6
HH 143 - 24
HC 7071/20
DAVIES MAZAMBARA
and
SAMUEL ALUFANETI
and
LOVEMORE KAPUNGU
and
NICHOLAS GADZIKWA
and
MUGARAPAZANI NYAMIDEMBO
and
KENNETH KAVUNIKA
and
DONNA MUGADI
and
PETROS NJOBVU
versus
KADOMA TEXTILES (PRIVATE LIMITED)
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 3 April 2024
Opposed Application
R Gama, for the applicants
B Magogo, for the respondent
CHITAPI J: The applicants appear as named in the heading to the application. The respondent is Kadoma Textiles (Private) a duly incorporated company in terms of the laws of Zimbabwe. The respondent is the erstwhile employer of the eight (8) applicants under employment contracts. The contracts of employment of the applicants with the respondent were between 2015 and 2018 terminated on notice. A dispute arising from the termination of the employment contracts aforesaid resulted in a reference of the dispute to labour structures for resolution. Specifically and in so far as this application is concerned, a designated agent L Masvingwe was appointed and required to determine an alleged non payment of an arbitral award made in favour of the applicants in which the respondent was ordered to pay terminal benefits to the applicants. The designated agent in a draft ruling ordered as follows:
“WHEREFORE, after carefully analyzing the facts and the law, l make the following ruling:
That;
The first respondent is ordered to pay the outstanding balances to D Mazambara and 7 others a gross total of $194 220.20 according to the calculation attached schedule 6 into their bank accounts.
The first respondent is ordered to pay the above sum to the cited employees within 30 days of receipt of this order.
The first respondent to pay D Mugadi and P Njobvu at new monthly rate of $1049.40 and $743.33 respectively from the 1st of May 2019 going onwards.
First respondent is ordered to bear the costs of this application”
The ruling was rendered on 10 May 2019.
Subsequent to the rendering of the ruling, the same was confirmed by the Labour Court by judgment reference LC/H/215/2020 dated 9 October 2020. The Labour Court ordered as follows:
“IT IS ORDERED THAT
Kadoma Textiles pay D Mazambara and 7 others their duties at the prescribed rate of interest. Kadoma Textiles pays D Mazambara and others in United States Dollars. Kadoma Textiles pays applicant $733 cost. The action for costs by D Mazambara and 7 others fails.”
Subsequent to the confirmation aforesaid, the applicants on 30 November 2020 filed this application which they headed “Court Application for Registration of a Labour Court Judgment in Terms of section 92 B(3) of the Labour Act [Chapter 28:01].” The respondent opposed the application on a number of grounds which at this point are not necessary to interrogate and determine. The grounds were inter-alia that the confirmatory judgment of the Labour Court did not sound in money. Secondly it was averred that the judgment could not be registered as it did not identify the individual applicants. Thirdly it was averred that the judgment ordered payment in United States Dollars which was not legal tender in Zimbabwe and lastly that the judgment did not take into account payments already made. During the course of hearing, the court dealt with the issue of whether the Labour Court judgment was invalid for an alleged failure by the Labour Court to properly identify the applicants. It was alleged that the judgment referred to D Muzambara and 7 others without listing the other seven applicants. The objection was dismissed for want of merit and was somewhat a mischievous one because the confirmed judgment had attached to it an annexure showing the names of each of the applicants and the individual amounts that each applicant was supposed to be paid.
The respondent then sought to introduce a new point of law not arising from its papers. The point of law raised was that the applicants did not have locus standi to apply for the registration of the confirmed ruling of the designated agent which then became a judgment of the Labour Court, so to speak. The respondent averred that it was only the designated agent who could apply for registration of the ruling. The applicants firstly objected to the introduction of the point of law. The hearing was stalled as parties following the courts direction filed supplementary heads of argument to address the issue. The court subsequently granted the application and parties were further directed to prepare and file their submissions on the issue of the locus standi of the applicants to petition the court on the order which they sought.
Factual scenario regarding the filing of the application was as follows: The applicants filed this application citing that it was a court application for registration of a Labour Court judgment in terms of section 92 B(3) of the Labour Act [Chapter 28:01]. Section 92 B(3) of the Labour Act reads as follows:
“Any party to whom a decision, order or determination relates may submit for registration the copy of it furnished to him in terms of subsection (2) to the court of any magistrate which would have had jurisdiction to make the order had the matter been determined by it, or if the decision, order or determination exceeds the jurisdiction of any magistrates court, the High Court.”
The respondents objected to the locus standi of the applicants on the basis that section 93 (5)(b) of the Labour Act provided that the labour officer, in this case, the designated agent who rendered the determination on quantification and applied for and accordingly caused the Labour Court to confirm it, was the party with the requisite locus standi to seek or apply for registration of the confirmed order or determination and not the parties to the determined dispute. Section 93 (5)(b) of the Labour Act, provides as follows:
“(5b) If, on the return day of the application, the respondent makes no appearance or after a hearing, the Labour Court grants the application for the order with or without amendments the labour officer concerned shall if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of a civil judgment of the appropriate court.”
Just to contextualize to how section 93(5b) comes into play yet it refers to a labour officer when the determination sought to be registered by the applications was made by a designated agent, reference is made to section 63(3a) of the Labour Act. It provides as follows:
“(3a) A designated agent of an employment who meets such qualifications as may be prescribed shall in his or her certification of appointment be authorized by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered ,and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”
It is on the basis of the provisions of section 63(3a) of the Labour Act that the determination of a designated agent is deemed as the same as that made by a labour officer and so are the designated agent’s powers in relation to disputes resolution involving an undertaking in which there exists a registered employment council.
The applicants per contra argued that the provisions of section 93(5b) of the Labour Court did not oust the provisions of section 92 B of the same Act and submitted that the two provisions constituted enforcement mechanisms for determination or orders made in favour of a party were parallel processes. In other words the applicants, could either apply for registration themselves in terms of the section which they invoked or the registration could be done by hand of the designated agent in terms of section 93(5b).
It is necessary therefore to interrogate the provisions of the two sections 92B and 93(5b). Section 92 B to the extent material to the determination of the point raised for determination provides as follows:
“92 B Effective date and enforcement of decisions of Labour Court
The Labour Court may fix the date from which any decision, order or determination made by it shall operate, which date may be an earlier or later date than the date of the decision, order or determination.
The President of the Labour Court who made the decision, order or determination shall submit sufficient copies to the registrar of the Labour Court to enable the registrar to furnish a copy top each of the parties affected by it.
……………….. (already quoted supra)
Where a decision has been registered in terms of subsection (3) it shall have the effect for purposes of enforcement of a civil judgment of the appropriate court.
…………………….”
Section 92 B thus relates to decisions of the Labour Court generally save as may be qualified or as may be provided otherwise. It is correct that parties to the decision, order or determination of the Labour Court may submit the same to the magistrates court or High Court depending on jurisdiction limits for registration for purposes of enforcement.
On the other hand section 93(5b) provides for the power of the designated agent to submit the order to the appropriate court for registration. Again it needs to be noted that the starting point is not subsection (5b) of section 93. There are prior processes which precede the submission for registration by the designated in terms thereof. The designated agent is not simply there to submit the order for registration. The designated agent has to perform tasks as follows: Firstly he or she must have held a hearing or enquiry into the dispute, secondly he/she must have made an order, thirdly he or she must seek the confirmation of his or her order by the court and lastly if the order is confirmed by the Labour Court, he or she must see to compliance with the order and upon failure to comply, he or she must submit the order to the appropriate court for registration of his or her confirmed order as an order of the court.
Thus, simply stated, where a dispute of right has been dealt with by a designated agent, the process of enforcement is the province of the designated agent from start to finish. As observed by the Supreme Court in the case Drum City (Private) Limited v Garudzo SC 57/18 by the Supreme Court per Gwaunza DCJ SC 57/18 at p9 where it is stated: -
“The legislature took the view that this procedure of referring a dispute to an arbitration resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of S 93 (5a) and (5b) of the Labour Act was meant to address this mischief.”
The designated agent is tasked by peremptory command to submit the confirmed order for registration as a civil judgment of the appropriate court. There is no scope for the applicants as parties to submit a confirmed order and seek its registration where the process of the dispute settlement was subject to and determined by a designated agent.
There is no provision in the Labour act for arrogation of the peremptory duties of the designated agent in relation to the steps which the agent must take in resolving and ensuring the satisfaction of the agent’s confirmed order. It appears therefore that where a designated agent has made an order which is confirmed and does not complete the process of enforcement, the affected party does not invoke the provisions of S 92 B to enforce the confirmed order. If anything, the parties can actually sue the designated agent and seek an order that the designated agent complies with the Act in relation to ensuring the registration and enforcement of the order. The relationship or distinction between section 92 B and 93(5a) is that while the decision of the Labour Court has come about as a result of an application by the designated for confirmation order of the agent’s order, the submission of the confirmed order for registration of the order is done by the designated agent. Section 92 B must be deemed to refer to other decisions of the Labour Court other than those following confirmation at the instance of the designated agent.
The record shows that the applicants on 21 July 2023 filed supplementary heads of argument wherein they indicated that they conceded for reasons of expediency that their application be struck off the roll for want of the court’s jurisdiction to register the applicants application brought in terms of section 92 B(3) of the Labour Act. There was however another development. By letter addressed to the Registrar dated 1 September 2023 the applicants legal practitioners advised that they were withdrawing the concession to have the matter struck off the roll because unbeknown to them at the time of filing the concession, the Labour Amendment Act 11/2023 passed on 14 July 2023 had repealed section 93(5b) of the Labour Act. Section 36 of the Amendment Act provided as follows:
“36 New Section inserted in [Chapter 28:01]
The principal Act is amended by the insertion after section 127 of the following and the subsequent section shall accordingly be numbered.”
“128 Transitional provisions”
“7(1) When a labour officer made a draft ruling in terms of section 93(5)(c) and for what (see) reason the draft ruling was not registered with the Labour Court in terms of section 93(5) and (5b) of the replaced provisions such draft ruling shall automatically be deemed to be a judgment or ruling of the labour officer which for execution purposes shall be registered in the appropriate court:
Provided (see) an employer shall have the right of appeal of (sic) the Labour Act within 30 days after notice of registration.
(2) The quantum shall be calculated based on the currency at the prevailing official rate.”
The effect of the transitional provision is that in relation to draft rulings which required to be confirmed but were still to be confirmed by the Labour Court, then the drafting ruling shall be deemed to a judgment or ruling or the labour officer which is registered with the appropriate court for purposes of enforcement. The applicants argued that the effect of the repealed provisions meant that the designated agent could no longer seek registration and that in consequence the applicants were entitled to the order of registration as applied for in this application.
The respondents counsel submitted that since at the time that the application was filed, section 93(5b) was extant before its repeal as aforesaid, the validity of the application had to be determined as at the date that the application was filed. Counsel made reference to section 17 of the Interpretation Act [Chapter 1:01] which deals with effect of repeals. It is noted that the provisions of section 17 (….) provide as follows:
“Where an enactment which has been amended is repealed, such repeal shall repeal all enactments by which such first-mentioned enactment has been amended.
17 Effect of repeal of enactment
Where an enactment repeals another enactment, the repeal shall not –
Revive anything not in force or existing at the time which the repeal takes effect; or
Affect the previous operation of any enactment repealed or anything duly done or suffered under the enactment so repealed; or
Effect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed; or
Affect any offence committed against the enactment so repealed, or any penalty, forfeiture or punishment incurred in respect thereof; or
Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy shall be exercisable, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the enactment had not been so repealed.
Nothing in subsection (1) shall be taken to authorize the continuance in force, after the repeal of an enactment, of any statutory instrument made under that enactment.
Where an enactment repeals and reenacts, with or without modification, any provision of any other enactment, all proceedings commenced under any provision so repealed shall be continued under and in conformity with the provision so repealed.
Where, prior to the 1st January,1976, an Act of the Legislature of the former Federation repealed and re-enacted, with or without modification, any provision of an Act of the Legislature of the former Federation, any proclamation, regulations, rule, by-law, order, notice, scheme or other instrument made and in force under any provision so repealed shall continue in force in so far as it is not inconsistent with the substituted provision or until it is repealed or replaced.
Where at any time an enactment expires, lapses or otherwise ceases to have effect, this section shall apply as if that enactment had been repealed.”
Counsel for the respondent argued that the provisions of section 17 of the Interpretation Act, particularly paragraph (e) of subparagraph 1 of section 17 provided that legal proceedings pending in terms of the repealed proceedings shall be continued or enforced under the repealed enactment as if it was not repealed or is still in force.
Counsel for the applicants submitted that it was not necessary to invoke the Interpretation Act because the application by the applicants was not based upon the repealed provision section 93(5b) but upon their right to seek the registration in terms of the provisions of section 92 B (3) of the Labour Act.
It seems to me that the real issue which now arises is whether or not the current application should be dealt with oblivious of its propriety or otherwise regard being had to the fact that when it was filed section 93(5b) was in existence. In my analysis, the transitional provision set out in section 36 of Labour Amendment Act goes a long way in appreciating and taking into account that the disputes disposed of by designated agents required that the designated agents should see through the process of enforcement. By virtue of the amendment, the draft rulings made by the designated agents which have not yet been confirmed by the Labour Court are deemed confirmed and shall be registered in the appropriate court. The legislature’s intention in enacting section 93(5b) of the Labour Court Act was as observed by Gwaunza DCJ to expedite the time that disputes are brought to a conclusion by ensuring enforcement. The involvement of the designated agent to do all the steps required of him to ensure that the order he or she has given is satisfied also ensured that the winning party is not put to expense of taking steps to enforce an order made in that party’s favour.
A further analysis of section 93(5b) shows that the designated officer “concerned” is the one mandated to seek a confirmation of his ruling or order and to submit the confirmed order by the Labour Court to the appropriate court for registration. The designated agent whose decision has been given pursuant to the exercise of powers given in section 63(3a) of the Labour Act was required to not only apply to the Labour Court for confirmation of his or her order but to submit the order for registration to the appropriate court. The parties cannot usurp that prerogative of the designated as was done by the applicants. The procedure set out in section 93(5b) was specifically intended to deal with matters dealt with by designated agents. A party to the all-embracing process of dispute resolution and enforcement by the designated agent is bound to that process and cannot seek to individually register an order made in that party’s favour for enforcement.
The applicants cannot substitute the current application for anything other than what it was on filing it. It was an incompetent application at the time that it was instituted in that the applicants ought to have applied for an order to order the designated agent Mr Masvingwe to apply to register the order for enforcement had they not been satisfied that he had not served their interests in terms of submitting the confirmed award for registration. The application being a nullity, it ends there. No life can be breathed into it. A nullity begets nothing but a nullity as observed in the judgment of Chiweshe JA in the case Yuben Lin + Anor vs Barbra Cook and 4 Ors SC 31/23 where the learned judge stated:
“We agree with the first respondent when she submits that a nullity begets a nullity. Her counsel correctly referred us to the case of Tamanukwa and Anor vs Zimdef and Anor SC 73/17 wherein at p6 the court had this to say:
The authorities are clear that it is now a matter of settled elementary law that when a proceeding is a nullity every proceeding based on it is also a nullity as observed by Korsah J in Nguni v Mbanye and Anor 1987(2) ZLR 111 at p115 where the learned judge relying on the dicta in Mefoy v United Africa Company Limited ALL ER 1169 remarked that:
If an act is in law a nullity it is not only bad but measurably bad. There is no need for the order of the court to set it aside. It is automatically null and void without more ado though it is sometimes more convenient to do so. And every proceeding founded on it is also bad and measurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
Once it is accepted that there is an elaborate and stand-alone procedure for registration and enforcement of orders made by designated agents, then unless the law provides for exceptions which section 93(5b) does not so provide, the application of the applicants having been brought in terms of another section 92B which does not relate to enforcement of orders made by designated agents renders the application a nullity.
It follows that the applicants’ application must suffer a still birth as it is not provided for where an order or determination made by designated agents has to be enforced. Such application faces the fate of striking it off the roll as the applicants are non-suited to mount it.
In relation to costs, the applicants mounted an untenable application and persisted in moving for its correctness to the end. The applicants despite having initially seen the light and offered to withdraw their application or have it struck off the roll then withdrew the concession and again took a position which was untenable and destined to predictable failure. In such circumstances the respondent is entitled to its costs. Costs must follow the event as per the general rule as there are no special circumstances to justify any other order than to grant the respondent its costs. As the applicants each made cause with the others in seeking to advance an untenable position on the locus standi issue the liability for costs must be joint and several.
DISPOSITION:
IT IS HEREBY ORDERED THAT
The applicants lack locus standi to seek the relief which they seek.
The application be and is hereby struck off the roll.
The applicants jointly and severally the one paying the other to be absolved shall bear the respondent’s costs.
Chitapi J:……………………….
Gama and Partners, applicants’ legal practitioners
Samukange Hungwe Attorneys, respondent’s legal practitioners