Wimbai G Nyamupandegu v Chemplex Corporation Limited t/a Dorowa Minerals Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/343/24
HARARE 6TH MARCH,2024, 26TH JUNE,2024
CASE NO.LC/H/873/23
23rd AUGUST, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 6TH MARCH,2024, 26TH JUNE,2024

JUDGMENT NO.LC/H/343/24 CASE  NO.LC/H/873/23

23rd  AUGUST, 2024

In the matter between: -

WIMBAI G NYAMUPANDEGU	APPELLANT

Versus

CHEMPLEX CORPORATION LIMITED	RESPONDENT t/a DOROWA MINERALS LIMITED

Before the Honourable CHIVIZHE, Judge:

For the Appellant	- Mr. A. Mufari (Legal Practitioner) For the Respondent – Mr. E. T. Moyo (Legal Practitioner) CHIVIZHE J;

On 26th June, 2024 this court issued an order in the following terms;

The first point in limine is upheld.

The second point in limine is also upheld.

The appeal, being fatally defective, by reason of wrong citation and also being prematurely placed before the court, is thus improperly before the court.

It is accordingly struck off the roll with costs.

The appellant having written to the Registrar requesting for reasons the following are the reasons. The matter had been placed before the court as an appeal against the determination made by the grievance and disciplinary committee which determination was delivered on the 29th of September, 2023.

BACKGROUND FACTS

The Appellant was employed by the Respondent as an Engineering Manager. He was charged with three counts of habitual and substantial neglect of duties. Following a full disciplinary hearing the  disciplinary hearing official  found him  guilty and subsequently dismissed him from employment. The Appellant appealed to the disciplinary and hearing

committee which upheld the decision of the disciplinary hearing official. The Appellant thereafter approached this court with his appeal seeking to set aside the decision of the grievance and disciplinary committee. In relief, he prayed for the decision of the grievance and disciplinary committee to be set aside and substituted with an order of not guilty, the penalty of dismissal to be consequently set aside and he would be reinstated to his original position without loss of salary and benefits. In the event that reinstatement was no longer tenable the parties were to approach this court for quantification of those damages.

POINTS IN LIMINE

The Respondent through its Notice of Response raised two points in limine;

Firstly, that the citation of Respondent was grossly irregular.

The second point was that the appeal was improperly before the court in total disregard of the peremptory provisions of the proviso to section 101(5) of the Labour Act [Cap 28:01]. The Respondent contended that the Appellant had prematurely approached this court by launching a direct appeal before this court.

The Respondents prayer was that should this court find both points to be merited, the appeal would be struck off the roll with costs.

PARTIES SUMBMISSIONS

In addressing the first point in limine, in his oral submissions, Mr. Moyo, for the Respondent, emphasized that the Appellant in his papers had referred to Chemplex Corporation Limited t/a Dorowa Minerals (Private) limited. There was however no person, legal or natural, answering to such a name. The Appellant had also in his papers referred to a second entity, Chemplex Corporation Limited, on its own. The Appellant had also referred to Dorowa Minerals Limited separately which was a non-existent entity. Mr. Moyo submitted, that, whilst it was not in dispute that the Appellant was employed by Dorowa Minerals (Private) limited and that Dorowa Minerals (Private) limited was a subsidiary of Chemplex Corporation Limited it was however improper for the Appellant to cite Dorowa Minerals (Private) limited as a trading name for Chemplex Corporation Limited. Mr. Moyo further submitted that whilst it

was correct as stated in Dalny Mine vs Banda 1999 (1) ZLR 220 referred to by the Appellant that labour matters ought not to be decided on technicalities, those technicalities must instead be made right, in this case there had been no such application to remedy the defect in the citation. It was Respondent’s contention therefore, that, the Appellant having failed to cite the correct Respondent before the court, the application was fatally defective. The Respondent was placing reliance on the Supreme Court decision in Fadzai John v Delta Beverages (Private) Limited SC40/17.

In regards the second point in limine, Mr Moyo submitted that on the basis of the recent amendments to the Labour Act, through the Labour Amendment Act No.11/2023 there was no provision for a direct appeal to the Labour Court from a determination of an internal appeal body in proceedings convened under an employment code of conduct. It was his further contention that on the basis of the Amendment Act, the labour processes had been altered to the extent that upon the proceedings terminating internally a litigant now had to approach a Labour Officer with his appeal. The Labour Officer would then procced to hear and determine the matter under the provisions of the amended section 93 of the Labour Act. This position was clearly captured in the new proviso to section 101(5). Under the new system, the matter would initially be placed before the Labour Officer for conciliation. Upon failure to conciliate the Labour Officer would escalate the matter for compulsory arbitration. Where one was aggrieved by a determination of the Arbitrator, an appeal would then be noted in the Labour Court by utilizing section 98(10) of the Labour Act. It was Mr. Moyo’s contention that the appeal was therefore prematurely before the court for that reason.

Mr. Mufari for the Appellant, in counter, submitted that both points in limine were without merit. In regards the first point in limine it was submitted that the Respondent was properly cited, as both names ‘Dorowa Minerals (Private) limited’ and ‘Chemplex Corporation Limited’ had been used interchangeably by the Respondent in correspondence to the Appellant. Reference was made, as examples, to the charge sheet (copy included in the record) and the minutes of the disciplinary hearing (also in the record). It was Appellant position that the employer, had, at all times, represented itself as Chemplex Corporation Limited. Dorowa Minerals (Private) Limited also appeared on the Respondents’ heads of argument. The Appellant’s position was, that, in the absence of the Respondent’s original certificate of

incorporation, the court had to find in his favour. that the Respondent had been correctly cited. The Appellant prayer was therefore for the first point in limine to be dismissed.

In regards the second point in limine, Mr. Mufari submitted that, this point was also lacking in merit. Whilst it was indeed the position of the law that that there is a general presumption that where there is new legislation introduced it is not intended to apply retrospectively; it was also the position that new legislation is also not designed to take away any existing rights. In this case the Respondent was relying on the provisions of section 101

(5) to support its position. The Appellant however was placing reliance on section 92D which makes provision for any person aggrieved by a determination of any entity to appeal directly to the Labour Court. That provision still remained in the Labour act even after the amendments in 2023. To the query by the court as to when the appeal in this case had been noted Mr Mufari responded by indicating that the appeal had been filed on the 30th of October 2023.

Mr. Moyo in his reply reiterated that both points in limine were clearly with merit. With regards to the first point in limine, it was his submission that the Appellant was clearly feigning ignorance of who the employer was. His job description which also formed part of the contract of employment clearly showed Dorowa Minerals (Private) Limited. It was also clear that in all the previous proceedings reference was made to Dorowa Minerals (Private) Limited. It was baffling how the Appellant was, in the appeal, now referring to Chemplex Corporation t/a Dorowa Minerals an entity which was non-existent. The citation was clearly fatal and the point in limine had to be upheld by the court.

In regards the second point in limine Mr. Moyo submitted that it was a given that a legal instrument once incorporated takes effect on the given date. The Labour Amendment Act had taken effect on the 14th July 2023. The mischief behind the amendment by the legislature to section 101(5) was also very clear. It was to address the issues/ gaps in the law that had been raised by the Supreme Court in decisions such as the Tafadzwa Sakarombe vs Montana Meats SC 44/20; Nicholas Mukarati vs Pioneer Coaches SC 34/20. The intention was to reverse the effect of the two decisions by clarifying the law in respect of Labour Officers powers.

EVALUATION

In regards the citation in this case it was my considered view that the citation was not only irregular but also fatal. This was in view of the citation of a non-existent entity. The fact that the Respondent had used Chemplex Corporation and Dorowa Minerals interchangeably did not, in the court’s view, entitle the Appellant to cite the entities in the manner he did i.e. Dorowa Minerals (Private) Limited as a trading name for Chemplex Corporation Limited. The two were after all clearly separate and distinct legal entities. As one who was also legally represented it must have been apparent the legal implication and effect of reference to a trading name where clearly this was not the case. In the court’s considered view that was a fatal defect. The Respondent had also aptly referred the court to Fadzayi John vs Delta Beverages SC 40/17. It was also apparent to the court that, even if the court were to be generous by condoning the irregularity and allow an application for amendment, in the spirit of Mapondera and 55 others vs Freda Rebecca Mine SC 81/22 (in which judgement the Supreme Court had emphasized the need for the Labour court to avoid being swayed by legal jargon/ technicalities and to instead focus more on ensuring that simple justice is done between the parties) there was in this case no application made for condonation and amendment of the defective papers as filed. The court could, after all, only grant that which was prayed before it. It was on this basis the first point in limine was upheld.

The second point in limine was also upheld. It was not in dispute that the Appellant had been disciplined in accordance with an employment code of conduct that provided for a direct appeal to the Labour Court. It was important to note, however, that, at the time of noting of the appeal in this case i.e. 30th October 2023, the clear position of law as provided in the proviso to section 101(5) of the Labour Act was that an appeal against internal proceedings lay to a Labour Officer who ‘may’ dispose of it in terms of section 93 of the Act. The proviso to section 101(5) had been inserted by section 31(b) of the Labour Amendment Act, 2023. The Labour Amendment act itself had come into operation on the 14th of July, 2023. As submitted by the Respondent and conceded to by the Appellant, the position of the law is clear that there is a general presumption that new legislation is not applied restrospectively. This clearly meant that the proviso to section 101(5) came into operation on the date the Amendment act became operational. The appeal noted by the Appellant on the 30th of October 2023 well after the 14th

of July, 2023 the date on which the Labour Amendment Act had come into effect was therefore clearly improperly before the court.

The Appellant had also raised the argument that the use of the word ‘may’ in the proviso referred to a discretion which a party had as to whether or not to file an appeal before the Labour Officer. The extension to that argument was that since it is discretionary a litigant can therefore refer his appeal to the Labour Court. The Respondent did not agree. For completeness the court refers to the amended section 101(5) which now reads 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.” (my own underlining)

It was clear to the court that the use of ‘may’ referred to a discretion on the party as to whether or not to appeal against a determination made in internal proceedings to a Labour Officer. The discretion, as correctly noted by the Respondent counsel, did not extend to the issue of ‘where one ought to appeal’. It is manifestly clear that a litigant aggrieved by the terminated internal proceedingsd has to appeal to the Labour Officer. The Respondent submitted that this is what has come to be known as contextual reasoning in the usage of the word ‘may’. Reference was made to the authority in Information Media Investments (Pvt) Ltd v Minister of Information, Communication & Technology, Postal & Courier Services HH 207-16.

There was also an argument taken that Appellant was relying on section 92D of the Labour Act and not on section 101(5). That argument clearly could not stand as it is clear that section 92D in the title addresses appeals that are not provided for in the Labour Act. For the avoidance of doubt that section reads as follows;

“92D APPEALS TO THE LABOUR COURT NOT PROVIDED FOR ELSEWHERE IN THIS ACT

(my own underlining)

A person who is aggrieved by a determination made under an employment code may within such a time

and manner as may be prescribed, appeal to the Labour Court”

The argument also could not succeed as it was apparent from appellant papers the appeal had not been filed under the provisions of section 92D. This was clear as the Notice of Appeal made no reference to section 92D. The argument was only being raised by the Appellant as an afterthought and in a bid to outwit the second point in limine taken by the Respondent. It was also clear that the appeal, being an appeal based on completed proceedings under an employment code fell within the ambit of section 101(5). It was therefore an appeal provided for under the Act.

In regards the alleged conflict between the section 92D and section 101(5) the court also agreed with the Respondent position that there was no conflict at all between the two provisions as one was dealing with appeals not provided in the Act and the other was dealing with appeals in completed proceedings under employment codes of conduct which appeals were therefore in terms of the Labour Act. As also contended by the Respondent the provisions of section 92D are couched in general and all-embracing terms whereas the proviso to section 101 (5) is specific in its application to appeals against internal proceedings at the conclusion of such proceedings. It is indeed the position at law that in such circumstances where there is a conflict between the general and specific provision in a way that renders them irreconcilable, the specific provision prevails. See Purcel (1985) 60 ALR@657. As submitted by the Respondent the maxim generalia specialibus non derogant, would also apply in the circumstances such that it would be permissible to construe the former general provisions of section 92D as not derogating from the latter specific provisions in the proviso to section 101 (5). See Route Toute BV & Ors v Min of National Security & Ors HH 128-09.

It was also correct as contended by the Respondent that the amendment to section 101(5) through the insertion of the proviso by section 31(b) of the Labour Amendment Act, 2023 was designed to address the gaps in the law as identified in the Supreme Court judgements in Tafadzwa M Sakarombe vs Montana Meats (pvt) ltd SC 44/20, Nicholas Mukarati vs Pioneer Coaches (Pvt) ltd SC 34/22. Before the two judgements it needs to be also noted that

in Mabeza vs Sandvik Mining (2) Construction (pvt) ltd SC 91/19 Gowora JA (as she then was) remarked as follows at page 12 of the judgement;

“In my view, the principle emerging from all authorities referred to above can be summarized by the statement to the effect that a labour Officer does not have any jurisdiction under section 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct. It is clear that in this case the Labour Officer presided over a matter over which he did not have any jurisdiction. As stated in Watyoka’s case (supra), once there is a determination on the merits of a dispute a labour officer has no jurisdiction under section 93 of the Act.”

It is also apparent the same judge, Gowora JA in Tafadzwa Sakarombe matter again dealt with the legal issue as to whether a labour Officer had jurisdiction to hear an appeal based on concluded proceedings under the National Code of Conduct in view of the provisions then in section 93 and section 101 of the Act. In that matter she reached a conclusion that the Labour Officer had no power to deal with an appeal due to the absence of an enabling provision in section 101 of the Act. On paragraph 19 of her judgement she stated as follows;

“Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”

In her concluding remarks Gowora JA noted at paragraph 52 that

“In addition it is necessary, in order that the apparent confusion that exists between the Act and section 8(6) of the Model Code as highlighted in this judgement be rectified, that the relevant Minister responsible for the administration of the Act be apprised of the need to call upon the Legislature to align S.I. 15 of 2006 to its parent statute, the Labour act.”

It is also pertinent to note that in Nicholas Mukarati vs Pioneer Coaches (pvt) ltd Mathonsi JA again grappled with the question of the Labour Officer’s jurisdiction which he opined ‘arose out of the problematic wording of the relevant provisions of the Act.’ He also quoted with approval the sentiments of Gowora JA in Mabeza vs Sandvik Mining (pvt)ltd referred to supra. It was clear on the basis of these Supreme court authorities as referred that there was an urgent need for amendment of the act in order to address the gaps in the law.

Through the Amendment Act 2023 the Legislature did respond to the clarion call. They amended not just section 101(5) to rectify the problem but also section 93 to give the Labour Officer the extended power to also determine the matters that are brought before them on the basis of completed proceedings under employment codes of conduct. Under the amended section 101(5) referred to supra an appeal must be lodged with the Labour Officer who must initially attempt conciliation and if conciliation fails he must utilize his powers as granted under the amended section 93. It is only after he has referred a matter to compulsory arbitration under the amended section 93 and a party is still aggrieved that the party will then be allowed to note an appeal to this court on the basis of section 98(10) of the Labour Act.

These are the reasons why the court upheld both points in limine as taken by the Respondent and struck off the appeal as placed before the court with costs.