NEC Electronics, Communications, Radio, TV Manufacturing and Allied Industries v NEC Communications and Allied Services and The Registrar of Labour N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/287/24
HARARE, 29 MAY, 2024
CASE NO LC/H/370/24
03 JULY 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 29 MAY, 2024

03 JULY 2024

JUDGMENT NO LC/H/287/24 CASE NO LC/H/370/24

NEC ELECTRONICS, COMMUNICATIONS,	APPLICANT RADIO, TV MANUFACTURING AND ALLIED

INDUSTRIES

NEC COMMUNICATIONS AND ALLIED	1ST RESPONDENT SERVICES

THE REGISTRAR OF LABOUR N.O.	2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- Mr R. Matsikidze, Attorney

For Respondent	- Ms F. Sibanda, Attorney

MUSARIRI, J:

In its heads of argument respondent raised four (4) points in limine. At the onset of oral argument in this Court, respondent abandoned the first 2 points. It persisted with the remaining points shall be dealt with in turn.

1

That the Labour Court does not have jurisdiction over the matter:

The point is expatiated in respondent's heads of argument as follows,

‘’3.1 The order being sought by the applicant's interdictory in nature and therefore this Honourable court has no jurisdiction to entertain the matter. It is thus clear on the basis of authority, that the Labour Court has no power or jurisdiction to grant an interdict.

The applicant’s pleaded case of what he in reality terms to be an interdict thus resorts

outside the realms of jurisdiction of this Court to consider and decide such case must be equally refused on the basis of want of jurisdiction.

The question that this case raises is whether or not the Labour Court has the jurisdiction to grant an interdict.

The draft order filed by applicant reads

‘’The Application herein made in terms of section 46 of the Labour Act (28:01) be

and is hereby granted.

The respondent’s scope of coverage excludes internet and email service providers.

The respondent cease to register companies operating within the Internet and email service provision sector.

The respondent de-registers the afore-mentioned companies (Liquid Technologies and Power-tel Communications (Pvt) Ltd that are currently registered with it and to transfer them to their correct NEC, which is the applicant.

The respondent pays the costs of suit on the attorney and client scale.’’

Respondent argued that the relief it seeks is permissible in terms of Section 46 of the Labour Act

Chapter 28:01 which provides that,

‘’In the event of any dispute as to -

The extent or description of any undertaking or industry;or

Whether any employees are managerial employees;

the matter shall be referred to the Labour Court for determination’’

It is clear that the parties are locked in dispute as to the extent of coverage of their respective sector or industry. The quoted statutory provision specifically refers such dispute to the Labour Court for determination.Respondent argued in general terms that the Labour Court is prohibited from issuing interdicts. The argument relates to the specific order which the Court may grant. That aspect of the case should be raised in due course when the parties deal with the merits of the case. The main point as appears from Section 46 is that this Court has jurisdiction over the matter.

That the application is defective by reason of non-joinder of interested parties;

The point is argued in respondent’s heads thus,

‘’4.1 This application is defective in nature as there is material non-joinder of interested parties in the matter. The dispute is on the alleged encroaching scope of coverage where each party is showing that they have the right to act in the manner they are doing. The companies at the centre of the dispute are Liquid Technologies and Powertel.

Communications (Pvt) Ltd but they have not been joined to the proceedings. The joinder of these companies should be able to assist this Honourable Court on what is it that they actually do so that the court can make a determination with a clear picture of which National Employment Council they ought to belong to.’’

Applicant counter-argued that it is not necessary to cite the named companies. It was further argued that the registration of the companies by one of the parties is simply evidence of encroachment of the other party’s sector. It was also argued that no cause may be dismissed by reason of non-joinder, See Wakatama vs Madamombe SC 10/12.

This Court is persuaded by applicant’s argument. It is consistent with the tenor of Section 46 of the Labour Act which requires the court to determine the extent of a sector or industry in  general. The anticipated determination by the Court may then be used by the parties to ascertain which specific companies fall under or within its sector. There is no need to cite the named companies in this suit.

CONCLUSION

It is concluded that the both points in limine ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The Respondent’s points in limine be and are hereby dismissed;

The Registrar of this Court shall re-set the matter for continuation on the earliest available date; and

Each party shall bear its own costs.

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

Wherefore it is ordered that,

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