Memory Dakwa v Isoquant Investments t/a Zimoco

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/722/16
HELD AT HARARE ON 12TH OCTOBER, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/722/16

HELD AT HARARE ON 12TH OCTOBER, 2016       CASE NO. LC/H/LRA/91/16

AND 18TH NOVEMBER, 2016

In the matter between:-

MEMORY DAKWA							    Applicant

And

ISOQUANT INVESTMENTS t/a ZIMOCO				    Respondent

Before the Honourable Mhuri, J.

For Applicant	:	No Appearance

For Respondent	:	Mr Kwaramba (Legal Practitioner)

MHURI J.

Applicant is a Designated Agent with the National Employment Council for the Motor Industry.

On the 8th April, 2016 Applicant issued a ruling in a matter pitting Respondent and 17 of its former employees.  The employees’ contracts of employment had been terminated on notice on or around July, 2015.

In her ruling, Applicant ordered that Respondent pays a total sum of

$139 896,43 to the employees being retrenchment packages.

In terms of Section 93(5a) and (5b) of the Labour Act as amended (The Act) Applicant filed this application for the granting of the ruling and order. The application was on due notice to Respondent as required by law.

On the 15th September, 2016, Respondent filed its notice of opposition.  In its founding affidavit deposed to by its Group Human Resources Manager, Respondent takes issue with the constitutionality of sections 93(5a) and (5b) of the Act, which sections this application is based on.

It avers that the above section violates its rights with regard to

equal protection of the law guaranteed in terms of Section 56(1) of the Constitution of Zimbabwe, which provides that all persons are equal before the law and entitled to equal protection and benefit of the law.

Administrative justice, guaranteed in section 68(1) of the Constitution which provides that every person has a right to administrative justice that is lawful, prompt, efficient, reasonable, appropriate, impartial and both substantially and procedurally fair.

It was Respondent’s request that in terms of Section 175 (4) of the Constitution this court refers these constitutional issues to the Constitutional Court for a determination.

To support its request, Respondent’s submissions were that the dispute  was between Respondent and its employees, the Applicant being the adjudicator.  However after making a ruling in terms of Section 93(5a) and (5b) she becomes an Applicant in a matter she was an adjudicator.  The adjudicator becomes a litigant who fights in one party’s corner against the other party against whom she made a ruling.  In casu, the Applicant is fighting for the employees against the Respondent, up until registration of his ruling/order.

Respondent submitted that this procedure is discriminatory and violates section 56(4) of the Constitution which states –

“A person is treated in a discriminatory manner for the purpose of subsection (3) if –

……………………………………………….

Other people are accorded directly or indirectly a privilege or advantage which they are not accorded.”

It was Respondent’s submission that in this case, the law discriminates against the Respondent by allowing the adjudicator to side with the other party while the real complainants are being accorded the privilege and advantage of being represented by the Labour Officer in the Labour Court, the Respondent is deprived of the same facility.  While Respondent has to pay the costs of the matter in the Labour Court the other party is enjoying the advantage of having such met by the Government through representation of the Labour Officer.  The right to the protection of the law is taken away.

Section 175 (4) of the Constitution which empowers this court to refer a matter to the Constitutional Court reads:

“(4) 	If a constitutional matter arises in proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.”

In Longman Dictionary of Contemporary English International Students Edition, the words frivolous and vexatious are defined as “not serious or sensible, and making one feel annoyed or worried.”

In the case of –

MARTIN vs ATTORNEY-GENERAL & ANOTHER 1993 (1) ZLR 153 (S)

At page 157 C-E

GUBBAY C.J. (as he then was) had the occasion to define these two words.  He stated;

“….the word “frivolous” connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word, “vexatious” in contra – distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in full appreciation that it cannot succeed; it is not raised bona fide, and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless.”

As the Chief justice further echoed, the purpose of the phrase ‘frivolous and vexatious’ is to prevent the referral of questions which would amount to an abuse of the process of the Constitutional Court.

Is the request by Respondent to refer the two issues to the Constitutional Court frivolous and vexatious?  I do not think so.  I find that there is substance in the argument that turning an adjucator into a litigant who fights on behalf of a party in whose favour he made a decision and against a party against whom he made a decision is not inconsistent with logic and good sense.  Neither is the argument meant to vex the other party nor is it an abuse of the Constitutional Court.

Further I do not find it to be inconsistent with logic and good sense nor to vex the other party to argue that a right to administrative justice which is lawful, prompt, efficient, reasonable, appropriate impartial etc. is infringed when an adjudicator is turned to be litigant.  Impartiality is compromised, in the eyes of the public.

Having found that the request is neither frivolous nor vexatious it is hereby granted and the following issues are therefore referred to the Constitutional Court for determination:

Whether sections 93(5a) and (5b) of the Labour Act as amended by Act 5 of 2015 infringe the Respondent’s right to equal protection and benefit of the law guaranteed in terms of Section 56(1) and 56 (4) (b) of the Constitution of Zimbabwe.

Whether section 93(5a) and (5b) of the Labour Act as amended infringe the Respondent’s right to administrative justice guaranteed in terms of section 68(1) of the Constitution.

Whether Section 93(5a) and (5b) of the Labour Act as amended by Act 5 of 2015 should not be struck down.

MBIDZO MUCHADEHAMA & MAKONI – Respondent’s legal practitioners