other party out of pocket. See Mahembe v Matambo 2003(1) ZLR148. In the case at hand it was clear that all that was before the court was a simple matter where GMB thought that it could competently seek a declarator. In pari pasu the Zinyowa and Tobaiwa counter applied using the same defective declarator course. It was therefore just that costs on the ordinary scale be granted.

It is for the above brief reasons that the order for 26 February 2025 was handed down.

Makuwaza and Gwamada Attorneys- Applicant’s Legal Practitioners Gijima Gashirayi Gatawa Attorneys-Respondents’ Legal Practitioners