Medson Mpofu v National Social Security Authority

The applicant brought a claim for damages for discrimination before the Labour Court in terms of section 5(4) read with section 89(2) of the Labour Act [Chapter 28:01]. The Labour Court declined jurisdiction, finding that it could not be engaged as a court of first instance in such a claim. The court held that the claim should first be brought to a Labour Officer for conciliation and either be referred to arbitration (under the old provisions of the Labour Act) or result in a draft ruling by the Labour Officer for confirmation by the Labour Court. The applicant sought leave to appeal from the Labour Court on four grounds, which was refused on the basis that the applicant had no prospects of success. The applicant then approached the Supreme Court in terms of section 92F(3) for leave to appeal.

• Whether the Labour Court can entertain an application for damages under section 5(4) of the Labour Act as a court of first instance without prior conciliation proceedings
• Whether the applicant had exhausted domestic remedies available under Part XII of the Labour Act
• Whether leave to appeal should be granted where the applicant has no reasonable prospects of success

The application for leave to appeal was dismissed with costs on the ordinary scale.

A claim for damages under section 5(4) of the Labour Act [Chapter 28:01] cannot be brought directly to the Labour Court as a court of first instance. Such claims must first be brought to a Labour Officer for conciliation in accordance with Part XII of the Labour Act. The Labour Court can only be engaged after conciliation proceedings or arbitration have been completed. The requirement to exhaust domestic remedies is mandatory, and failure to do so renders an application to the Labour Court premature and outside its jurisdiction.

The court noted that while costs should ordinarily follow the result, it was not persuaded that costs should be awarded on the adverse (higher) scale as urged by counsel for the respondent, and instead awarded costs on the ordinary scale. This reflects a discretionary consideration of the circumstances of the case and the applicant's status as a litigant in person.

This case clarifies the procedural requirements for bringing claims for damages for discrimination under the Labour Act in Zimbabwe. It reinforces the principle that domestic remedies must be exhausted before approaching the Labour Court, specifically the requirement that disputes must first go through conciliation with a Labour Officer under Part XII of the Labour Act. The judgment also demonstrates the Supreme Court's gate-keeping function in applications for leave to appeal, emphasizing that leave will only be granted where there are reasonable prospects of success.