Tonderai Mutsago N.O. V Zimbabwe Human Rights Association & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/288/2020
HARARE, 15 OCTOBER 2020
CASE NO. LC/H/LRA/35/20
AND 4 DECEMBER 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/288/2020

HARARE, 15 OCTOBER 2020 				    CASE NO. LC/H/LRA/35/20

AND 4 DECEMBER 2020

In the matter between:

TONDERAI MUTSAGO N.O.					APPLICANT

versus

ZIMBABWE HUMAN RIGHTS ASSOCIATION		1ST RESPONDENT

JULY CHIMUTSANYA						2ND RESPONDENT

Before The Honourable Makamure J

For the Applicant			In person (Designated Agent)

For the 1st Respondent		Mr E. T. Moyo (Legal Practitioner)

For the 2nd Respondent		In person

MAKAMURE J:

This is an application for confirmation of a draft ruling and order. It is being brought in terms of section 93 (5a) (a) and (b) of the Labour Act [Chapter 28:01]. Both respondents oppose its confirmation but for different reasons. The first (1st) Respondent’s prayer is that the ruling by the applicant be set aside and be substituted by a finding that the 1st Respondent pays the 2nd Respondent the amount of USD $383-00. The 2nd Respondent says that the application be dismissed with costs on the punitive scale and such costs to be borne by the 1st Respondent and that the matter be referred back to the NEC and that it be arbitrated upon by a different person.

There were preliminary issues to be dealt with before the matter was heard. The first was that the 1st Respondent’s legal practitioners filed their papers out of time. The 1st Respondent’s legal practitioner made an oral application for condonation for late filing the notice of opposition in terms of Rule 29 (a). Such application was made from the bar. The court required the 1st Respondent to produce an affidavit deposed to on its behalf, showing good cause. For that reason, the matter was accordingly postponed. In due course an affidavit in support of the application was filed. After considering that affidavit, the court found that good cause was shown for the late filing of the notice of opposition. Accordingly, the notice of opposition and heads of arguments filed on behalf of the 1st Respondent are deemed to have been properly filed.

Now turning to the merits, the applicant prays that the draft ruling and order be confirmed. The 1st Respondent has raised the issue that the matter is not properly before the court.  This is the second preliminary issue. Mr Moyo who appeared for the 1st Respondent prayed that the matter be struck off the roll or be dismissed. The application to have the matter struck off is in view of the submission that the applicant failed to follow the guidelines laid down by the Supreme Court in the matter of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CCZ 6/20, (Isoquant). The Isoquant case held that a Designated Agent can either redress a dispute which has been brought before them or attempt to redress it. Where the dispute has been redressed, the Designated Agent can then not bring it for confirmation by this Court. Further the Act does not create an avenue for the validation of a final decision that is made by a designated agent in terms of s 63 (3a) of the Act. However, conciliation must be attempted. In the present matter, Mr Moyo pointed out that there is no proof on record that conciliation was attempted. What is on record is an adjudicative process conducted by the applicant. That being the case the guidelines laid down in the Isoquant case were not followed. This means that the matter is not properly before the court. The 2nd Respondent in his response raised factual issues which did not challenge the legal averments made on behalf of the 1st Respondent. For that reason, the court is persuaded to agree with Mr Moyo that the matter is not properly before the court.

In view of the foregoing, it is ordered that the matter be and is hereby struck off the roll.

Scanlen & Holderness, 1st Respondent’s Legal Practitioners