Nyasha Faith Magondo (Labour Officer) v Sevah Zinyowera & 45 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/92/23
HARARE, 11 JANUARY, 2023
CASE NO. LC/H/108/21
AND 30 MARCH, 2023
In the matter between:-
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE
HARARE, 11 JANUARY, 2023
AND 30 MARCH, 2023

Judgment No. LC/H/92/23
Case No. LC/H/108/21

In the matter between:-

NYASHA FAITH MAGONDO (LABOUR OFFICER)
Applicant

Versus

SEVAH ZINYOWERA
6th Respondent

ENWELL CHIPURIRO
8th Respondent

CONRADE MUTAPURI
45th Respondent

DAVID WHITEHEAD TEXTILE LIMITED
47th Respondent

Before The Honourable L. Hove, Judge:

For Applicant : In Person
For 6th, 8th and 45th Respondents : Mr Zvidzai (Legal Practitioner)
Mr Zinyengere (Legal Practitioner)
For 47th Respondent : Practitioner

HOVE J:

This is an application in terms of section 93 (5a) and (b) of the Labour Act [Chapter 28:01] (the Act).

The applicant ruled in favor of the employees.

In response to the application for confirmation of the draft ruling, the employer raised several preliminary issues which it alleged were capable of disposing of the matter.


These were: - Jurisdiction

1. It was argued that the Labour officer had no jurisdiction to deal with the matter as the employees were regulated by a functional national employment council (NEC). In terms of section 6 (3a) of the act. The Labour officer could not adjudicate over a matter for which a functional and registered NEC is in place. It was also argued that the applicant could not issue a draft ruling since she had attempted to conciliate the parties.

Matter had been placed before the Master of the High Court

2. It was argued that the applicants had made their claims before the master of the high court in respect of pre judicial management claims. The Labour officer exceeded her mandate and dealt with a claim which ought not to have been placed before her.

3. The Labour officer ought not to have dealt with the matter which had prescribed. This, it was argued, was in view of the provisions of section 94 of the Act which sets the prescriptive period at 2 years. The claims related to money owed as at August 2015 but the claims were only filed before the Labour officer on 25 April 2018.

Proceedings *void ab initio* for want of leave

4. At the time of the claims being dealt with by the Labour officer, the $47^{th}$ respondent i.e. the employer’s company was under judicial management.

All legal proceedings were suspended during the duration of the judicial management exercise. A litigant seeking to sue the employer ought to have first sought the leave of the High Court to be allowed to sue. This was allegedly not done. It was argued therefore that the proceedings were unlawful for failure to comply with a lawful court order issued by the High Court. It was submitted that on this point alone, the matter should be disposed of.


Analysis

The court will first consider whether or not the proceedings were void ab initio.

The Respondent argued in response to this preliminary point that leave of the High Court was not sought before the claims were brought. The factual allegation was thus acceded to.

The employees’ argument was however that the employer did not raise the issue before the Labour officer and must therefore be held to have acquiesced or be taken to have agreed to proceed without the leave of the High Court and cannot be allowed to resile from what it acquiesced to during the confirmation proceedings.

The employees’ argument is flawed and cannot carry the day. This is because the position of law is that anything done contrary to the law is illegal even if the parties agreed to proceed outside the provisions of law. Parties cannot act outside the law.

The failure to follow both a statute and a court order which remains extant renders the application premature and fatally defective. The employees ought to have complied with the requirement to first seek leave of the High Court before bringing the proceedings against their employer who was under judicial management. The High Court in *GN Mlotshwa v DWTC and 6 Others* HH 78|17 upheld this point.

It is settled law that anything done contrary to law is void and unlawful. In *Mcfoy v United Africa Co Ltd* (1961) 3 ALL ER 1169 (PC) at 117 21 it was stated that any proceedings which are contrary to law are incurably bad. It stated that “every proceeding which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse.”

It is clear therefore that the proceedings before the applicant were bad at law since they were founded on proceedings against the employer which were fatally defective for failure to seek the leave of court to sue the employer who was under judicial management. All the proceedings which flowed from this fatally defective act are themselves fatally defective. The proceedings before the Labour officer were therefore fatally defective.


The fact that the employer may have acquiesced to the proceedings before the Labour officer cannot assist the employees. This is so because the court has no equitable jurisdiction to grant relief to a party seeking to enforce an act prohibited by law. In this regard see the case of *Dube v Khumalo* 1986 (2) ZLR 103 (SC) where the principle that the courts cannot aid a party to defeat the clear intention of an ordinance or statute. Courts of justice cannot recognize and give validity to that which the legislature has declared shall be illegal and void. The Courts will not permit to be done indirectly and obliquely what was expressly and directly forbidden by the legislature. *In casu*, it is the provisions of section 301 (1) of the now repealed companies Act [*Chapter 24:03*] which were then applicable. See also the case of *Mafuta Chioza v Smoking Williams Siziba* SC 4|15. Parties cannot agree to do that which is illegal.

It is therefore for the sole reason that the proceedings before the Labour officer were based on initial proceedings which were null and void that I find that this matter ought to be dismissed.

Having found thus, there is no need to consider all the other issues and preliminary points which were still pending before the court.

**Order;**

The application for confirmation is dismissed with each party bearing its own costs.

*IEG Musimbe and Partners*, legal practitioner 6th, 8t and 45th respondents *Zinyengere and Rupapa*, legal practitioner for 47th respondent


4
--- END OCR FALLBACK ---