Kamunga Cynthia v Financial Gazette (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/584/16
HELD AT HARARE ON 22ND JULY, 2016
CASE NO. (blank field)
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/584/16

HELD AT HARARE ON 22ND JULY, 2016 	    CASE NO. LC/H/LRA/56/16

AND 23RD SEPTEMBER, 2016

In the matter between:-

KAMUNGA CYNTHIA							    Applicant

And

FINANCIAL GAZETTE (PRIVATE) LIMITED			    Respondent

Before the Honourables	Mhuri, J.

Muchawa J.

For Applicant	:	Mr T Marume (Legal Practitioner)

For Respondent	:	Mrs T Manjonjo (Legal Practitioner)

MHURI J.

On the 28th April, 2016, Applicant who is a Designated Agent for the National Employment Council for the Printing Packaging and Newspaper Industry made a ruling in a dispute pitting L. Chigogora and 11 Others and Respondent.  The issue in dispute was non-payment of compensation package arising from the termination of their contracts of employment on three months notice in October 2015.

In compliance with section 93(5) of the Labour Act as amended, Applicant filed an application for confirmation of her ruling by this Court.

On the 22nd July, 2016 this Court sat to deal with the application.  The application was opposed by Respondent and in its letter dated 12 May, 2016 to the Applicant stated as its grounds of opposition:

“1.	The process is unconstitutional and goes against the principles of natural justice.

It infringes our client’s rights to fair hearing before an impartial tribunal because the same person who presided over the case and determined a remedy will again enforce the ruling at the Labour Court.

2.	Section 18 of the Labour Act as amended is unconstitutional in as far as it seeks to apply section 12 of the Labour Act in retrospective (sic).  This goes against the principle of the Rule of law in that it took away rights which were granted at the time.

The provision burdens our client with payment of compensation when the terminations were done lawfully.”

Applicant’s submission, which this Court was in agreement with, was that Respondent was not seriously challenging the confirmation of the ruling but was raising issues on the constitutionality of the provisions of the Act.  Respondent was not disputing that the employees contracts were terminated on notice, was not disputing that the employees are entitled to compensation in terms of the Act, and was not disputing that Applicant followed the law in determining the dispute.

After hearing submissions from both parties on the Applicant’s ruling, we issued an ex-tempore judgment confirming the ruling.  Respondent has requested a written judgment.  This is it.

The Court was not persuaded by Respondent’s submission on why the ruling should not be confirmed, namely that the law Applicant ruled upon was invalid as it contravened certain provisions of the constitution.

It is not in dispute that the law, vis Section 93 (5a) and (5b) of the Act is the law applicable.  This law has not been amended or repealed, it is therefore in force.  The Applicant applied the provisions of the Act and it is not Respondent’s case that Applicant misdirected herself or erred in so doing.  This law, is still valid and remains so until it invalidated by a Court of competent jurisdiction.

The principle was aptly set out that all subsisting laws are lawful and binding until such time as they have been lawfully abrogated.

See:	ECONET WIRELESS (PRIVATE) LIMITED

vs

MINISTRY OF PUBLIC SERVICE LABOUR AND SOCIAL WELFARE AND 2 OTHERS SC 31/2016

The Applicant was therefore within her powers to hear and determine the dispute as she did.  In our view the argument that Sections 93 and 18 of the Act contravene Sections 3 and 58 of the Constitution was not a valid basis at that juncture for Applicant to decline to hear and determine the dispute.

That being the case, there was no basis to refuse to confirm Applicant’s ruling.

The ruling was confirmed with minor amendments.

It was ordered that:-

The ruling by Applicant in the matter between L. Chigogora and 11 Others and Financial Gazette (Private) Limited be and is hereby confirmed.

Respondent pays each of the 12 employees the minimum prescribed retrenchment packages within 30 (thirty) days of this Court’s Order.

Respondent bears costs of this application.

MATSIKIDZE AND MUCHECHE – Appellant’s legal practitioners

LUNGA GONESE ATTORNEYS – Respondent’s legal practitioners

…………………

MHURI J.

…………………						I agree

MUCHAWA J.