Radisys Enterprises (Pvt) Ltd v Nancy Chioneso Njopera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/38/2024
HELD AT HARARE, 26 OCTOBER, 2023
CASE NO. LC/H/684/23
AND 2 FEBRUARY, 2023
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE, 26 OCTOBER, 2023

AND 2 FEBRUARY, 2023

In the matter between: -

JUDGEMENTNO.LC/H/38/2024 CASE NO. LC/H/684/23

RADISYS ENTERPRISES (PVT) LTD	APPELLANT V

NANCY CHIONESO NJOPERA	RESPONDENT

Before the Honourable CHIVIZHE, J In Chambers

REASONS FOR JUDGEMENT CHIVIZHE, J;

The matter was placed before me as an appeal against a draft ruling handed down by Labour Officer Madziya J on the 29th of March 2023. The appeal was as indicated filed on the basis of section 128(1) of the Labour Act [Chap 28:01] as amended by the Labour Amendment Act, No.11 of 2023 as also read with rule 19 of the Labour Court Rules, 2017. The appeal was filed on the 7th of September 2023.

The Respondent was opposed to the granting of the appeal. In her Notice of Response she indicated she did not agree with Appellant’s grievance with the draft ruling as captured in the grounds of appeal. She was in agreement with all the findings as made by the Labour Officer on the merits. She did not address the issue of the propriety of the appeal before the court.

Sufficient to note, that the Respondent was a self-actor.

After perusal of the file, I noted that indeed all the necessary documents had been filed and the matter was ready for set down. It came to my attention however that the matter may have been improperly placed before the court. It was clear that although the Appellant had outlined the basis of approaching this court as being section 128(1) of the Labour Act

[Chap28:01]as read with Labour Amendment Act No.11 of 2023, the appeal however did not comply with the tenets of that provision.

To elaborate it was clear that the Appellant was hinging its appeal on the basis of the transitional provisions to the Labour Amendment Act No.11 of 2023. Section 128(1) in the event reads as follows;

“128 Transitional provisions

(1) Where a labour officer made a draft ruling in terms of section 93(5)(c) and for what reason, the draft ruling was not registered with the Labour Court in terms of section 93(5a) and (5b) of the replaced provisions, such draft ruling shall automatically be deemed to be a judgement or ruling of the Labour Officer which for execution purposes shall be registered in the appropriate court: Provided an employer shall have a right of appeal of the Labour Court within 30 days after notice of registration.”

My reading of the transitional provisions was that all draft rulings issued by Labour Officers before the 14th of July, 2023 (Date of coming into operation of the amendment act) were affected by the Labour Amendment Act to the extent that , where the draft rulings had not been registered with the Labour Court before that date, any such “draft ruling” is

automatically deemed to be a “judgement” or “ruling” of the labour officer which has to be executed by the appropriate forum through either the Magistrates court or at the High Court depending on the quantum involved.

There is however a proviso to section 128(1) that an employer has a right of appeal to the Labour Court within 30 days after the notice of registration with either the Magistrates Court or High Court.

It was clear in casu that a draft ruling was rendered by the Labour Officer on the 29th of March, 2023. It was therefore clearly affected by the Labour Amendment Act, No. 11 of 2023. It had assumed the status of a “judgement” or “ruling” as at the 14th of July, 2023. The Appellant however in detailing its appeal in the Notice of Appeal stated that the appeal is against the “the whole draft ruling of the Labour Officer Madziya J dated 29 March 2023.” That was clearly wrong as of the 7th of September 2023 when the appeal was filed there was no longer a “draft ruling by Labour Officer Madziya J.” There was only a “ruling” by Labour

Officer Madziya J. On the basis of the transitional provisions it is only a “judgement” or “ruling” which is final and appealable provided the other conditions as also spelt out in the

transitional provisions are met. The two conditions precedent are that, firstly, the ruling has to be registered in the Magistrates court or the High Court. Secondly, the appeal to the Labour Court must be noted within 30 days of registration.

It was also noted that, in casu, the ruling was indeed referred for registration in the Magistrates court and the notice of registration formed part of the record. The appeal with the Labour court was also lodged within the 30 days of the notice of registration.

In my considered view, the issue of which determination was being appealed against was critical and could not be regarded as a mere technicality. The position of the law is clear that appeals to the Labour Court emanating from draft rulings drawn by Labour Officers have to be against a “judgement” or “ruling.” The Notice of Appeal in this instance referred to an appeal as against a “draft ruling.” Whilst accepting that the Labour Act allows for flexibility and latitude in the exercise of this court function the court however still had to act within the confines of the Labour Act and the rules. Reference is made to Zimbabwe Platinum Mines (pvt)(ltd) vs Marko Phuti SC 21/16. It was for these reasons the court handed down the order on the 27th of October, 2023, striking off the matter from the roll with no costs.