Lilford Nhandara N.O. v City of Harare and Booker Masasi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/180/2020
HARARE, 7 JULY 2020
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/180/2020

HARARE, 7 JULY 2020		                      CASE NO. LC/H/LRA/405/19

AND 31 JULY 2020

In the matter between:-

LILFORD NHANDARA N.O.				Applicant

And

CITY OF HARARE						1st Respondent

And

BOOKER MASASI						2nd Respondent

Before Honourable B.S. Chidziva, Judge

Applicant			In Person

For 1st Respondent	Mr T. 	Goro (Legal Practitioner)

For 2nd Respondent	Mr J. Mambara (Legal Practitioner)

CHIDZIVA, J:

This is an application for Labour Officer Lilford Nhandara that was made on 1st November 2019. In his ruling the Labour Officer ordered the first Respondent to pay the 2nd Respondent (claimant) a total sum of USD883 299-63 arising from damages in lieu of reinstatement and cash in lieu of leave days within 60 days from this order.

The brief history of the matter is that this application is coming to this court after the draft ruling by the Labour Officer was confirmed by this court under judgment LC/H/426/18. In this judgment Honourable Judge Kudya ordered as follows;

“Application for the confirmation of a ruling in the matter between Booker Masasi and City of Harare being merited it be and hereby succeeds. The ruling in the matter between Booker Masasi and City of Harare be and is hereby confirmed. City of Harare pays Masasi damages for constructive dismissal in an agreed sum between the parties or to beset by the Labour Officer on application by either party.  City of Harare pays costs of this application within 15 days of the order.”

The parties referred the matter to the Labour Officer for quantification. The Labour Officer quantified the judgment and has filed an application for confirmation of the draft ruling.

When the parties appeared before this court Mr Goro who was representing the (2nd) second Respondent raised a point in limine which had not been raised in the Heads of Argument. He indicated that this point in limine had been necessitated by the Isoquant Case SC 6/20. He indicated that this case had put to rest the meaning of the procedure and legal consequences of Section 93 (1) (5) of the Labour Act.  He indicated that this Court had no jurisdiction to deal with this case since the ruling was made in terms of Section 93 (5). According to Section 93 (1) there should have been compulsory conciliation but there was no proof of that on record. He indicated that there was no Certificate of Settlement. He further indicated that this was not an unfair labour practice for which a Labour Officer had jurisdiction to entertain. It was not clear whether he conciliated or adjudicated.

In response Mr Mambara argued that this quantification was done after the judgment of this Court dated 18 October 2018. The first Respondent had not done anything about this judgment and it was only quantification that was pending. He further argued that the law cannot operate in retrospect.

Mr Nhandara argued that this matter was a continuation from 2018. He further stated that he had issued a certificate of no settlement.

What is to be decided in this court is whether or not this court has jurisdiction to deal with this application. On record there is a certificate of no settlement dated 7 September 2017.

The matter was referred to the applicant concerning constructive dismissal.  After failing to settle the matter he then made a ruling that was confirmed by Honourable Judge Kudya.

It is my view that the procedure laid out in the Isoquant case was complied with. The claimant had complained about constructive dismissal. There is a certificate of no settlement.

In the circumstances this court finds that the point in limine lacks merit. It is therefore ordered that,

The point in limine be and is hereby dismissed.

The Registrar is directed to set down the main matter for hearing.

Mbidzo, Muchadehama & Makoni, 1st Respondent’s legal practitioners

J. Mambara & Partners, 2nd Respondent’s legal practitioners