University of Zimbabwe v Zimbabwe State Universities and Allied Workers Union (ZUAWU) & 15 Others

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/391/25
CASE NO. LC/H/741/25
ZIMBABWE HELD AT HARARE
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT NO. LC/H/391/25

CASE NO.	LC/H/741/25

IN THE MATTER BETWEEN:

UNIVERSITY OF ZIMBABWE	APPLICANT

Versus

ZIMBABWE STATE UNIVERSITIES AND

ALLIED WORKERS UNION (ZUAWU)	1st Respondent ZIMBABWE STATE UNIVERSITIES

UNION OF ACADEMICS (ZISUUA)	2nd Respondent

ALYSSA NOSISA CHABATA N.O.	3rd Respondent

PRISCILLA GWEKWERERE N.O	4th Respondent NATIONAL UNIVERSITY OF SCIENCE

AND TECHNOLOGY	5th Respondent

GREAT ZIMBABWE UNIVERSITY	6th Respondent

ZIMBABWE OPEN UNIVERSITY	7th Respondent

HARARE INSTITUTE OF TECHNOLOGY	8th Respondent

CHINHOYI UNIVERSITY OF TECHNOLOGY	9th Respondent

MIDLANDS STATE UNIVERSITY	10th Respondent

LUPANE STATE UNIVERSITY	11th Respondent

BINDURA UNIVERSITY OF SCIENCE

AND TECHNOLOGY	12th Respondent

GWANDA STATE UNIVERSITY	13th Respondent MARONDERA UNIVERSITY OF AGRICULTURAL

SCIENCES AND TECHNOLOGY	14th Respondent MANICALAND STATE UNIVERSITY OF

APPLIED SCIENCES	15th RESPONDENT

THE MINISTER OF HIGHER AND TERTIARY EDUCATION, INNOVATION, SCIENCE AND

TECHNOLOGY DEVELOPMENT	16th RESPONDENT

2nd OCTOBER 2025 and 17 October 2025 BEFORE THE HONOURABLE GONESI J

For the Applicant:	T. Chagudumba,

For the 1st & 2nd Respondents:	E. E. Matika No appearance for the 3rd to 16th respondents

GONESI J: This is an application for review in which the following order is sought:

The application for review succeeds.

The Certificate of No Settlement issued on 9 July 2025 by the 3rd and 4th Respondents as Labour Officers be and is hereby set aside.

The 1st to 4th respondents shall jointly and severally, the one paying the other to be absolved pay the costs of suit.

FACTUAL BACKGROUND

The 1st and 2nd respondents (the unions) were having a dispute with the applicant and the 5th to 15th respondents concerning salaries and wages since 2018. On the 16th of March 2021, the Unions referred a dispute to the Ministry of Labour for Conciliation concerning this issue. A conciliation hearing was held on 12 April 2021 and the parties agreed to the settlement of the dispute, resulting in the issuance of a Certificate of Settlement on the same day. The Unions alleged that the State Universities failed to comply with the Certificate of Settlement, resulting in the Unions going back to the Ministry of Labour with a dispute of alleged non-compliance with the Certificate of Settlement on 12 August 2022. The dispute could not be resolved through conciliation, such that the labour officers issued a draft ruling on 27 March 2023 ordering the State Universities to comply with the Certificate of Settlement and to address the salary issues which were being raised.

On 11 May 2023, the labour officers filed an application with this court for confirmation of their draft ruling. However, the Labour Amendment Act promulgated on the 14th July 2023 made the draft ruling a final ruling in favour of the Unions by operation of law. The Unions made various efforts to enforce the extant final judgment. On 23 April 2025, the Unions referred the same dispute for conciliation to the Ministry of Labour and the 3rd and 4th respondents were appointed as the labour officers to handle the dispute. On the 10th of June 2025, the 16th respondent indicated that there had been an offer from the Government to address the Unions’ concerns, and he undertook to furnish the applicant with the Government offer on or before 12th June 2025. In view of this development, it was agreed that the

applicant would allow the process relating to the Government offer to be pursued before any legal arguments could be made in the matter.

The Government's offer was received by the Union’s members sometime on 13th June 2025. The Unions provided their counteroffer on 19 June 2025 and no further negotiations took place in relation to the Government offer and the counteroffer. The matter was heard, and the applicant raised two preliminary points on res judicata and the separation of cases. The Unions argued that it was improper to raise the preliminary point on jurisdiction when the conciliation proceedings had already been completed. The 3rd and 4th respondents did not make any decision on the preliminary points but indicated that they were going to issue a certificate of no settlement.

Aggrieved by the procedure taken by the labour officers, the applicant has noted this application for review on the following grounds:

GROUNDS FOR REVIEW

“1. Gross irregularity in the proceedings in that 3rd and 4th respondent as the adjudicating authority refused to decide at all on the applicant’s preliminary points in respect of whether the matter was res judicata and the separation of cases.

2. The 3rd and 4th respondents had no jurisdiction to entertain the matter by reason of res judicata since there is an extant ruling between the same parties on the same issues that were brought for conciliation before them.”

Appellant’s Case

At the commencement of the hearing, Mr. Chagudumba gave a background of the matter which gave rise to this application for review. Important to note was the submission that applicant gave notice at the commencement of conciliation proceedings that he had preliminary points

and it was agreed that the preliminary points would be held in abeyance pending the joinder of the Minister of Finance and possible settlement. It was submitted that after realisation that there was no hope for settlement, the appellant indicated that it was arguing the points in limine, which was done and after the points were heard, no ruling was made. It was submitted by Mr. Chagudumba in relation to the 1st ground for review that there was gross irregularity in the proceedings in that the applicant’s preliminary points were argued but never determined. It was submitted that the respondent and the labour officers did not object to the points in limine being argued. It was submitted that the argument in relation to the time at which the preliminary points were raised, which is at the end of the proceedings, does not mean the applicant waived their right; in actual fact, the respondents were taking advantage of the generosity of the government offer. It was submitted that the proceedings are null and void and the certificate of no settlement does not hold water.

In relation to the 2nd ground of appeal, it was submitted by Mr. Chagudumba that the respondents did not take issue with the jurisdictional issue that was raised, which related to res judicata. It was submitted that the dispute, which was referred to the labour officers in 2021 and the one in 2025, were just the same. It was submitted that the disputes were between the same parties, with the same subject matter and the same cause of action. It was submitted that the dispute in 2021 initially went to the labour officers with a notice of intention to strike for wages and in 2025, they alleged non-payment of fair and reasonable wages. It was submitted that what changed was the wording, otherwise, everything else remained the same. Mr. Chagudumba concluded by submitting that the application had merit and prayed that it be granted. The court inquired about why the applicant had sought for costs against the 3rd and 4th Respondent who were cited in their official capacities. It was submitted that costs were sought because of the conduct of the respondents, who were aware that the points in limine were heard and despite

that, they did not make a decision. However, counsel submitted that he had no qualms with costs not being awarded to them.

1st and 2nd Respondent’s Submission

In response, Mr. Matika submitted that by and large the 1st and 2nd Respondents would abide by the papers filed of record. Counsel submitted that during conciliation, the applicant had put back their points in limine because they did not want them to stand in the way of a possible settlement. Mr Matika argued that the applicant was party to the conciliation proceedings and as such if it was believed that the labour officers had no jurisdiction, they must not have allowed conciliation to proceed. Had conciliation yielded a settlement, the applicant was not going to raise the preliminary points, so argued counsel.

On res judicata, Mr. Matika contended that the issue of res judicata had no merit as the two cases were different. Counsel argued that the terms of reference had no bearing on the fair and reasonable wages. A state negotiating forum and a national employment council were not the same, so argued counsel and hence the dispute was completely different. Mr Matika submitted further that the labour officers have powers to only issue a certificate of settlement or a certificate of no settlement, and not a determination.

It was Mr Matika’s contention that the applicant waived the right to raise the preliminary points and as such the application for review had no merit as the points were raised after conciliation had failed. Counsel argued further that the point of res judicata had no merit because the matters were completely different. The court inquired from counsel if indeed 1st and 2nd respondent had been given notice of the intention to raise preliminary points, to which counsel confirmed that notice had been duly given but because there was a possibility for settlement, they were put on hold. Counsel argued that it was therefore improper for the applicant to seek to make submission on preliminary points after a realisation that settlement had failed. Mr Matika

submitted that though a point of law can be raised anytime, in this case however it was improper for the applicants to do so as the labour officers were now functus officio. The court inquired if both parties had argued the preliminary points, which Mr. Matika affirmed. The court further inquired if the certificate of no settlement had already been signed when the preliminary points were argued to which Mr. Matika answered in the negative. It was also the inquiry of the court whether the labour officers made a finding after the parties had argued and Mr. Matika submitted that they had no powers to do that. It was submitted that the powers of labour officers were limited and they did not have the power of issuing final orders.

The court also inquired from Mr. Matika if it was incorrect that the cause of action was the same, which is the issue of wages to which counsel submitted that the issue of wages would always be there in the employment set-up but the terms of reference were different. On the issue of costs, Mr Matika moved the court to mulct applicant with costs for bringing an unmeritorious application before the court.

Mr. Chagudumba, in response, submitted that the issue of waiver was contradictory. Counsel submitted that if the respondent had issues with the waiver, it had to raise them before the points were argued. Mr Chagudumba contended that the respondents were not the spokespersons of the labour officers who were supposed to speak for themselves that they did not have jurisdiction. The court inquired on the issue that the National Employment Council and the State Negotiating Forums are different according to the respondent to which counsel submitted that what was important was to look at the purpose of the organisations, which was that they were both platforms to discuss salary issues. It was submitted that a look at the matter holistically showed that the issues were the same.

ISSUE FOR DETERMINATION

Whether or not the 3rd and 4th respondents committed a gross irregularity in the proceedings by failing to adjudicate the applicant’s preliminary objections.

Whether the 3rd and 4th respondents lacked jurisdiction to entertain the matter due to the principle of res judicata.

APPLICATION OF THE LAW TO THE FACTS.

Whether or not the 3rd and 4th respondents committed a gross irregularity in the proceedings by failing to adjudicate the applicant’s preliminary objections.

The labour officers committed a material error in law by failing to consider the preliminary points duly raised by the applicant. These points, which included objections on the grounds of res judicata and the procedural separation of matters, constituted questions of law that ought to have been determined. It is a well-established principle of administrative law that preliminary legal objections may be raised at any stage of the proceedings, and once raised, they must be addressed and resolved by the adjudicating authority. The failure to do so amounts to a denial of procedural fairness and constitutes a reviewable irregularity. By declining to pronounce upon the applicant’s preliminary objections, the labour officers abandoned their duty to ensure that the proceedings were conducted in accordance with the law.

In the case of Heywood Investments (Private) Limited t/a GDC Hauliers v

Zakeyo SC-207-11, it was stated that;

It seems to me that the court a quo failed to appreciate the legal issue raised by the point in limine. It is incumbent upon a court before which an application is made to determine it. A court before which an interlocutory application has been made should not proceed to

determine a matter on the merits without first determining the interlocutory application.

In Grain Marketing Board v Martin Muchero SC 59/07 GARWE JA stated as follows at p 6-7 of the cyclostyled judgment: “Once the application to uplift the bar had been made, the court became seized with the matter. The court was enjoined to make a determination on that application. It did not do so. Instead it proceeded on the basis that there was no such application before the court. In this regard the court erred. I am satisfied that the trial judge erred in disregarding the oral application and proceeding as if none had been made.”

In the case of Goyel v Myrammar Farming (Pvt) Ltd T/A Cottzim and 6 Or s HH 146-23, it was stated that,

“It is trite law that a point of law can be raised anytime during the proceedings, more so where it goes to the root of the matter․”

Therefore, by failing to make a finding on the preliminary points raised, the labour officers committed a gross error warranting the setting aside of the proceedings a quo.

Whether the 3rd and 4th respondents lacked jurisdiction to entertain the matter due to the principle of res judicata.

In the case of Banda & Ors v ZISCO 1999 (1) ZLR 340 (S), it was stated that the requirements for a plea of res judicata were well established․ They are that-

the action must be between the same parties,

concerning the same subject matter and

founded on the same cause of complaint as the action in which the defence is raised.

It is trite to note that the two proceedings involved the same parties; a review of the respective records reveals that the terms of reference in each case were distinct, but what was sought to be achieved from them is, in both cases, a salary increment, thereby establishing that the subject matters are the

same. Furthermore, the causes of action in the two matters are generally identical. Accordingly, the doctrine of res judicata applies in this case.

In Pretorius v Barkly East Divisional Council 1914 AD 407 at 409, it was stated that,

"As to the first point, the requisites for a plea of res judicata have several times been laid down in this court․ The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denyssen & Ors (1885) 3 Menz 424, quoting Voet (44․2․3), are that the action in respect of which judgment has been given must have been between the same parties or their privies, concerning the same subject matter and founded upon the same cause of complaint as the action in which the defence is raised ․

․․

In order to determine the cause of complaint, the pleadings and not the evidence in the case must be looked at․"(my emphasis)

In Toro v Vodge Investments (Pvt) Ltd & Ors SC 15-17, it was stated as follows:

For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings. In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties, by making a finding in law and/or on fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.” (my emphasis)

It is pertinent to note that the relief sought in the prior proceedings and in the present matter is generally the same. A certificate of settlement was issued in the first matter. Consequently, the issues raised herein were adjudicated in the earlier case. In light of this, I find that this ground of appeal has merit.

Accordingly, the applicant’s claim that the procedure adopted by the labour officers was wrong has merit.

DISPOSITION

The application for review succeeds.

The Certificate of No Settlement issued on 9 July 2025 by the 3rd and 4th respondents as Labour Officers be and is hereby set aside.

Each party to bear its own costs.

Atherstone & Cook, applicants’ legal practitioners

Matika, Gwisai & Partners, 1st and 2nd respondent’s legal practitioner