Murehwa Rural District Council v Mandizvidza Moses Musafare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/491/2014
HARARE, 15 JULY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/491/2014

HARARE, 15 JULY 2014		                                  CASE NO. LC/H/165/14

AND 01 AUGUST 2014

In the matter between:-

MUREHWA RURAL DISTRICT COUNCIL				Appellant

And

MANDIZVIDZA MOSES MUSAFARE					Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. H. Mukonoweshuro (Legal Practitioner)

For Respondent		Mr. R. Munatsi (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the Arbitral award by Honourable Arbitrator H. Muchinako dated 6 December 2013.  It reads as follows;

“Having considered arguments of the parties I hereby order the respondent to pay the claimant back salaries at the prevailing rate as provided for in the CBA of 2010.”

The brief history of this matter is that – On the 10th of September 2004 Honourable arbitrator H. Muchinako made an arbitral award which was in the favour of the Respondent.  He ordered that the Respondent should be reinstated with back pay from 2002 to the date of reinstatement without loss of salary and benefits.  On the 30th of January 2005 the appellant reinstated the Respondent to his job but he did not pay him part of his salary arrears.  The Respondent then applied for quantification in 2013.  Meanwhile in 2010 the undertaking registered a Collective Bargaining Agreement which stated that;

”An employer  who owes an employee any amount arising out of any dispute in terms of the contract of employment irrespective of when the dispute first arose, shall pay the amount owing at the prevailing rate irrespective of the rate applicable at the time the dispute first arose.”

The Appellant is now appealing against the award on the following grounds;

The Honourable Arbitrator erred in directions that Appellant should pay the Respondent damages in United States dollars when the currency that was in use during the period the cause of action arose was the Zimbabwean dollar.

The Honourable Arbitrator erred in her interpretation of the provisions of the Collective Bargaining Agreement of the undertaking.

The Appellant therefore prayed for the setting aside of the award stating that the CBA only applied to dispute that arose after the CBA had been registered.  In response the Respondent stated that;

The issue of Retrospect was not raised before the arbitrator.

The legislature intended to apply in retrospect.

It is common cause that;

Parties came together and made a Collective Bargaining Agreement dated 22 March 2010.  It is this CBA which contains a proviso which is the subject matter of this appeal.

The Appellant partially complied with the Arbitral Award of Honourable Muchinako dated 10th September 2004.

What is to be decided is whether the CBA applied to the disputes that occurred before it was registered or not.

The case of Agere v Nyambuya 1985 (2) ZLR 336 which states that

“It is a fundamental rule of construction in our law, dating probably from code 1:14:7 that there is a strong presumption that retrospective operation is not given to any enactment so as to remove or in any way impair an existing rights or obligations unless such construction appears clearly from the language used or arises by necessary implication.”

For instance where it is expressly retrospective or deals with past events or concerns a matter of procedure practice or evidence.  The supposition is that the legislature intends to deal only with future events.

In the case of S v John Ndlovu: State v Kenneth Chitando HH-06-070.  Nkomo & Anor v Attorney General & Ors 1993 (2) ZLR 422   the exception was also given as follows;

“If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give such an operation.”

This CBA clearly stated that;

“Any employer who owes an employee any amount arising out of any dispute in terms of the contract of employment irrespective of when the dispute first arose shall pay the amount arising at the prevailing rate irrespective of the rate applicable at the time the dispute arose.”

The clear interpretation of these provisions shows that the legislature intended the provision to apply in retrospect.  Past and future disputes were covered by this provision.  The money that was due and owing in 2004 was covered by the proviso.  Had the Appellant fully complied with the Arbitral Award before the CBA of 2010 they would not have been affected by this proviso.

It is this court’s view that the provision of the Collective Bargaining Agreement was properly applied by the Arbitrator.

This court therefore finds that the appeal lacks merit.

Accordingly it is hereby ordered that

The appeal be and is hereby dismissed.

H. MUKONOWESHURO & PARTNERS, Appellant’s legal practitioners

MAPONDERA & COMPANY, Respondent’s legal practitioners