Tinotenda Munzvekure v Zimbabwe National Roads Administration

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/339/24
HARARE, 26TH MARCH, 2024,
CASE NO.LC/H/94/24
24TH JULY, 2024 AND 19TH AUGUST, 2024
In the matter between:-
TINOTENDA MUNZVEKURE
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 26TH MARCH, 2024,
24TH JULY, 2024 AND 19TH AUGUST, 2024

In the matter between:-

TINOTENDA MUNZVEKURE
And

ZIMBABWE NATIONAL ROADS
ADMINISTRATION

Before Honourable Chivizhe, J:

For Appellant: Mr. G. Laita (Legal practitioner)
For Respondent: In Default

CHIVIZHE, J:

On 24th July, 2024 the court handed down an order under reference
LC/H/ORD/892/24 in the following terms;

1. The appeal be and is hereby struck off the roll with costs.

2. The reasons are to follow.

The following constitutes the reasons for the order as granted.

The matter was placed before the court as an appeal against a determination of the Respondent
Appeal’s Committee which determination had been handed down on the 18th of January
2024. The appeal was not opposed. This was despite proof of proper service of the notice of appeal on the Respondent. The court instead of granting a straight default judgment as provided under Rule 37(a) of the Labour Court Rules, 2017 opted to proceed with the hearing on the merits. On the date of set down, Mr Laita, for the Appellant appeared and presented arguments on the merits of the matter. After listening to his submissions, the court reserved judgment on the merits. During the period when the court was writing a judgment an issue came to the court’s attention. The issue related to whether the court had jurisdiction to entertain the appeal as placed before it in view of the fact that the appeal was premised on completed internal disciplinary proceedings convened under an employment code of conduct. The issue arose in view of the amendment to Section 101(5) of the Labour Act [Chap 28:01] by the Labour Amendment Act, 2023. My interpretation of that provision was that the Legislature had made a major policy shift in that it was no longer proper for a litigant to approach directly the Labour Court with an appeal against a determination of the internal appeals officer in proceedings that have been convened under an employment code. A litigant had to first refer the appeal to either the Labour Officer or Designated Agent at the National Employment Council whichever applied.

In view of the position having arisen through relatively new legislation which had not as yet been subject to interpretation by any court the court wrote to Mr Laita to request him to file supplementary heads of argument on the issue of jurisdiction. Mr Laita did file the Heads of Argument on 26th June, 2024. The supplementary heads of argument however did not make any reference to the jurisdictional point as raised by the court. They instead focussed on other issues not raised by the court. The court again requested Mr Laita to personally appear before the court to present his argument. He was said to be unavailable on the particular day. He instead sent in another lawyer Mr. V. Kasvaurere from his firm to stand in for him.

Mr Kasvaurere, when he appeared indicated that his instructions were to present arguments based on the issue of dies induciae for the filing of pleadings under the Labour Court Rules, 2017. He was not aware of the jurisdictional point as raised by the court which was pertaining to Section 101(5) of the Labour Act [Chapter 28:01]. On this basis, he was seeking for a postponement to enable Mr Laita to personally appear and to respond to the issue as pointed out by the Court. In view of the fact that Mr Laita had already been granted an opportunity to file supplementary heads and had chosen to disregard the point, the court was disinclined to extend any further indulgences. The court only gave Mr. Laita up to the end of the day to file his written submissions on the jurisdictional issue. The court noted that as at the end of that day no papers had been filed by Mr Laita. The court consequently proceeded to determine the point as taken mero motu by the court.


THE LAW AS APPLIED TO THE FACTS.

In **Muchakata vs Netherburn Mine 1996 (1) ZLR 153 (S) at 157(A)** the Supreme court held that a point of law that goes to the root of the matter can be raised at any stage of the proceedings. Apart from the litigant the court can also raise the point *mero motu*. The situation where an issue of law, particularly one which touches on jurisdiction is raised even after judgment is reserved, is also not new in this jurisdiction. A similar situation arose before this court and the Supreme Court in determining the issue on appeal outlined the correct approach that the court ought to take in such a situation. See in this respect **Zimasco Private Limited vs Maynard Farai Marikano SC 06-14**.

The court is required in such circumstances to call for further arguments to be presented by the parties on the jurisdictional point as taken. The matter also has to be set down and the parties given an opportunity to appear and present oral argument before a final determination is made on the point. In this case, the initial proceedings having been undertaken in Respondent’s default it was to the Appellant party only that notification of the jurisdictional point raised *mero motu* by the court was sent. The Appellant party, as directed by court, duly filed the supplementary heads of argument. The Heads of argument however did not address the jurisdictional point raised. The Appellant’s Counsel was further requested to appear and present oral arguments. The Appellant’s Counsel appeared and advised that they did not have any submissions to make on the point. The request for a further indulgence through a postponement in order for Mr Laita to appear was dismissed. Mr Laita having been granted up to end of day to file the supplementary arguments still did not file the papers. In view of these circumstances, the court proceeded to determine the point.

Jurisdiction refers to the court’s power or competence to hear and determine the type of case or matter brought before it. See **Medicines Control Authority vs Toronga and 3 others SC 10-17**. Jurisdiction is also a point of law and can be raised *mero motu* at any stage of the proceedings. See **Mtukwa vs National Dairy Co-operation Ltd 1996 (1) ZLR 341(S)**. The question raised in this case as to whether or not the court had jurisdiction to hear the present appeal is a critical point of law. This court could not proceed to determine the matter unless it was satisfied that it had the jurisdiction to do so. The fact that the party that was before the court i.e. the Appellant party had elected not to comment on the point would not deter the court. This was clear because even if both parties had been present on the date of hearing and they opposed the point, they would still not be in a position to confer jurisdiction where the circumstances clearly showed that the court had no jurisdiction. In other words, the jurisdiction of the court is not conferred on it by the parties. It is conferred by relevant legislative pronouncements. This was the basis on which the court proceeded therefore to determine the jurisdictional point.

The facts clearly showed that the Appellant was disciplined under a Code of Conduct which provided for a direct appeal to the Labour Court. The notice of appeal in this case had been filed on 8th February, 2024 against the determination of the internal appeals committee clearly suggesting that the matter had been completed internally. It was also clear to the court that at the time of noting his appeal, the law had taken a major policy shift through the amendment of the **Labour Act** by the **Labour Amendment Act, Number 11 of 2023**.

The effect of **Section 31(b)** of the **Labour Amendment Act, Number 11 of 2023** was to amend **section 101(5)** by insertion of a proviso. The intention of the Legislature was clear that Labour Officers were being granted power to hear and determine appeals from internal appeal bodies. Direct access to the Labour Court was effectively done away with. This was clear from the changes made to **section 101(5)**. Where **Section 101(5)** used to read as follows:

“Notwithstanding this part, being subject to subsection (6), no labour officer shall intervene in any dispute or matter which is liable to be subject of proceedings under an employment code, nor shall he intervene in any such proceedings.”

The same section after the insertion of the proviso now read as follows;

“(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

Provided that at the conclusion of such proceedings and notwithstanding anything to the contrary in an employment code, at the instance of any party aggrieved by these proceedings may appeal to a labour officer within 30 days of the conclusion of the proceedings whereupon the labour officer shall attempt to conciliate the dispute in terms of section 93 or exercise any other power provided for in that section.”
 It was apparent therefore on the basis of **Section 101(5)** as amended that an appeal against a determination made in internal disciplinary proceedings under the employment code, had to be noted to the Labour Officer.

The circumstances in this case showed that the Appellant intended to appeal against a determination of the Respondents internal appeals committee handed down on the 18th of January 2024. On the basis of **Section 101(5) of the Act** the appeal was clearly improperly placed before the court as this court had no jurisdiction to determine the appeal. It was also worth noting that this court had already in two other matters involving the same employer granted orders to rescind previous orders made granting appeals in similar circumstances to this matter. In both cases it was reflected in the pleadings by the parties that the appeals were being redirected to the relevant National Employment Council for determination. The relevant cases were filed under reference **LC/H/392/24 Zimbabwe National Road Administration vs Simbarashe Manema and LC/H/441/23 Zimbabwe National Road Administration vs Charity Kanyimo**. There was in my considered view no reason why this matter had to be handled differently. This was the reason why the court proceeded to hand down an order for the appeal to be struck off the roll for the reason of lack of jurisdiction on the part of the court to hear and determine the appeal as filed.
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