Mufaro Muchetu v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/241/2025
HARARE, 24 JUNE, 2025
CASE NO LC/H/244/25
MUFARO MUCHETU
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/241/2025 HARARE, 24 JUNE, 2025		CASE NO LC/H/244/25

MUFARO MUCHETU	APPELLANT

DELTA BEVERAGES (PVT) LTD	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant	- T. Chinyanganya, Attorney

For Respondent	- P. Dube, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent.

The Respondent opposed the appeal.

At the onset of oral argument the both parties raised points in limine which shall be addressed in turn.

Appellant

That there is no valid opposition:

Appellant zeroed in on the opposing affidavit deposed by Simbarashe Mazani. He argued that there is no proof that Mazani was authorised to act on behalf of respondent in this matter.

What we have is Mazani’s ipse dixit that he is ‘duly authorised to depose to this affidavit.’ Appellant argued that Mazani’s claim does not amount to the required proof. Respondent countered by requesting time to file the necessary proof because Appellant had not raised the point in his papers filed of record. However the parties agreed and the Court directed that the company resolution and applicable Code of Conduct should be filed on or by the 27th June 2025. The resolution and code have since been filed.

Respondent

That the notice of appeal is fatally defective for failure to notify respondent of its right to oppose the appeal:

The point was abandoned in the course of oral argument.

That the relief sought is incompetent:

The point was also abandoned during oral argument.

That the appeal should be made to a Labour Officer first before resort to the Labour Court; Respondent relied on the recently (2023) amended Section 101 (5) which provides that,

“(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in such proceedings

Provided that at the conclusion of such proceedings and Notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by those proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section.”

Respondent argued that this provision obliges the appellant to appeal his dismissal by it to a labour officer first. Appellant has not done so. Resultantly, respondent argued that the appeal to Labour Court, being premature, is improperly before the Court.

Appellant countered in his heads of argument thus,

“4.1  In response, it is submitted that this point in limine should be dismissed for its lack of merit. Reference is made to the proviso of section 101 (5) of the Labour Act which provides that, ‘at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of ay party aggrieved by the proceedings may (my emphasis) appeal to a labour officer within 30 days…’

4.2  ……… It is submitted that the term ‘may’ confers discretion and indicates that the provision is permissive rather than mandatory; it thus confers discretionary power on the affected or aggrieved party viz the appellant in casu. This therefore means that the appellant has the discretion appeal either in terms of Section 101 (5) of the Labour Act or to appeal in terms of Section 92D of the Labour Act…..”

The court is persuaded by the appellant’s argument and has already stated so in the case of Ntini v Rydings whose judgment is referenced LC/H/80/24. However for the sake of completeness the Court will restate its reasoning. Section 92D of the Act provides that

“A person who is aggrieved by a determination made under an employment code, may,

within such time and in such manner as may be prescribed, appeal to the Labour Court,”

Section 92D gives an aggrieved party an unfettered right to appeal to the Labour Court against any decision made in terms of an employment code.

Respondent’s attorney sought to argue that Section 92D has been impliedly repeated by Section 101 (5). The Court respectfully disagrees. Implied repeal arises where there is a direct conflict between statutory provisions promulgated on different dates. The Court does not read a conflict in the two provisions. As rightly noted by appellant the both provisions use the word ‘may’ which is permissive. In other words the aggrieved party may appeal in terms of the one or the other provision. This reading of the provisions is consistent with the wording in the provisions. It is also consonant with the imperatives to read provisions in same statute in harmony with each other and to give effect to each and every provision in a statute.

See	Fletcher v Edmunds 1998 (1) ZLR 257 (S)

Per Gubby CJ at 261H

“It is a cardinal principle of interpretation that a court must give effect to every clause in a statute

or regulation unless necessary or absolute intractability of language dictates otherwise.”

Conclusion

Applicant’s point in limine fell away with the filing of the company resolution. Respondent’s

remaining point in limine has been deconstructed by the above analysis.

Wherefore it is ordered that,

Respondent’s point in limine be and is hereby dismissed;

The matter is re-set for continuation on the 15th day of July 2025 at 10:00am; and

Costs shall be costs in the cause.

G. MUSARIRI J-U-D-G-E