BULAWAYO BOTTLERS (PVT) LTD v MINISTER OF LABOUR, MANPOWER PLANNING AND SOCIAL WELFARE & ORS 1988 (2) ZLR 129 (HC)

Flynote

Administrative law — waiver of rights — whether attendance at quasi — judicial proceedings which are void precludes subsequent challenge to validity of those proceedings.

Practice and procedure — declaratory order — whether may be sought when remedy available by other procedures.

Statutes — Labour Relations Act 1985 and Labour Relations (General) Regulations 1985 — proviso to s 17(4) of Regulations — appeal against determination by a labour relations officer — whether failure by officer hearing appeal to reduce a verbal determination to writing invalidates his decision — re-hearing of appeal — not valid unless previous proceedings set aside.

Headnote

In October 1986 the petitioner suspended without pay the third respondent, who was then in its employ, and applied through the Industrial Relations Office in Bulawayo for his dismissal. In August 1987 a labour relations officer, acting under the provisions of the Labour Relations Act 1985, ordered the third respondent's reinstatement, but the petitioner appealed to the Regional Hearing Officer against that order. The Regional Hearing Officer, a Mr Dube, heard the matter on 12 October 1987 and verbally informed the parties that he approved the dismissal of the third respondent. He did not, however, reduce his verbal advice to writing, as required by the proviso to s 17(4) of the Labour Relations (General) Regulations 1985, because, before he could do so, he was suspended from his duties and prohibited from attending his place of work.

While Mr Dube was under suspension, the petitioner was told to attend a further hearing of the same appeal before another Regional Hearing Officer. This hearing took place in November 1987 before a Mr Chinduta, who issued a determination reversing Mr Dube's decision. The petitioner sought an order from the Court declaring Mr Chinduta's decision to be null and void.

Held, that the proceedings before Mr Dube were complete because a determination was made and communicated to both parties. The requirements to reduce the determination to writing was a mere formality, the relevant provisions of the Regulations being directory rather than peremptory. *

Held, further, that if the hearing by Mr Dube was incomplete because of the failure to reduce the determination to writing, the matter remained a part-heard one. It would be irregular and ultra vires for Mr Chinduta to rehear the matter unless Mr Dube was unable to do so because of death or resignation; a suspended employee is still employed. In the event that Mr Dube was unable to complete the case, the proceedings would have to be set aside before Mr Chinduta could deal with it.

Held, further, that there was nothing to prevent the petitioner from applying for a declaratory order, even if it was open to him to commence review proceedings, provided that the Court was satisfied that the petitioner was a person interested in an existing, future or contingent right or obligation and that the case was a proper one for the exercise of its discretion in granting the order. The petitioner met these requirements. The fact that an applicant could have commenced review or other proceedings is a consideration which the court takes into account when considering whether declaratory proceedings were proper. In this case, it was not really open to the petitioner to commence review proceedings because that would have amounted to an acceptance by it that the re-hearing by Mr Chinduta was regular or lawful. The proper application was for a declaratory order.

Held, further, that the petitioner could not, by attending the invalid re-hearing of the appeal, be held to have waived its right to challenge the validity of that re-hearing. There cannot be a waiver of a right to object to a nullity.