Sunningdale 2 Medical Centre v Joshua Kachasu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/73/23
HELD AT HARARE ON 15TH NOVEMBER, 2022
CASE
JUDGMENT NO. LC/H/……/2023
CASE NO. LC/H/781/22
---------




IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/73/23

HELD AT HARARE ON 15TH NOVEMBER, 2022      CASE NO.LC/H/781/22

AND ……………., 2023

In the matter between:-

SUNNINGDALE 2 MEDICAL CENTRE					APPLICANT

AND

JOSHUA KACHASU							RESPONDENT

Before the Honourable Makamure, J.

For the Applicant		:		Mr Shonhai (Legal Practitioner)

For the Respondent	:	          Mr Masasire (Legal Practitioner)

MAKAMURE J.

This is an application for condonation for late filing an application for review. It is opposed. At the commencement of the proceedings the Court drew the applicant’s attention to the terms of the draft order. Those terms were:

“IT IS HEREBY DECLARED THAT:

Application for condonation for late application be and is hereby granted.

The application for review in case number………be and is hereby granted in terms of the attached.

There be cost of suit”.(Emphasis added)

Mr Shonhai who appeared for the applicant addressed the court stating  that he sought to make an application for an amendment by deleting and making a substitution of part of the prayer. He stated that the prayer should read:

“IT IS HEREBY DECLARED THAT:

The application for condonation for late application for review be and is hereby granted.

The applicant shall file the application for review within 7 days from granting of this order.

There be cost of suit”(Emphasis added).

The concern of the court when it drew the applicant to the term of the prayer was to find out whether or not this court has jurisdiction to make a declarateur. The applicant’s legal practitioner on the other hand was concerned about paragraph 2 of that prayer. Further I did not hear the respondent’s legal practitioner to make any submission on this issue despite the Court having raised concern about the prayer. Parties proceeded to argue the application for condonation of late filing an application for review.

JURISDICTION

It is clear that the prayer touches on the jurisdiction of this Court. The relief sought must fall within the jurisdiction of this Court. If it does not then the matter cannot be held to be properly before this Court.

It is trite that this Court is a creature of Statute. It can only do those things which are within the four corners of the Statute. The jurisdiction of the Labour Court is set out in S 89 of the Labour Act [Chapter 28:01] (the Act) as follows:

‘89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions—

(a) hearing and determining applications and appeals in terms of this Act or any other

enactment; and

(b) hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) referring a dispute to a labour officer, designated agent or a person appointed by the Labour

Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section

ninety-eight to hear and determine an application;

(d1) exercise the same powers of review as would be exercisable by the High Court in respect of

labour matters;

[Paragraph inserted by section 29 of Act 7 of 2005]

(e) doing such other things as may be assigned to it in terms of this Act or any other enactment.

(2) In the exercise of its functions, the Labour Court may—

(a) in the case of an appeal—

(i) conduct a hearing into the matter or decide it on the record; or

(ii) confirm, vary, reverse or set aside the decision, order or action that is appealed

against, or substitute its own decision or order; or

(iii) ….

[Subparagraph repealed by section 29 of Act 7 of 2005]

(iv) …..

[Subparagraph repealed by section 29 of Act 7 of 2005]

(b) in the case of an application made in terms of subparagraph (i) of subsection (7) of section

ninety-three, remit it to the same or a different labour officer with instructions directing that

officer to attempt to resolve it in accordance with such guidelines as it may specify;

(c) in the case of an application made in terms of subparagraph (ii) of subsection (7) of section

ninety-three, make an order for any of the following or any other appropriate order—

(i) back pay from the time when the dispute or unfair labour practice arose;

(ii) in the case of an unfair labour practice involving a failure or delay to pay or grant

anything due to an employee, the payment by the employer concerned to the

employee or someone acting on his behalf of such amount, whether as a lump sum or

by way of instalments, as will, in the opinion of the Labour Court, adequately

compensate the employee for any loss or prejudice suffered as a result of the unfair

labour practice;

(iii) reinstatement or employment in a job:

Provided that—

(i) any such determination shall specify an amount of damages to be

awarded to the employee concerned as an alternative to his reinstatement

or employment;

(ii) in deciding whether to award damages or reinstatement or employment,

onus is on the employer to prove that the employment relationship is no

longer tenable, taking into account the size of the employer, the

preferences of the employee, the situation in the labour market and any

other relevant factors;

(iii) should damages be awarded instead of reinstatement or employment as a

result of an untenable working relationship arising from unlawful or

wrongful dismissal by the employer, punitive damages may be imposed;

[Proviso substituted by section 29 of Act 7 of 2005]

iv) insertion into a seniority list at an appropriate point;

(v) promotion or, if no promotion post exists, pay at a higher rate pending promotion;

(vi) payment of legal fees and costs;

(vii) cessation of the unfair labour practice;

(d) in the case of an application other than one referred to in paragraph (b) or (c), or a reference,

make such determination or order or exercise such powers as may be provided for in the

appropriate provision of this Act;

(e) subject to subsections (3) and (4), make such order as to costs as the Labour Court thinks fit.

(3) The costs in connection with any proceedings before the Labour Court shall be payable in

accordance with the scale of costs for the time being in use in the court of a magistrate in civil cases,

unless the person presiding over the Labour Court directs that the scale of costs for the time being in

use in the High Court shall apply.

(4) Any costs awarded by the Labour Court shall be taxed by the registrar of the Labour Court in

terms of subsection (3) and the taxation of such costs shall be subject to review by a Judge of the

Labour Court at the instance of any interested party.

[Subsection amended by Act 3 of 2016]

(5) For the purpose of taking evidence on any question before it, the Labour Court shall have the

same powers as the High Court to summon witnesses, to cause the oath to be administered to them, to

examine them and to call for the production of books, plans and documents.

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and

determine any application, appeal or matter referred to in subsection (1)’

In Tendai Tamanikwa & 30 others vs Zimbabwe Manpower Development Fund SC33/13 it was stated that the Labour Court has got no jurisdiction to grant a declaratory. This is what the Supreme Court stated:

“The Labour Court is a creature of statute and can only exercise those powers that it has bestowed upon it by its enabling Act”.

In Rebert Dombodzvuku v CMED (Pvt) Ltd SC 31/12 The Supreme Court stated that:

“This Court is creature of statute and it operates within the confines of the enabling Act. The Applicant conceded that there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly this application must therefore fail”. ( Emphasis added).

Equally in the present matter, a declarateur is not provided for by the Labour Act. The application can therefore not succeed.

It is in view of the foregoing that this application is not properly before this Court.

Accordingly it is ordered that the matter be and is hereby struck off the roll with costs.

Macheyo Law Chambers	-	Applicant’s Legal Practitioners

Musoni Law Cambers	-	Respondent’s Legal Practitioners