Introduction
Prior to the Labour Amendment Act 11/23, there was confusion as to which forum had the requisite jurisdiction to adjudicate on the appeals from the internal disciplinary proceedings. This issue had been a grey area for a while, before the latest labour amendment. There had been a host of decided cases ousting Labour Officers, their requisite power to entertain appeals from the internal disciplinary tribunal. Highlight as few are Sakarombe N.O and anor v Montana Carswell Meats (Private) Limited SC44/20, Muchena v Revco Private Limited LC/H/547/18 among others. The legal quagmire has been generated due to the lack of clarity within the Labour Act [Chapter 28:01]. In making a halt to this legal crisis, the legislature enacted the Labour Amendment Act 11/23 which settled the issue once and for all. This clarity of Labour Amendment 11/23 section 101 (5) has been exemplified under Superlinx Logistics (Pvt) Ltd v Sikhumbuzo Mabhena LCMT33/24.
Meaning of Sakarombe N.O and anor v Montana Carswell Meats (Private) Limited SC44/20
The import under the Sakarombe case was that, the Labour Officer lacked the jurisdiction to adjudicate appeals as referred to under the S.I 15/2006[1] particularly section 8. The logic behind the reasoning in Sakarombe was a legal appreciation of Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S), in verbatim the authority clearly laid three condition in which a Labour Officer presided over a matter referred to him. The court had this to say,
“There are, therefore, three important conditions under which such matter can be referred to a labour officer: (a) the matter must not be one that is liable to be subject of proceedings under a code of conduct; (b) the matter has not been determined within thirty days of notification; and (c) where the parties to the dispute request and agreed on the issues in dispute…Subsection (6) of the s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It is not a referral intended to challenge a determination that has already been made.”
The reasoning in Sakarombe was that the Labour officer had jurisdiction to preside on matters referred or that came to his attention, where there had not been any proceedings that had been completed. Labour Officer’s jurisdiction, in accordance with this authority, was thus limited to that of tribunal or court of first instance where a determination has not been given.
Labour Amendment Act No. 11/23 and its implications
The advent of Labour Amendment 11/23, cleared the legal uncertainty on the jurisdiction of the Labour Officer on appeal from the internal tribunal proceedings under section S.I 15/2006. Prior to the amendment, there was lack of clarity on the proper tribunal to entertain appeals under the model code. Muchena v Revco Private Limited LC/H/547/18, it was envisaged in black and white,
“A binding and final determination lies within the hands of this Court. Reference to a Labour Officer for conciliation does not provide an effective remedy in my view”.
Sakarombe reasoning had been expounded on the above analysis. It is trite to note that these authorities had relegated the powers of the Labour Officer to handle appeals under section 8 of S.I 15/2006 to the dust bin but however they were revived under Labour Amendment 11/23.
Meaning of Superlinx Logistics (Pvt) Ltd v Sikhumbuzo Mabhena LCMT33/24
M. Moya-Matshanga J in the case of Superlinx Logistics (Pvt) Ltd v Sikhumbuzo Mabhena LCMT33/24, had this to say on whether the Labour Court or Labour Officer has power to adjudicate an appeal against a conclusion in the proceedings under an employment code,
“The reason for the lack of jurisdiction is that the Labour Amendment ACT No 11 of 2023 now specifically provides for appeals against determination made by designated agents in terms of code of conduct. Prior the amendment, such appeals would lie in the Labour Court in terms of section 92 D of the Labour Act Chapter 28:01…The Labour Amendment Act has not repealed s92D. What is has done is to provide specifically for the appeals made under an employment code…
I make this finding cognisant of the meaning and purpose of a proviso whose purpose basically is among other things to qualify somethings enacted in an enactment which but for the provision would be within the province of the enactment…The proviso qualifies the provisions of s92D which is expressed in terms that are too general and it then steps in to provide a specific remedy as it were…”.
Therefore, it is quite instructive from the reasoning of the court, that appeals from the code of conduct now lies with the Labour Officer instead of the Labour Court, on the basis that section 101 (5) of the Labour Act as amended.
It is a cardinal principle under the legal jurisprudence, maxim ‘generalia specialibus non derogant’, that if two laws govern the same factual situation, a law that is governing a specific subject matter overrides a law governing only general matter. In verbatim section 92D is too general;
92D Appeals to the Labour Court not provided for elsewhere in this Act
“A person who is aggrieved by a determination made under an employment code, may within such time and such manner as may be prescribed, appeal to the Labour Court.”
In the premises an appeal directed to the Labour Court which emanates from an employment code of conduct may hit a brick wall and be dismissed on the lack of jurisdiction, on the reasoning that the Labour Officer now assumes the appellate functions as bestowed upon him or her by the Labour Amendment Act No 11/23, and the Labour Court now lack the requisite power to adjudicate appeals against determination from the code of conduct.
Conclusion
The Labour Amendment Act 11/23 , has given a final nail to the coffin and buried the then legal quagmire as to which tribunal had the requisite jurisdiction to preside over appeals from the model code S.I 15/2006. This position is further explained in recent case Superlinx Logistics (Pvt) Ltd v Sikhumbuzo Mabhena LCMT33/24.