ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) v KASIKAI MASHONGANYIKA SC 43/18

Introduction

The case dealt with the question of whether a party to a labour dispute can be represented by a labour consultant during arbitration proceedings. This case is important in so far as it shows that a representation in Labour Court Proceedings is more restricted as compared to Arbitration proceedings.

Not related to this current matter is it important to note that the legislature has enacted Statutory Instrument 8 of 2018 which now explicitly excludes parties from being represented by labour consultants in the Labour Court.

Facts

The facts which led to the current dispute can be summarised as follows:

• A dispute between the employer and the employee was referred for arbitration after conciliation had failed.
• At arbitration, the employee was represented by a labour consultant.
• The employer argued that the employee could not make use of a labour consultant in such proceedings.
• The arbitrator and subsequently the Labour Court upheld the argument that the labour consultant could represent a party in arbitration proceedings.
• Aggrieved by the Labour Courts decision, the employer appealed to the Supreme Court.

Reasoning

The court’s finding was clear cut leaving no room for misunderstanding.

As a starting point, the court made an important observation that the Labour Act provisions which the appellant was relying on did not affect the position in the Arbitration Act.

The appellant argued that in terms of S92 of the Labour Act only a Legal Practitioner or an official of an employer’s or an employee organisation can represent a party to a labour dispute in the Labour Court. It attempted to reconcile this section with section 98(9) which provides that an arbitrator shall have the same powers as the Labour Court. The argument was meant to show that because an arbitrator has the same powers as the Labour Court it cannot be possible for an arbitrator to entertain parties represented by labour consultants. The arbitrator was thus bound to follow provisions of labour act and ignore what the arbitration act says, the argument continued.  The supreme court did not agree.

The accepted legal position that was supported by the Supreme Court is one in which a labour consultant can represent a party in arbitration proceedings. Article 24 of the Arbitration Act is clear on who can represent a party during such arbitration and in that regard, this can be any person of a party’s choice. The words “any person of their choice” were deemed to include labour consultants as opposed to excluding them. the court thus remarked that:

“The word ‘person’ in the provision cited above does not come with any qualification except that such a person should be of the relevant party’s choice. This circumstance makes the ambit of Article 24(4) wider than that prescribed in s 92 of the Act. The person chosen by a party can, therefore, be anyone, even a legal practitioner or an official or employee of a registered trade union or employer’s organization, as envisaged in s 92 of the Act.”

Judgment

The appeal was dismissed for lack of merit.