Lilford Nhandara N.O v Maranatha Ferochrome (Pvt) Ltd & 220 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 22 MAY, 2023
JUDGMENT NO. LC/H/239/23
CASE NO. LC/H/1118/22
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 22 MAY, 2023

AND 24 AUGUST, 2023

In the matter between

LILFORD NHANDARA N.O

Versus

MARANATHA FEROCHROME (PVT)LTD

A. MALUNGA & 220 OTHERS

Before The Honorable L. Hove, Judge:

For Appellant	: In person

For 1st Respondent	: Mr. S. Bhebhe For 2nd Respondent :	Mr . E. Dondo

HOVE J:

JUDGMENT NO. LC/H/239/23 CASE NO. LC/H/1118/22

Appellant

1ST Respondent

2ND to 221 Respondents

This is an application for the confirmation of a draft ruling by the applicant in terms of Section 93 of the Labour Act [ Chapter 28:01] (the Act).

The applicant in casu presided over the quantification of amounts claimed by the employees from their employer, the 1st responded.

At the hearing of the quantification process, the employer raised preliminary issues and these related to

Whether or not the 2nd to the 221st respondents were properly before the court.

Whether or not the claims against the 1st respondent had prescribed.

The first preliminary point raised was abandoned at the appeal stage. The 1st respondent was not going to persist with it in view of the supreme court decision in Mapondera & anor v Freda Rebecca Gold Mine SC 81/22.

The 1st respondent however persisted with the other point in limine that the claims had prescribed the 1st respondent argued further that the 2nd to 221st respondent’s heads of arguments should be expunged from the record as they had been improperly filed.

The rules of court do not provide for the filing of heads of arguments prior to the filing of the notice of response. The heads were not premised on any pleadings. Heads of argument are filed to support arguments made in pleadings. The heads of arguments were not filed in terms of the rules. They are improperly before the court. The 2nd to the 221st respondents should have, prior to these proceedings being argued in court, sought to regularize the irregularity by way of an application to the court. They did not. Their heads of arguments remained irregular for they were not filed in terms of rule 15(6) of the Labour Court Rules, 2017 and must be expunged from the record.

The 1st respondent argued and drew the court’s attention to the fact that the applicant failed to deal with the preliminary point raised before him that the arbitrary award which formed the basis of the application for quantification had prescribed. This was an issue that had been placed before him and he was mandated to deal with the issue first before delving in to the merits of the quantification proceedings.

The court must therefore consider the alleged failure by the applicant to consider the preliminary point raised by the 1st respondent.

The 1st respondent argues that a perusal of the applicant’s draft ruling will show that the applicant did not consider the two preliminary issues that were raised. (the 1st respondent has since abandoned the question of whether or not the 3rd to the 221st respondents were properly before the court.) There is thus one preliminary point being raised in connection with this argument.

The 1st respondent submitted that once a preliminary issue has been raised, it must be considered and disposed of before deciding the merits of the dispute. The disposition of the issue cannot be implied and must be expressly and explicitly addressed. A failure to do so vitiates the proceedings, breaches natural justice and invalidates any outcome of those proceedings. In support of this submission, the 1st respondent referred the court to several court decisions. Firstly, reference was made to the case of Chartpril Enterprise (pvt) Ltd and ors v Elnour United Engineering group (pvt) Ltd and anor HH 602/21 the court stated as follows;

“he has a duty to decide all the challenges and issues raised before him unless disposal of one issue disposes of a claim rendering it unnecessary to decide all the issues raised. The arbitrator committed a procedural irregularity… thereby deviating from the basic principles of procedural law resulting in a grave miscarriage of justice, the award will be set aside…”

The court proceeded to make the following observation.

“whilst arbitration proceedings are by their nature informal, the approach is that the conduct of arbitration proceedings must follow due process of law. The proceedings ought to be guided by basic principles of procedural law in such a way that the proceedings are fair and just. …parties (must be ) afforded an opportunity to be heard and a ruling or decision rendered…”

See also Gwaradzimba v C.J Petron and Company SC 12/16, S v Makawa and anor 1991 (1) ZLR 142 (SC), and Heywood Investments (Pvt) Ltd v Zakeyo 2013 (2) ZLR (S) where the court stated as follows;

“it is incumbent upon a court before which an application is made to determine it. A court before which an interlocutory application has been made should not proceed to determine a matter on the merits without first determining the interlocutory application”.

That this is the correct position of law is beyond dispute a court is indeed duty bound to consider preliminary points before proceeding to deal with the merits of an application. The applicant ought therefore to have considered the issue placed before him and give his reasons before proceeding to deal with the merits of the application. He did not do this. He stated in his draft ruling that the parties had raised the issue of prescription, after this, he proceeded to point that there were only two main issues before him, and listed them as

Quantification of the of the arbitral award, and

Identification of the claimants.

He proceeded to deal with those issues and tabulated what was to be paid to each of the employees.

In my opinion, he did not deal with the issue of prescription at all. The record shows that he made no reference to prescription neither did he give reasons for findings that the matter had not prescribed.

He states, while discussing the issue of identification of claimants, that he had no jurisdiction to deal with any other issues outside the terms of reference. This, it may be argued referred to the fact that he could not deal with prescription. But even then, no reasons were given for holding the view that he could not go outside the “terms of reference”. At the end of the day, It could not be said with certainty that the issue was dealt with. If it can be assumed that the issue was dealt with, no reasons where given for the decision. This was a misdirection on the part of the applicant. The applicant may have tacitly accepted that the matter had not prescribed and proceeded to quantify. If this was so, then reasons for his ruling ought to have been given according to the case of Chinhoyi Municipality v Magwana and Partners legal Practitioners HH 403/16, the court has no luxury of keeping the ruling in its head for that would breach the rules of natural justice. The applicant failed therefore to expressly consider and again failed to render a ruling on the issue of prescription. It is for this reason that the proceedings must be set aside.

It has been argued that this court has no power to deal with applications of this nature in any other way except to confirm with or without amendments or to refuse to confirm . several decisions in support of this preposition were submitted and these are ;

Air Zimbabwe (private) LIMITED V Mateko and ors SC 180/20 Triangle (Private) Limited v Mutasa and others SC 77 (2) Zangairai v Zimbabwe Revenue Authority and anor SC 113/21

In Triangle (Private) Limited case (supra), the court stated that the court, in dealing with section 93 applications, it was essentially being asked to exercise its powers of review and in Zangairai case (supra) the supreme court captured the powers of the Labour Court as;

“generally, in review proceedings, the reviewing authority has the power to uphold the proceedings and/or decision, to set aside the proceedings and/or decision and indeed to substitute an appropriate remedy…”

This is a position that is more in line with how the court should interpret the provisions of section 93 (5b). That section is talking of an instance when the court grants the application with or without amendments and the subsequent registration of the award. The section (5b) is not outlining the powers of the Labour court. It is prescribing for the registration of the award in cases where the draft ruling is granted with or without amendments. In Drum City (Private) Limited v Garudzo SC

57/18 the court was clear that it was commenting obiter dictum and not setting a binding principle. It stated that the court could set aside or reverse a draft ruling which has no merit. The court cannot substitute its own decision for that of the Labour officer. By virtue of its powers of review and in line with the supreme court decision in the case of Dalny Mine v Banda 1999 (1) ZLR 220 which stated that Labour Disputes must generally not be decided on the basis of procedural irregularities, these irregularities should not be ignored but must be put right by the court itself deciding the matter or by remitting the matter to the tribunal aquo for it to decide the matter in a procedurally correct manner. The court, can therefore set aside and remit procedurally flawed proceedings to the tribunal aquo for the proceedings to be done in a procedurally correct manner.

It is therefore an accepted principle of law that on review, as is the case in casu, the court can remit where there are procedural irregularities for the tribunal aquo to decide the matter in a procedurally correct manner. The justice of the matter demands that procedural irregularities be put right and the real dispute between the parties be dealt with.

In the result therefore the court finds that the Labour officer erred in failing to consider a preliminary issue which had been placed before it. This was a fatal irregularity and the matter must be remitted to the Labour officer to enable him to decide the matter in a procedurally correct manner.

Order:

The draft ruling is set aside.

The matter is remitted to the Labour officer to enable him to decide the matter in a procedurally correct manner .

There is no order as to costs.