Commentary on Labour Court rules

Mucheche (29) has written a commentary on the Labour Court rules of Zimbabwe which was published earlier this month.
Adv Mucheche is a partner in the law firm Matsikidze and Mucheche Legal Practitioners and came up with this very instructive and educative commentary.
In terms of Section 90 (3) of the Labour Act, presidents of the Labour Court made rules as published in Statutory Instrument 59 of 2006.

They govern the practice and procedure to be followed in proceedings before the Labour Court.
In the foreword to the commentary, Labour Court senior president Ms Gladys Mhuri said that the project was the first of its nature.
“Other players in the labour law field should be encouraged to do likewise,” said Ms Mhuri.

“It is hoped that more debate and commentaries would be done as these rules regularly as a way of keeping up development and changes in the legal field.”
She said that the commentary was well received and greatly appreciated by the Labour Court presidents.
Ms Mhuri highlighted that it would be found very useful by labour law practitioners in particular.

“It elucidates through reference to case law, the Rules and certain procedures which to some may not have been so clear,” said Ms Mhuri.
In his acknowledgement, Adv Mucheche expressed gratitude to long time partner Mr Rodgers Matsikidze for giving him invaluable support.
He also extended his profound gratitude to Messrs. Reason Mutero, Munyaradzi Gwisai, Abraham Maguchu and Professor Lovemore Madhuku for their help, as well as the staff of M and M Labour for Business Consultancy.

As alluded to by Labour Court senior president Ms Mhuri, Adv Mucheche’s commentary will be very important for — not only her staff — but also for labour law students.

Adv Mucheche highlights that the Labour Court rules compulsorily applies to all proceedings or matters in the Labour Court because of the use of the word “shall,” which is mandatory or peremptory.
In the same vein, the rules apply to proceedings pending in the Labour Court on the date of commencement of the rules to the extent that it is feasible.
This means that parties to all proceedings in the Labour Court are legally obliged to comply with the rules because their application is universal.

The bottom line is that the Labour Court rules are meant to regulate proceedings in the Labour Court, hence their application to all proceedings emanating from that court.

Legal practitioners — in their capacity as officers of the court — are expected to faithfully adhere to the rules more than self-actors.
If a party, which is legally represented, demonstrates disdain for the rules, the court is less likely inclined to grant indulgence to that party as compared to a party, which is not legally represented.

This does not mean that the latter is excused from complying with the rules, but the obligation on legal practitioners is more onerous than that on self-actors for the obvious reasons that officers of the court must lead by example.
Adv Mucheche highlights that the Labour Court is a creature of statute. It is a specialised court made in terms of Section 89 of the Labour Act (Chapter 28:01).

The court derives its jurisdiction from the Four Corners of the Labour Act.
In terms of Section 89 (1) (a) of the Labour Act, the Labour Court is clothed with jurisdiction to hear applications and appeals in terms of the Act or any other enactment.

This means that the Labour Court does not have inherent jurisdiction like the High Court.
In order for the Labour Court to exercise jurisdiction over any matter, it must be an application or appeal in terms of the Act or any other enactment.
For the avoidance of doubt, the Labour Act does not confer the Labour Court with jurisdiction to grant interdicts. (see National Railways of Zimbabwe Vs Zimbabwe Railway Artisans’ Union and Others 2005 (1) ZLR 341 (S); Rumbidzayi Musiyiwa Vs Metropolitan Bank of Zimbabwe Limited LC/H/56/2012).

In the same vein, the Labour Court does not have the jurisdiction or power to grant delictual damages like pain and suffering, stress, loss of amenities, and injury among others. (see Gwaze Vs National Railways of Zimbabwe 2002 (1) ZLR 679 (S); Gauntlet Security Vs Leonard 1997 (1) ZLR 583 (S).
In order for the Labour Court to have jurisdiction to hear an appeal or application, it must be show that such is provided for in terms of the Labour Act or any other enactment. (see Tendai Tamanikwa and Others Vs Zimbabwe Manpower Development Fund LC/H/31/11.

Adv Mucheche writes that with regards to a declaratory order, the Labour Court has held that it is clothed with jurisdiction to grant that relief.
However it must be pinpointed out that in terms of Section 89 (6) of the Labour Act, the Labour Court is adorned with first instance jurisdiction to hear all labour matters.

In Benson Samudzimu Vs Dairiboard Holdings Ltd HH 204/10, the Judge President of the High Court, Honourable Chiweshe JP put the final nail on the coffin of parallel jurisdiction that used to exist between the Labour and High Courts in labour matters.
Justice Chiweshe reiterated the exclusive jurisdiction of the Labour Court in all labour matters.
“The Labour Relations Tribunal was in 2003 transformed into a court whose power of review are the same as those of the High Court subject to the provisions of

Section 89 (1) of the Labour Act. The intention of the legislation was to clearly establish a one-stop shop for all labour matters and provide finality in litigation involving labour issues. Otherwise, why create a creature that is parallel to the High Court?” said Justice Chiweshe.
Adv Mucheche goes on to explore other topic that include service of documents, sitting and vacations of the Labour Court, informality of proceedings, applications, appeals and reviews among many others.

Adv Mucheche now has an eye for writing following publication of another booklet in May this year.
It is titled “A Guide to Collective Bargaining Law and Wage Negotiations in Zimbabwe.”
The guide is intended for use by trade unions, employers, works councils, NECs, designated agents, workers committees, labour officers and employers associations.

Some of the topics covered include bargaining law, collective bargaining agreement, bargaining process, duty to bargain and the theoretical foundation and aims of collective bargaining.