Lordshare Masocha v R. Davis and Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/17/2022
HARARE, 13 JANUARY, 2022
AND
JUDGMENT NO. LC/H/17/2022
CASE NO. LC/H/161/21
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO.LC/H/17/2022

HARARE, 13 JANUARY, 2022	 AND

28 JANUARY, 2022                                          CASE NO. LC/H/161/21

LORDSHARE MASOCHA						         Applicant

R. DAVIS AND COMPANY (PVT) LTD      		                   Respondent

Before the Honourable G. Musariri, Judge;

For Applicant		Mr P. Tichaona, Attorney

For Respondent		Mr TS. Mjungwa,  Attorney

REPORTABLE JUDGMENT

MUSARIRI, J:

Applicant applied to this Court for condonation of late noting of appeal.  Respondent opposed the application.  At the onset of oral argument Respondent raised a point in limine.  The point was that the relief sought was incompetent on the grounds that the Court is not empowered to grant such relief.

Applicant filed a draft order.  The operative part reads as follows,

“2.  The applicant is allowed to file its notice of Appeal with the National

Employment Council for construction within 5 days from the grant of

of this order.”

The Collective Bargaining Agreement:  Construction Industry S.1. 45/13 applies Paragraph 11 (1V) of its Code of Conduct provides that

“An employee who is not satisfied with the decision of the Chief Executive/General Manager or his/her Appointee shall have the right to

appeal to the National Employment Council within seven working days of receipt of the decision.”

In paragraph 6 of his founding affidavit Applicant stated that he “failed to file an appeal to the NEC Construction within seven days due to physical injuries..”

It is that failure that he wished to be condoned by this Court so that he can appeal to the NEC.

Section 90(3) of the Labour Act Chapter 28:01 (hereafter called the Act) provides that,

“Subject to this Part, the Judges of the Labour Court may make rules for the Court providing for-

(a) the practice, procedure and rules of evidence to be followed, including                the determination of any preliminary point in any proceedings;”

The underlined portion underscored the fact that the rules are made for the Court, that is the Labour Court.  In terms of that provision the said Judges have made rules codified as the Labour Court Rules S.1 150/17. Rule 22 directs how the party seeking condonation should proceed.  Rule 32 then empowers the Court to grant condonation of “a departure from any of these rules; including an extension of any period specified therein,  “Again the underlined portion shows that the condonation relates to the Court’s Rules.

Applicant gamely argued that Section 89 of the Act clothes this Court with the power or jurisdiction to entertain all labour matters.  Where the relief sought is not provided for in a Collective Bargaining Agreement, the Rules of this Court should apply.  The relevant CBA does not provide for condonation.  Therefore Applicant argued that in circumstances condonation can be sought from this Court.  Respondent’s point seeks to improperly oust the jurisdiction of this Court.  That was the tenor of Applicant’s response.

However the Section 89 of the Act which Applicant relies on does not speak to applications for condonation.  Condonation is found in the Rules made under Section 90(3).  Both the Act and the Rules indicated that they apply to proceedings before this Court.  In other words the Court is not empowered to range beyond the ambit of the Act and Rules and purport to condone breaches of other Acts or their instruments.  That would amount to over-reach of the Court’s powers.  I therefore conclude that Respondent’s point in limine is meritorious and ought to be upheld.

Wherefore it is ordered that:

1. The Respondent’s point in limine  be and is hereby upheld;

2.  The application for condonation is therefore dismissed; and

3.  Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E