Mazowe Rural District Council v Zimbabwe Rural District Council Workers Union and Mapuranga Gadaga N.O.

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/
HELD AT HARARE 11TH FEBRUARY 2025
H/150/2025
AND
CASE NO.LC/H/882/24
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 11TH FEBRUARY 2025
AND

In the matter between

MAZOWE RURAL DISTRICT COUNCIL
And

ZIMBABWE RURAL DISTRICT COUNCIL
WORKERS UNION
And

MAPURANGA GADAGA N.O.

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT : M. MAVHIRINGIDZE
FOR THE 1ST RESPONDENT: T. NYAMUCHERERA
FOR THE 2ND RESPONDENT: NO APPEARANCE

MAKAMURE J:

[1]This is an application for review.

Preliminary Issue

[2]The 1st respondent took a point in limine. The point in limine was that the person who deposed to the founding affidavit on behalf of the applicant had no authority to do so. It was argued that the purpose of a resolution is two-fold that is to ensure that the company is aware of the proceedings and that the deponent is not on a frolic of their own. It was argued that there is no evidence to show that Council was aware of the proceedings. It was the 1st respondent’s case that the resolution which is on record was made in 2015 long before the current dispute arose. It was submitted that while the applicant referred to Ss66and 69 of the Rural District Councils Act Chapter 29:13 there is still no resolution before the Court. For that reason, it was submitted that the application was not properly before the Court and should therefore be struck off the roll.

In response, the applicant referred to the resolution which appears at page 40 of the consolidated record. It was made by Council on 25June 2015. Reference was made to ss52,
 66 and s149 of the Rural District Councils Act Chapter 29:13. It was argued that Council is a body corporate and has an identified person authorized to represent it. In this case it is the applicant’s Chief Executive Officer (CEO). It was submitted that the CEO had the requisite authority and the applicant was aware. It was submitted further that the 2015 resolution had not been revoked and so it is still valid.

The resolution reads:

‘RESOLUTION 530:C469

Delegation of Powers To the Chief Executive Officer To Make Appeals

The Council resolved that powers be delegated to the Chief Executive Officer to instigate appeals against cases awarded unfavourably to Council.’

Further s66(1) of the Rural District Councils Act, Chapter 29:13 provides:

‘66 Appointment of officers and employees of councils

‘Subject to this section, a council shall appoint a person approved by the Minister to be the chief executive officer of the council.’

And s69(1) provides:

‘69 Delegation of powers of councils to officers and employees

(1) Subject to this section and to any conditions that the council may impose, a council may delegate to any of its officers and employees such of the powers vested in it by or under this Act or any other enactment as it considers to be necessary or desirable.’

It was submitted that under the circumstances the proceedings were properly before the Court.

[3] In Dube v Premier Service Medical Aid Society & Another SC 73/19 the Supreme Court stated that:

‘A person who represents a legal entity, when challenged, must show that he is duly authorised to represent the entity. His mere claim that by virtue of the position he holds in such an entity he is duly authorised to represent the entity is not sufficient. He must produce a resolution of the board of that entity which confirms that the board is indeed aware of the proceedings and that it has given such a person the authority to act in the stead of the entity. I stress that the need to produce such proof is necessary only in those cases where the authority of the deponent is put in issue. This represents the current state of the law in this country.’

In the present case the deponent’s authority was challenged. A resolution was produced. The resolution was made in terms of the parent act governing the applicant. The applicant has not distanced itself from the matter. This is sufficient proof of authority of the deponent. The Council Resolution of June 2015 empowered the Chief Executive Officer, not a particular person but an office. In Mazowe Rural District Council v Zimbabwe Rural District Council Workers Union LC/ 348/2024 this Court (Honourable Kudya J) dealt with the same issue between the same parties when an application for stay of execution was brought before this Court. This Court then found that Liberty Mufandaedza, the Chief Executive Officer of the applicant had authority to depose to the affidavit on behalf of the applicant. I make the same finding. This means that by virtue of that resolution the current Chief Executive Officer of the applicant is clothed with authority to depose to affidavits in court cases as indicated in that resolution. I therefore find that there is no merit in the preliminary point raised. It is dismissed.

Merits

[4] The applicant raises two grounds of review. These are 1) Gross procedural irregularity and 2) Absence of jurisdiction.

The facts of the matter are that a dispute arose between the parties. The matter was referred for conciliation. At conciliation only the respondent was present. The record shows that the applicant was served with notice of hearing (conciliation) which was held on 14th May 2024. Upon checking with the relevant offices, the Designated Agent who was dealing with the conciliation proceedings found that the person who was supposed to represent the applicant was in a meeting and was not able to appear for conciliation. There after the matter was referred to arbitration without the input of the applicant.

It is on the basis of its absence at the conciliation meeting that the applicant raises the two grounds of review. The case of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CCZ 6/20 was referred to on the need for conciliation to be attended by both parties in order for it to be valid and binding. The fact that the applicant did not participate in conciliation means that the terms of reference which were identified on that date were imposed on the applicant. It was submitted under the circumstances that the proceedings before the Arbitrator were irregular and the Arbitrator lacked jurisdiction to hear the matter.

[5] The position of the respondent on the other hand was that the conciliation was properly done and the referral to arbitration was procedurally correct. In the result the Arbitrator was entitled to proceed in the manner that he did. This was so, it was submitted, considering that before issuing the certificate of no settlement the conciliator had made efforts to communicate with the applicant but the applicant could not attend. In view of these efforts it was submitted that the applicant cannot complain that the certificate of no settlement was irregularly issued.

[6] Both parties referred to provisions of the Labour Act Chapter 28:01 (the Act) and other authorities in support of their respective positions. The following are some of the case authorities relied on by the applicant: Proton Bakery (Private) Limited v Mike Takaendesha SC126/04; Barclays Bank Of Zimbabwe Limited v Norma Mapfanya and Silinganiso Moyo N.O. SC 90/21. The following are some of the case authorities cited on behalf of the 1st respondent: Cuthbert Elkana Dube v Premier Medical Aid Society & Another SC 73/19; Madzivire and Others v Zvarivadza & Ors 2006 (1) ZLR 514; City of Harare v Zvobgo SC04/09; Senele Dlomo-Bhala v Lowveld Rhino Trust HH 263/13.

[7] On 17th May 2024 a letter on behalf of the respondent was written to the Designated Agent and copied to the Chief Executive Officer of the applicant. The letter was asking the Designated Agent (DA) to refer the dispute to arbitration.


[8] Parties attended a pre-arbitration hearing. At that hearing the applicant raised a preliminary issue that the matter had not been properly referred as the applicant did not attend the conciliation proceedings. The Arbitrator dismissed the preliminary point saying that labour matters ought not to be resolved on the basis of technicalities citing **Proton Bakery (Private) Limited v Mike Takaendesa SC 126/04** as one of the authorities.

S93 of the Act provides as follows:

‘93 Powers of labour officer

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing, which shall be registrable with the relevant court for enforcement upon default. The certificate of settlement to enable enforcement shall be issued by the labour officer and it shall have the effect for purposes of enforcement, of a civil judgment of the appropriate court.

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under subsection (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.

(4) The parties to a dispute or unfair labour practice may agree to extend the period for conciliation of the dispute or unfair labour practice referred to in subsection (3).

5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice—’(My underlining for emphasis).

[9] The provisions of the Act make it mandatory for a labour officer ( and in this case a Designated Agent) to attempt to conciliate and settle a dispute brought before him or her OR with the agreement of the parties refer the matter to arbitration. In the present matter it is common cause that the applicant was not present at the conciliation proceedings. This means that there was no conciliation as envisaged by the Act. The Designated Agent is commended for making efforts to investigate the cause of the applicant’s absence. He found out that the person who was supposed to represent the applicant was in a meeting. There was no proof that such was the position. But the fact was that the other party, that is the applicant herein, was not present. That should have caused the DA to stop the proceedings. This is so because s93(1) envisages a situation where both parties appear for conciliation. S93(3) gives parties a period of thirty days to assess whether or not the dispute can be settled. S93(4) gives parties an option to extend the period for conciliation. What this means is that if both parties are present on the initial day of conciliation, they are free to exercise the options provided by the legislature. In other words, they may realize that there is room for further discussions and therefore give themselves time to consider the issues further OR they may realize on that very day that there is no room for any further discussions and so proceed to have a certificate of no settlement issued. Even after extension of periods of conciliation parties may still find themselves having a certificate of no settlement issued. As the provisions of the Act show, it is not a hard and fast rule that a certificate of no settlement/settlement must be issued on the date when parties first appear for conciliation. Parties can, within reason and parameters set by the Act, continue to discuss.

[10] Labour disputes should not be treated with the rigors of courts of law. This is trite. The Supreme Court has on numerous occasions cautioned parties against becoming too technical to the extent of failing to achieve simple justice between man and man. See **Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited SC81/22**. In the present case while the default of the applicant was not acceptable to the DA, there was provision for another chance for proper conciliation proceedings to be conducted. Instead of utilizing provisions of the Act to achieve equity, the DA was persuaded by the 1st respondent to refer the matter to arbitration. The letter requesting arbitration was written less than a week after the failed conciliation proceedings. The respondent was not consulted but found itself having to attend an arbitration hearing whose terms of reference it had not participated in formulating.

[11] In **Isoquant Investments (Private) Limited T/A ZIMOCO v Memory Darikwa CCZ 6/20** the Constitutional Court stated that:

‘Conciliation is a process that does not involve the use of power in the resolution of a dispute between parties, as adjudication does. The purpose of the procedure of conciliation is to afford the parties to the dispute the opportunity to resolve the dispute by agreement. The settlement of the dispute must be reached through voluntary participation in the discussion and consideration of the matters in dispute with the assistance of a third party.’

And at page 20 of the cyclostyled judgment the Court stated that:

‘A properly issued certificate of no settlement has legal effect. The law prescribes the next method of resolution of the dispute or unfair labour practice to be employed on the basis of the presumption of the existence of a validly issued certificate of no settlement. The effect of a certificate of no settlement is to establish the fact that the attempt to settle the dispute through conciliation has failed.’

[12] On the date of conciliation there was only one party. This means that there was no possibility of agreement or disagreement. There was no voluntary participation and discussion (**Isoquant (above)**). The certificate of no settlement that was issued can therefore not be said to have been ‘properly issued.’ If it was not properly issued it can only be a nullity.

In **Proton Bakery (Private) Limited v Mike Takaendesa SC 126/04** the Supreme Court emphasized ‘the need to avoid determining matters on the basis of technical irregularities in labour disputes, particularly where such irregularities can be cured by the leading of evidence.’ The present irregularity is not just technical, it is a grave violation of not only the right to be heard but as pointed out on behalf of the applicant, a grave violation of provisions of the Act.


In Crispen Vundla and Anor v Innscor Africa Bread Company Zimbabwe (Private) Limited and Anor SC14/22 the Supreme Court (Kudya AJA- as he then was) stated that:

‘Conciliation therefore constitutes the first consensus seeking step that is actively and not passively presided over by the labour officer but is driven by the disputants.’

[13]In the present case the conciliation process was attended by only one party. It was therefore driven by one party. It cannot be said to have been actively driven by ‘the disputants.’ The conciliation process was therefore not properly done. This means that the Arbitrator ought to have considered the preliminary issue raised on behalf of the applicant seriously. His failure to do so means that he based the arbitration proceedings on a certificate of no settlement which was not properly issued. The proceedings before him were irregular. In Zimbabwe Platinum Mines (Private) Limited v Zimbabwe Revenue Authority SC159/21 the Supreme Court referred to Schierhout v Minister of Justice 1926 AD 99 where Innes CJ stated that:

“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no effect. … So that what is done contrary to the provision of the law is not only of no effect but must be regarded as never having been done and that whether the lawgiver has expressly so decreed or not: the mere prohibition operates to nullify the act… and the disregard of peremptory provisions in a statute is fatal to the validity of the proceeding affected.”

See also McFoy v United Africa Co Ltd [1961]3ALLER 1169 (BC).

[14]In the present case there was disregard of peremptory provisions of the Act. This means that the conciliation must be regarded as never having been done. As already noted, the arbitral proceedings were irregular and therefore the Arbitrator could not have jurisdiction to preside over irregular proceedings. In the result I find that there is merit in both grounds of review.

[15]Consequently, the application for review succeeds.

It is accordingly ordered that:

1. The Arbitral award by Arbitrator Mapuranga Gadaga dated 05 August 2024 as well as the interim Award dated 25 July 2024 be and are hereby set aside and the matter be and is hereby remitted for conciliation in terms of the Labour Act.

2. 1st Respondent shall bear the costs on the ordinary scale.

MAVHIRINGIDZE AND MASHANYARE, APPLICANT’S LEGAL PRACTITIONERS.

LAWMAN LAW, RESPONDENT’S LEGAL PRACTITIONERS.


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