J. Gutsire & 53 Others v Lafarge Cement P/C

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/628/13
HARARE, 11th NOVEMBER, 2013
CASE NO. LC/H/406/2012
AND 31st JANUARY, 2014
JUDGMENT NO. LC/H/628/13
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IN THE LABOUR COURT	 OF ZIMBABWE		JUDGMENT NO. LC/H/628/13

HARARE, 11th NOVEMBER, 2013			CASE NO. LC/H/406/2012

AND 31st JANUARY, 2014

In the matter between:-

J. GUTSIRE	& 53 OTHERS				 	-	APPELLANTS

AND

LAFARGE CEMENT P/C						-	RESPONDENT

Before the Honourable E. Makamure, J.

For The Appellants:		C. Chengeta (Legal Practitioner)

For The Respondent:	T. Hussein (Legal Practitioner)

MAKAMURE, J.

At the conclusion of the hearing in this matter, the appeal was dismissed for want of jurisdiction.

The Labour Court is a creature of statute.  For that reason, only matters specifically provided for in the Labour Act [Cap 28:01] (The Act) fall for consideration by this Court.

This matter is an appeal against a decision by the Minister of Public Service Labour and Social Welfare (The Minister) to retrench the Appellants in terms of section 12C(9) of The Act.  There is no specific direction within the Minister’s decision for parties to appeal to this Court should the parties be not satisfied with that decision.  Further The Act does not specify what should happen in the event that one of the parties is aggrieved.   Sections regarding appeals in terms of The Act are quite specific.

Sections 46, 47, 92D and 92E deal with appeals or matters to be determined by the Labour Court.  These sections read as follows respectively:

“46 .  	Matters to be determined by Labour Court.

In the event of any dispute as to-

The extent or description of any undertaking or industry; or

Whether any employees are managerial employees;

The matter shall be referred to the Labour Court for determination.

47.  Right of Appeal

Any person who is aggrieved by a decision of the Registrar-

to register a trade union or employers’ organization; or

… to (d)

to decline to hold accreditation proceedings.

may subject to this Part, appeal to the Labour Court.”

and

Sections 92D and 92E read as follows respectively:

“92D.  	Appeals to the Labour Court not provided for elsewhere in this Act.

A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

92E.  	Appeals to the Labour Court generally

An appeal in terms of this Act may address the merits of the determination.

…

…”

(Emphasis added)

What is apparent from the above sections is that the Labour Court can only deal with appeals as provided for by the Act.  Section 12C of The Act provides for Retrenchment. The section lays down a detailed procedure of what should be done.

Appeals from retrenchments do not appear to have been provided for.  Since this Court is a creature of stature, it has no jurisdiction to hear any matter which has not been specifically provided for.  I can do no better than refer to the case of Martin Sibanda and Godfrey Moyo v Benson Chinemhute and Martindale Trading (Pvt) Ltd HH131/04 where the High Court, (MAKARAU J) (as she then was) stated that:

“I have always visualized the difference between a court of inherent jurisdiction and one without as two buildings open to the citizenry.  One has all its doors and windows open to all and for all and for all reasons (and in all seasons), apart from those expressly and clearly forbidden entry by statute.  Where a point of entry is hitherto non-existent for a member of the public in the form of a procedure, one is inherently created in the interests of justice.  This is the Court of inherent jurisdiction (The High Court).  The sentry manning the gates of this building is less stern and less demanding than his counterpart at the gates of the other building.  This other building representing the court without inherent powers is generally closed up apart from a few windows to allow access to those expressly defined in the statute creating the court (The Labour Court) on certain terms and for certain specified purposes. Where the statute does not create a point of entry, the court cannot open one for anyone.”  (Emphasis added).

Thus there is no specific “points of entry” granting this court jurisdiction to hear appeals from retrenchments determined by the Minister in terms of Section 12(C) of The Act.

It was in view of the above that this Court declined to hear the appeal.

It was accordingly ordered that the appeal be dismissed for want of jurisdiction.

Pindu & Company, Legal Practitioners for the Appellants.

Hussein, Ranchod & Company, Legal Practitioners for the Respondent.