Cause of Action and Draft Orders re: Approach iro Labour Proceedings

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found, that, the respondents had been unlawfully dismissed and ordered their reinstatement.

Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution.

The applicant's property was attached and scheduled for removal and sale. Both the arbitral award and the quantification thereof, were, at that time, the subject of appeals before the Labour Court.

The High Court found, firstly, that, it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order. Secondly, that, the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted on behalf of the applicants, that, the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court.

In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Cap 28:01] (“the Act”) and is not suspended pending appeal.

They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award.

Accordingly, the applicant ought to have proceeded, in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal which it failed to do.

It was submitted, that, the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted, that, the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision, in terms of section 98(10) of the Labour Act, would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted, that, once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted, that, the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued, and, the entire library of the University as well as all its vehicles have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing, because, I was of the view, that, the award, having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought.

It may be that a bench of three Judges of the Supreme Court may come to a different conclusion, but, the very fact of a divergence of positions on this issue of law is what causes me to conclude, that, the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view, that, this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under Case No. HC2288/12, the stay of execution of which was refused under Case No. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

The applicant was employed as Group Engineering Director by the first respondent, which represented itself as a holding company comprising several subsidies with the second respondent as its Chief Executive Officer.The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent ...

The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent in his capacity as the Chief Executive Officer. It reads as follows:

“REF: APPOINTMENT TO THE POSITION OF GROUP ENGINEERING DIRECTOR EFFECTIVE 1 JUNE 2009

Following the initial discussion with me, and the subsequent interview conducted at our Head Office, I wish to confirm your appointment to the above position whose duties include the following:

(i) Management of all Group Engineering Projects and Installations.

(ii) Production process improvements to include automation and plant simplifications.

(iii) Advise and liaison with divisions on safety matters.

(iv) Advise and liaison with divisions on procurement issues.

(v) Developing preventive maintenance programmes for all divisions.

(vi) Building inspections for structured works.

(vii) Introduction to best practices in all manufacturing processes.

As a Director, you will be expected to undertake full executive functions for the Group from time to time at fora and engagements inside and outside the Group.

Your initial package will be as follows:

Basic salary: US$3,000 per month
Education Allowance: US$ 500 per month
Cellphone Allowance: US$ 250 per month

Total ___________

Salaries are reviewed upward periodically in line with Group performance. After your 3 months probation you will be offered participation in the share options; have no doubt that you will be able to make immense contributions given your attitude to work and vast experience and that you will work well with our executive dynamic team that has created a very robust and fast growing organisation.

Yours faithfully

D. Govere
CHIEF EXECUTIVE OFFICER”

The appointment letter, which was copied to the Chief Operations Officer and Chief Finance Officer clearly refers to a “Group” of entities and “divisions” of what was presumably a family of businesses falling under the umbrella of Harambe Holdings.

In addition, an organogram was generated and made available to the applicant showing the structural layout of the group of subsidiaries making up the first respondent holding company.

The applicant remained in employment for 11 months, and, when he did not receive his salary and allowances in accordance with the employment contract, he referred the dispute to arbitration.

An arbitral award was issued in his favour in the sum of US$61,879.

He has been unable to execute against the first respondent's property to recover the judgment debt because each time an attachment of property is made, such property is claimed by a third party.

This has prompted the applicant to make this application seeking an order to compel the respondents to disclose the addresses and places of business of the subsidiaries of the first respondent.

In the event of failure to disclose, he wants the second respondent to be held personally liable for what is owed to him.

The basis of the application is that the respondents represented to him that the first respondent was a holding company or a conglomeration comprising, inter alia, of, The Vinyl Tile Company; Freshbak; Downings; Superbake; Ecoplastics (Pvt) Ltd; Horeca; Household Converters; Intertec (Pvt) Ltd; and Tacoola Beverages (Pvt) Ltd.

By such fraudulent misrepresentation, he was persuaded to take up employment as the Group Engineering Director of these entities - only for the employer to fail to pay him.

In support of that claim, the applicant has submitted, in addition to the organogram I have alluded to, a letter-head and trading brochures of the various entities representing each entity as “a division of Harambe Holdings.” This, according to the applicant, shows that both the first respondent and these other entities have been announcing to the whole world, and, indeed, the applicant, that they are one family.

He would therefore want the veil of incorporation to be lifted to expose them for what they are....,.

The respondents..., half-heartedly sought to challenge the jurisdiction of this court to entertain the application on the basis that it is a labour matter.

It is now settled that this court has jurisdiction over all matters where the cause of action and remedy are at common law while the Labour Court retains jurisdiction on those matters provided for in the Labour Act [Chapter 28:01]:see DHL International Ltd v Madzikanda 2010 ZLR 201…,; Moyo v Gwindingwi N.O. & Anor HB168-11…,.

Happily though, counsel for the respondents abandoned that line of argument in his submissions in court.

HH23-08 : EDWIN MUSHORIWA vs ZIMBABWE BANKING CORPORATION
Ruled By: GOWORA J

According to the Labour Act [Chapter 28:01], in particular section 3 thereof, the Labour Act [Chapter 28:01] applies to all employers and employees, save where the employment is in terms of the Constitution.The applicant was not employed in terms of the Constitution.This application, therefore, falls under the provisions of section ...

The applicant was not employed in terms of the Constitution.

This application, therefore, falls under the provisions of section 89(1) of the Labour Act [Chapter 28:01], and this court does not have the jurisdiction to determine the matter....,.

In terms of section 89(1) of the Labour Act [Chapter 28:01], amongst the powers bestowed on the Labour Court by the Labour Act [Chapter 28:01] is the power to, in subsection 1(d)(i), exercise the same powers of review as would be exercisable by the High Court in respect of labour matters. This was the amendment ushered in by the Labour Amendment Act 7 of 2005.,. It is, therefore, common cause that when the application was filed, the Labour Amendment Act 7 of 2005 had already been promulgated.,. The effect of this, contends the respondent, is to oust the jurisdiction of the High Court in labour matters, even where the issue concerns a review. The respondent, in this contention, relies on section 89(6) of the Labour Act [Chapter 28:01]. According to the respondent, the section brings about a statutory ouster of jurisdiction by the High Court where applications, appeals or matters referred to in subsection (1) are concerned. The section is in the following terms:

"No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1)."

The incidence of section 89(6) of the Labour Act [Chapter 28:01] resulted in a number of judgments from this court in relation to the instances where it would retain jurisdiction in the first instance. In., BHUNU J decided that this court did not have jurisdiction to consider reviews arising out of contracts of employment as that power had been bestowed on the Labour Court by virtue of section 89(6) and which also ousted the power of the High Court to review such decisions.

HH26-10 : MEDICAL INVESMENTS LIMITED vs RUMBIDZAYI PEDZISAYI
Ruled By: MAKARAU JP

The applicant and the respondent were employer and employee respectively. The respondent was employed by the applicant as its Chief Pharmacist with effect from 1 December 2002 up to November 2008. It was a specific term of her employment that the respondent would be entitled to the use of a ...

At the time of her joining the applicant, there was no policy in place regulating the use and entitlement to the vehicle. Such was put in place later and there is no dispute between the parties that it applied to the respondent.

In terms of her contract of employment, the applicant was allocated a VW Polo registration number AAG 1727.

On 30 October 2008, the respondent wrote to the applicant, giving notice of her intention to resign from employment. In her letter, she indicated that her last working day would be 17 November 2008. She indicated that she had some days that had accrued to her as leave which she intended to forfeit in lieu of the requisite notice period.

It may be pertinent to note, at this stage, that while the parties wrangled for some time as to whether the respondent had given adequate notice or not, that dispute is not before me and has since been resolved. The status of the respondent as a former employee of the applicant is thus not in dispute.

On 14 November 2008, three days before her last working day, the respondent wrote to the applicant seeking to clarify her calculation of the notice period she had given to the applicant. In the second paragraph of the letter she wrote that she was entitled to purchase the motor vehicle in her possession. It is not clear on the papers how this issue had arisen.

On 17 November 2008, the respondent left the employment of the applicant taking the motor vehicle with her. The applicant, not being persuaded that the respondent was entitled to retain possession of the vehicle after the termination of her employment, wrote to the respondent requesting her to surrender the vehicle. The respondent did not return the vehicle maintaining that she was entitled to purchase the vehicle. This prompted the applicant to file this application seeking an order compelling the applicant to surrender the vehicle to it.

The application was opposed.

In opposing the application, the respondent objected to the jurisdiction of this court, arguing that the dispute between the parties is essentially a labour issue over which the Labour Court has exclusive jurisdiction....,.

The issue of when the jurisdiction of this court is ousted in favour of the exclusive jurisdiction of the Labour Court has been before this court in a number of instances. In my view, it is the settled position at law, now, that the jurisdiction of all other courts is excluded in matters where the Labour Court has been granted specific jurisdiction by the Labour Act [Chapter 28.01] (“the Act”). See Tuso v City of Harare 2004 (1) ZLR 1…, and Zimtrade v Malord Makaya HH52-05.

The issue that falls for determination in this application is whether the dispute before me is a dispute that the Labour Court has exclusive jurisdiction.

Section 89(6) of the Labour Act provides that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

Section 89(1) of the Labour Act provides:

“(1) The Labour Act shall exercise the following functions -

(a) Hearing and determining appeals in terms of this Act or any other enactment; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.”

In interpreting these two sections of the Labour Act, this court has, in the authorities I have cited above, held that the Labour Court has exclusive jurisdiction in all applications and matters that are not only defined but are determinable in terms of the Labour Act. In other words, the Labour Court has jurisdiction in all matters where the cause of action and the remedy for that cause of action are all provided for in the Labour Act.

In all other matters, where the cause of action and the remedy are at common law, the jurisdiction of this court is not ousted.

It is common cause that the applicant and the respondent are no longer employer and employee respectively. The resignation of the respondent as the applicant's Chief Pharmacist is not in dispute. The dispute between the parties centres on the possession of the applicant's motor vehicle to which the respondent claims a right.

While it has to be accepted that the respondent's claim of right to the motor vehicle arises from her terminated contract of employment with the applicant, this is a far cry from holding that there is a labour dispute between the parties that can find a remedy or resolution in terms of the Labour Act.

The resolution of the dispute between the parties is not entwined with the resolution of the contract of employment as was the case in Zimtrade v Malord Makaya HH52-05, where, pending determination of the contract of employment, the employer sought to repossess its assets from the employee using the rei vindicatio.

It appeared to me then to be the correct position at law that where the validity of the suspension of the employee or the termination of their employment is still pending, the rei vindicatio could not properly lie at the instance of the employer. I am still of the same view. On the contrary, where the status of the former employee is without dispute, the rei vindicatio can lie at the instance of the employer, in appropriate cases, and the matter thereby falls outside the purview of the Labour Court as it is not a matter that can be heard or determined in terms of the Labour Act or any other related enactment.

It is my view that the rei vindicatio is not a cause of action whose remedy can be granted in terms of the Labour Act as a stand alone remedy in the absence of a dispute that is specifically provided for under the Labour Act.

On the basis of the foregoing, I would dismiss the point in limine raised by the respondent and hold that the jurisdiction of this court over this matter remains.

HH150-09 : SOUTHBAY REAL ESTATE (PVT) LTD vs SOUTHBAY PROPERTIES (PVT) LTD and G RATISSO and CHIEF REGISTRAR OF COMPANIES
Ruled By: MAKARAU JP

The jurisdiction of this court over all matters and people in Zimbabwe is a power inherent in the court as the only superior court in the land with unlimited jurisdiction at first instance.It is not ousted save by the clearest language in a statute.In instances where this court has concurrent ...

HH51-10 : DHL INTERNATIONAL (PVT) LTD vs CLIVE MADZIKANDA
Ruled By: MAKARAU JP

The respondent was employed by the applicant as its Finance Manager up to July 2009 when allegations of misconduct were leveled against him. A disciplinary hearing was convened to determine the validity of the allegations and it found him guilty as charged.

He appealed to the applicant's Area Managing Director against the dismissal without success.

He then appealed to the Labour Court arguing that his dismissal was racially motivated, and, in any event, the penalty meted against him was unduly harsh. The appeal to the Labour Court was pending at the time of the hearing of the application.

After the respondent had lost his appeal to the Area Managing Director, the applicant demanded the return of certain of its assets that were in the possession of the respondent, being assets that the applicant had put into his possession in fulfillment of his conditions of service.

The respondent did not hand over to the applicant a motor vehicle, an Isuzu truck bearing the registration number AAG 0764.

This prompted the applicant to file this application, seeking an order compelling the respondent to deliver the vehicle.

The application was opposed.

In opposing the application, the respondent denied that he was properly dismissed from employment and submitted that he has bright prospects of success on appeal. It was his view that the justice of the matter demands that he retains the motor vehicle pending the determination of his appeal by the Labour Court.

In his heads of argument, the respondent argued in limine that this court has no jurisdiction to determine the matter, exclusive jurisdiction in the matter having been reposed in the Labour Court by the provisions of section 89 of the Labour Act [Chapter 28.01] (“the Act”).

In my view, two issues arise:

(i) Firstly, I have to determine whether this court has jurisdiction over the dispute between the parties.

(ii) If this court does enjoy jurisdiction in the matter, I must proceed to determine whether or not, pending determination of the respondent's appeal in the Labour Court, the applicant can retrieve its motor vehicle from the respondent using the rei vindicatio.

The issue of when the jurisdiction of this court is ousted by the provisions of the Labour Act has been before this court in a number of cases before: see National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and Others SC08-05 and Tuso v City of Harare 2004 (1) ZLR 1 (HC).

In my view, I think the position is now settled, that, a dispute falls to be determined exclusively by the Labour Court if such arises from a cause of action that has been specifically provided for in the Labour Act and for which a remedy is also provided for in the Labour Act.

Section 89(1)(a) of the Labour Act provides that:

“(1) The Labour Court shall exercise the following functions -

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b)…,.; and

(c)…,.; and

(d)…,.; and

(e)…,.”

(The other paragraphs are inapplicable in this matter).

Section 89(6) of the Labour Act then proceeds to provide that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal, or matter referred to in subsection (1).”

The literal and grammatical meaning of the two sections, read together, have been held in the cases that I have referred to above to mean, that, if the dispute is provided for in the Labour Act, both in terms of cause of action and remedy or remedies, then, the Labour Court has exclusive jurisdiction over the dispute.

In casu, it has been argued on behalf of the applicant, that, the applicant has brought a common law vindicatory claim against the respondent in which it seeks to recover its motor vehicle from the respondent.

In this regard, the applicant is relying on the common law cause of action that allows an owner to vindicate its property from whosoever is in unlawful possession of same, and, therefore, the dispute falls outside the purview of the Labour Court which cannot determine common law causes of action.

As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals, among others, that are brought in terms of the Labour Act.

Where, however, a dispute can either found a cause of action at common law and/or in terms of the Labour Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise.

I say appears to arise because the apparent conflict can be easily resolved by paying regard to the overall intention of the Legislature in creating the Labour Court.

In my view, in such a case, the Labour Court's jurisdiction, being special, must prevail.

It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Labour Act has made specific provisions for the same. In my view, if the dispute is provided for in the Labour Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.

From the number of similar disputes being filed with this court, one would say that there appears to be a general misconception amongst employers that one can easily avoid the jurisdiction of the Labour Court by seeking to recover property in the possession of an employee without first exhaustively dealing with the termination of the employment of that employee.

I have had occasion to consider a similar question in Zimtrade v Makaya 2005 (1) ZLR 427 (H). In that matter, which was unopposed, I declined jurisdiction.

My reasoning in that matter was, firstly, that the Labour Court has exclusive jurisdiction in matters relating to suspensions from employment and termination of employment. Secondly, I reasoned that the possession of the employer's property by an employee, in terms of the contract of employment, is so interdependently linked to the contract that one cannot decide on one without deciding on the other.

In the result, because the Labour Court has exclusive jurisdiction over the one, it follows that it also has exclusive jurisdiction over the other.

The conditions of service of an employee are simply the terms upon which that employee is employed, and, to try and separate the contract from its terms appears to me legally untenable, and, in any event, highly undesirable.

In the arguments that have been made on behalf of the applicant, I find nothing that persuades me to move me from the views I expressed in Zimtrade v Makaya 2005 (1) ZLR 427 (H).

On the basis of the above, I would hold that this court has no jurisdiction in the above matter.

HH148-10 : ZIMASCO (PVT) LIMITED vs FARAI MARIKANO
Ruled By: MTSHIYA J

This is an opposed application wherein the applicant seeks the following relief:“1. Respondent shall, within two hours of the service of this order on him, restore the following property to the applicant;(a) Mitsubishi Pajero 3.0 Registration Number AAV-5956;(b) Laptop HP Compaq 6720;(c) Cellphone Samsung D880;2. The cost of this application ...

This is an opposed application wherein the applicant seeks the following relief:

“1. Respondent shall, within two hours of the service of this order on him, restore the following property to the applicant;

(a) Mitsubishi Pajero 3.0 Registration Number AAV-5956;

(b) Laptop HP Compaq 6720;

(c) Cellphone Samsung D880;

2. The cost of this application shall be borne by the respondent.”

The relief sought arises from the fact, that, upon termination of employment, the respondent retained the applicant's property which is being claimed in the relief quoted above.

It is common cause, that, prior to 18 September 2009, the respondent was employed by the applicant as its Health Services Manager. The respondent's employment was terminated on grounds of ill-health through an internal memorandum dated 18 September 2009. The memorandum reads as follows:

“I acknowledge receipt of your memo dated 15 September 2009 including medical reports from your doctor (Mr Macheka) and some clinical psychologist (Mr Broomberg).

The letter from Mr Macheka is very clear in stating that your ill-health is such that you will not be able to resume your job after the legally stipulated one hundred and eighty days. Mr Macheka states clearly, in reference to yourself, that:

'he needs more time off work for a full resolution of his injuries though at this point one cannot state a definite time-frame and will depend on future reviews and assessment in 2 months time.'

You have now exceeded your maximum sick leave in one year period of service (that is, from 11 March 2009 to 14 September 2009). It leaves the company with very little option, therefore, than to terminate your contract of employment forthwith (that is, with effect from 18 September 2009) in accordance with section 14(4) of the Labour Act [Cap 28:01].

Please note that due to your failure to obtain your doctor's certificate by 17 July 2009, as had been instructed and as re-iterated in previous communication to you, you have forfeited your chance of being terminated through the company's medical boarding process.

Your are thus instructed to surrender all company assets in your possession to the General Manager, Shurugwi not later than close of day on Monday 21 September 2009. For avoidance of doubt, the said assets include the company PAV, laptop, cellphone and line. Failure to surrender the said company assets will result in the company instituting any legal process necessary to recover any such assets.

Your terminal benefits, which include any outstanding salary and leave days up to 18/09/09 will be deposited into your account provided an exit form has been duly completed clearing you of any outstanding liabilities to the company. Your pension benefits from both the Zimasco Pension Fund and NSSA will be processed in the normal manner.”

Paragraph 6 of the above memorandum refers to the property that the applicant wants the respondent to return to it.

The respondent admits that the property belongs to the applicant but refuses to release the property on the ground of unfair dismissal.

In his opposing affidavit, the respondent states as follows:

“1. I wish to raise a point in-limine. It is common cause, that, on 9 October 2009, I instituted proceedings in the Labour Court challenging applicant's decision to terminate my employment contract summarily, see copy of proof of service and copy of the application of review and appeal attached hereto marked annexures (A), (B), and (C).

2. It is common cause that those proceedings are still pending and have not been disposed of.

3. There is, accordingly, a litigation pending between the parties on the same cause of action and in respect of the same subject matter in the Labour Court and this honourable court should decline to exercise its jurisdiction as this is purely a labour matter which should be dealt with and has been properly placed before the Labour Court.”

The respondent further declares:

“I will state that I am in possession of the items pending the settlement of the matter as stated in above Ad Para 3.”

The respondent therefore urged the court to dismiss the application.

In his submissions, counsel for the applicant stated, that, the applicant had satisfied the requirements for an action for vindication. This, he said, was largely so because the respondent himself admitted that the assets he was in possession of belonged to the applicant.

It was submitted, that, notwithstanding the provision of section 89(6) of the Labour Act [Chapter 28:08] (“the Act”), there was no pending matter in the Labour Court relating to an employment dispute between the applicant and the respondent. That being the case, it was argued, the respondent's plea of lis alibi pendens was misplaced.

The undisputed fact was that the applicant's application was filed on 8 October 2009 while the respondent's review application/appeal in the Labour Court was filed on 9 October 2009.

It was therefore the applicant's contention, that, for the special plea to apply, there must have been an appeal/application already pending in the Labour Court.

It was further stated, that, even if such an appeal/application were pending, the court had a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens.

In the exercise of that discretion, the court would have regard to the equities and the balance of convenience in the matter.

In casu, the applicant's argument was that, with the respondent's contract of employment having terminated on 18 September 2009, it wanted its assets restored for the advancement of its business activities. The respondent had no right to hold onto the assets.

It was further submitted, that, the subsequent action placed before the Labour Court by the respondent was based on an allegation of an unfair labour practice on the part of the applicant.

However, in casu, the applicant was seeking relief based on actio rei vindication.

The matters before the courts, according to the applicant, were therefore not based on the same subject matter.

That being the case, and based on its 'full original civil jurisdiction over all persons and over all matters within Zimbabwe' it was argued, this court had jurisdiction to entertain the application unless that jurisdiction is clearly ousted in terms of legislation.

The Labour Court, it was argued, as a special court, only dealt with matters provided for in the Labour Act.

There was no provision for an application for vindication in the Labour Act. This court therefore had the jurisdiction to deal with such an application, it was submitted.

In his supplementary Heads of Argument…, the respondent argued as follows:

“1.1. The applicant, through this application, seeks the restoration of certain property that is in the respondent's possession consequent upon the employment relationship that subsists between the parties.

1.2. It is common cause that there is an ongoing labour dispute between the parties herein, in which the respondent has made an application, to the Labour Court, for a determination of his dismissal as having been unfair.

1.3. It is also common cause that the application made by the respondent, in the Labour Court, falls within the ambit of the provisions of section 89(1) of the Labour Act, more particularly section 89(1)(a).

1.4. It also follows, therefore, that the provisions of section 89(6), quoted above, apply to this matter. While the application made herein is one for the restoration of the assets in the respondent's possession as a consequence of his employment, that issue cannot be related to in isolation from the main application made by the respondent in the Labour Court, which application has the potential of disposing of the whole issue once and for all.

1.5….,.”

Relying on Zimtrade v Malord Makaya HH52-05, the respondent submitted, that, the restoration of the applicant's property could not be separated from the determination of the labour dispute.

The matter, it was argued, fell within the provisions of section 89 of the Labour Act which gives the Labour Court powers to hear and determine issues in labour disputes in the first instance.

In support of his case, the respondent quoted from Zimtrade v Malord Makaya HH52-05 where MAKARAU J…, said:

“Notwithstanding the arguments advanced by Mr Dondo, I am of the opinion, that, matters relating to suspension from employment, with or without salary, and matters relating to dismissals, are specifically within the purview of the Labour Court as these are matters that are provided for in the Act and the regulations made thereunder. There is adequate provision under the Act for setting up machinery to resolve such disputes.

Thus, following my reasoning in the SIBANDA matter, the jurisdiction of this court is specifically ousted in respect of matters of dismissals and suspensions as these are specifically provided for the Act.”….,.

The respondent went further to state, that, the same principles alluded to in Zimtrade v Malord Makaya HH52-05 had been given the same force in T.O. Nyandoro v Cimas Medical Aid Society HC6652/08 where MAKARAU JP…, again said:

“I have had occasion to comment on the jurisdiction of this and the Labour Court in MARTIN SIBANDA & ANOR v BENSON CHINEMHUTE & ANOR HH131/04. In that matter, I came to the conclusion that section 89(6) of the Act takes away the jurisdiction of this and other courts in the first instance in all matters where the Labour Court has been specifically granted jurisdiction. The meaning that I gave to the section in that judgment was that whatever the Labour Court was specifically empowered to do, it would do exclusively. I remain of the same opinion.”…,.

I now come to the issue of jurisdiction.

In casu, the argument to deny this court jurisdiction is largely based on the provision of section 89(6) of the Labour Act which provides as follows:

“(6) No court, other than the Labour Court, shall have jurisdiction, in the first instance, to hear and determine any application, appeal, or matter referred to in subsection (1).”

It is not in dispute that this application is for vindication and is therefore not in terms of the Labour Act. However, the respondent argues that the property in question, having come into his possession through his employment by the applicant, that property cannot be separated from a dispute that relates to his employment.

The property formed party of his conditions of service as per the contract of employment.

Indeed, in his points in limine, the respondent states as follows:

“1. Respondent will argue that the determination of this has a direct and substantial effect on the outcome of the matter pending in the Labour Court in that the outcome of the matter in the Labour Court will resole the validity of the termination of the employment contract in terms of which the respondent acquired permission of the assets concerned.

Put differently, if the High Court were to rule in favour of the applicant it would have, in essence, accepted as fact, that the respondent's contract of employment was validly terminated by the applicant, yet that issue is not before the High Court.

Significantly, the High Court will have usurped the powers of the Labour Court to determine the validity of the respondent's employment contract.”

The respondent goes on to state as follows:

“Respondent admits that applicant is the owner of the assets and that respondent is in possession of the assets.

Respondent will argue that he is in possession of the assets in terms of an employment contract entered into between the parties; a copy of the contract is attached.

Respondent will further argue that the said contract of employment was unlawfully and summarily terminated by applicant by letter dated 18 September 2009. A copy of the letter is attached.”

A reading of the offer letter of employment will show that clause 20 thereof provides as follows:

“You will be entitled to purchase a company vehicle of your choice up to a certain value limit. Should you wish to procure a vehicle with a cost price in access of this limit, this will be approved, provided that the extra sum is paid in cash by yourself at the time of purchase.

All fuel and maintenance costs will be for your account, and your basic salary does include an allowance for fuel for business travel in and around Shurugwi/Gweru.

Your will be entitled to claim for any other prior approved business travel at A.A. Rate, less the portion of the rate for Insurance and Licensing.

Full details of the scheme will be available after acceptance of this employment opportunity.”

The foregoing clearly shows, that, the vehicle belonged to the applicant, and, in his heads of argument, the respondent states as follows:

“Respondent admits that the applicant is the owner of the assets and that the respondent is in possession of the assets.”

In paragraph 4.2. of his opposing affidavit, the respondent also states that:

“I will state that I am in possession of the items pending the settlement or the matter as stated in above AD Para 3.” (AD Para 3 refers to the settlement of the labour dispute in the Labour Court)

Furthermore, in item 13 of Annexure J of his opposing affidavit, the respondent states as follows:

“1. Under the contract I was employed, I have first option to purchase my PAV at book value. The policy was revised downwards and therefore should not affect me but new employees.

2. The vehicle which I am holding now, namely, a Mitsubishi Pajero AAV 5956 is subject to that condition.”

The above is also alluded to in item 10 of the same annexure where the respondent says:

“Re-imbursement for use of own car after amortizing my last vls (an Isuzu KB 320)

Basis of Claim

1. Some years ago, the vehicle policy was changed from a loan scheme to a company vehicle scheme because of increased maintenance costs.

2. One of the clauses was that 'employee on the current loan scheme may at any time amortise their loan and get onto the new company car scheme.'

3. I amortised my loan in terms of that policy and procedure.

4. The policy and procedure was immediately, that afternoon, changed to read that you needed approval of your general manager to amortize. This was AFTER I had amortized.

5. Despite this, I was penalized and went for 18 months without a company vehicle as required by my contract of employment. I also did not receive any compensation from the company for the use of my own vehicle for the period.

6. I calculated the financial loss for the period to be USD14,790 at prevailing exchange rates.”

The same issue of the vehicle is captured in his affidavit to the police, which affidavit is annexure 'B' to the applicant's founding affidavit. In paragraphs 3-13 the respondent states as follows:

“1….,.

2….,.

3. I am in possession of a Mitsubishi Pajero Reg. Number AAV 5956 registered in the name of Zimasco. I am in possession of a laptop computer belonging to Zimasco.

4. I have a cellphone line 0912286646 issued to me by Zimasco.

5….,.

6. Zimasco officically allocated the vehicle to me.

7. The above goods are subject of a labour dispute, which is still in process.

8. Zimasco, in turn, owes me a lot of money, which is subject of determination in the same labour dispute.

9. IT IS CATEGORICALLY NOT TRUE THAT THERE IS ANY THEFT INVOLVED.

10. I HAVE NOT STOLEN THE VEHICLE FROM ZIMASCO ANY MORE THAN ZIMASCO STOLE THE MONEY THEY OWE ME FROM ME.

11. I HAVE NO INTENTION OF KEEPING THE VEHICLE ANY LONGER THAN BEYOND THE LEGAL DETERMINATION OF THE MATTER.

12. I AM MERELY KEEPING THE ITEMS IN SAFE CUSTODY AS ZIMASCO IS ALSO KEEPING IN SAFE CUSTODY WHAT I BELIEVE OWE ME.

13. THIS IS A PURELY CIVIL DISPUTE MATTER SUBJECT TO DETERMINATION BY THE JUDICIARY PROCESS OF THE REPUBLIC OF ZIMBABWE.”

From the foregoing, I am informed that there is indeed a labour dispute still raging in the Labour Court.

That fact is not disputed by the applicant.

The respondent's position is that once that labour dispute is resolved he will surrender the applicant's assets, if need be.

I say 'if need be' because the Labour Court's decision is not yet known.

However, if the Labour Court were to rule in his favour, the withdrawal of the assets from him, at this stage, would lead to serious prejudice on his part, which prejudice the applicant cannot easily compensate him for i.e loss of use of motor vehicle for the period prior to the Labour Court's determination.

I hold the view, that, the total cost to the employer, of retaining an employee, includes the employee's salary and all benefits.

I would, therefore, on that basis, find it untenable, in casu, to remove the assets in question from the respondent's disputed contract of employment.

The employer's obligation to meet total costs of retaining an employee only vanish when employment is finally terminated.

The labour dispute now before the Labour Court is based on a contract of employment.

The assets in casu clearly form part of the respondent's conditions of service (in particular the vehicle).

In any case, the respondent is at liberty to apply to the Labour Court for the continued enjoyment of his full employment benefits until that court makes a final determination on the issue of his dismissal. It would therefore be premature to remove from him the assets that are linked to the labour dispute that he has placed before the Labour Court.

To that end, I am unable to distinguish this matter from Zimtrade v Malord Makaya HH52-05 where MAKARAU J…, ruled that in certain circumstances “an employee can always raise the defence of a claim of right to possess the property of an employer until he or she is effectively and lawfully dis-entitled to the property.”

We have, in casu, a situation where the respondent is saying:

“I was unlawfully dismissed, and, before the unlawful dismissal, I was entitled to the use of the assets which are the subject matter of this application. My case is now before the Labour Court where I am demanding my employment back together with all benefits attaching to my employment.”

The applicant has drawn my attention to the case of Unimark Distributors (Pvt) Ltd v ERF 94, Silvertondale (Pvt) Ltd 1999 (2) SA 986…, where the following appears:

“But, there can be little doubt, that, one of its incidents (dominium) is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found from whosoever holding it. It is inherent in the nature of ownership that possession of the res should be normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some rights enforceable against the owner, e.g. right of retention or a contractual right.”

I agree with the above.

I am, in casu, of the view, that, the respondent's disputed contract of employment gives him the right to hold onto the assets until the Labour Court declares that he does not enjoy such a right.

The respondent is not merely saying: “I am holding onto the assets because you owe me money.”

A reading of his affidavit to the police might paint that picture. However, the issue goes beyond that. He is actually saying:

“I have a contractual interest in these assets as they form part of my conditions of employment. I shall only release the assets when the Labour Court confirms my dismissal.”

I further believe, that, it is the Labour Court that shall determine whether or not the changed policy relating to vehicles applied to the respondent as alleged by him in his papers.

That being the respondent's argument, the issue of a lien does not arise.

My view is that section 89(6) of the Labour Act, as quoted in this judgment, clearly gives exclusive jurisdiction to the Labour Court in all labour disputes.

Given the wording of that section, I do not see how any other court can seek to place itself as a court of first instance in any labour dispute.

Admittedly, parties retain the right to follow the arbitration route.

Notwithstanding its inherent jurisdiction, I think this court should go a long way to give effect to the legislature's intentions in creating a special court to deal with all labour disputes in the country.

Clearly, in terms of section 89(6) of the Labour Act, the power to hear and resolve the labour dispute between the parties in casu resides in the Labour Court.

Indeed, as I have already said, an attempt by any other court, at this stage, to deal with any aspect of the dispute, would certainly amount to interference with the special functions bestowed on the Labour Court by the legislature.

That is the reason why the legislature was quite specific as to clearly state that “no court, other than the Labour Court” would have jurisdiction in the first instance to hear and determine matters of this nature.

This is a case of dismissal from employment and therefore a labour dispute.

I therefore believe, that, once any other court is satisfied, in a matter placed before it, that the issues for determination therein are entirely anchored on a labour dispute, then, such court should immediately refer the matter to the special court, namely, the Labour Court.

Such a move, would, in my view, be in line with the intentions of the legislature as spelt out in the Labour Act.

I therefore find merit in the respondent's opposition to this application. The application cannot therefore succeed.

I accordingly order as follows:

1. The application be and is hereby dismissed.

2. The applicant shall pay costs of suit.

HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED
Ruled By: MAKONI J

The respondent raised a point in limine that this court has no jurisdiction on the basis that the claim arises from the termination of the applicant's employment contract with the respondent. The matter falls within the realm of the labour law.The applicant then filed a replying affidavit in which he ...

HH31-11 : ESTHER CHIYADZWA vs BETTY MAGUWU
Ruled By: BERE J

On the initial day of the hearing of this matter, I invited counsel to address me on the second issue which I deemed to be quite central and decisive in this matter.After hearing what I would term extremely conservative submissions from counsel I held that this court had jurisdiction to ...

HH94-11 : BEMBA FARM (PVT) LTD vs ZIMBABWE HORTICULTURE AGROINDUSTRIES AND GENERAL AGRICULTURE WORKERS UNION and OTHERS
Ruled By: BHUNU J

If the applicant's complaint is that the respondents are inciting its employees to embark on illegal collective job action, this becomes essentially a labour dispute subject to resolution in terms of the Labour Relations Act.It is now settled law that the High Court, or any other court for that matter, ...

HH102-11 : KAREN TUMAZOS vs TRAVEL CONECTIONS (PRIVATE) LIMITED and STEWART CRANSWICK
Ruled By: MTSHIYA J

In supplementary heads of argument filed on 8 February 2011, the respondents argued this was a labour matter which should be dealt with under section 89 of the Labour Act Chapter 28:01].It was submitted that this was so because the applicant had indicated that she had instituted proceedings in the ...

In supplementary heads of argument filed on 8 February 2011, the respondents argued this was a labour matter which should be dealt with under section 89 of the Labour Act Chapter 28:01].

It was submitted that this was so because the applicant had indicated that she had instituted proceedings in the Ministry of Public Service, Labour and Social Welfare to deal with the unlawful termination of her contract of employment. Counsel for the respondents submitted that the basis of the relief sought derived from an employer/employee relationship. The applicant was seeking a determination of what her terminal benefits were. The matter, it was argued, was pending at the Ministry of Public Service, Labour and Social Welfare.

Counsel for the applicant argued that the profit sharing agreement was not part of the applicant's conditions of service. This, it was argued, was a separate contract from the employment contract.

To the extent that the applicant's claim is firmly based on the fact that there was between her and the first respondent a distinct profit sharing agreement. I would agree with counsel for the applicant's submission. The applicant is not raising an employment dispute. She is making a claim on an agreement which, although probably influenced by virtue of her employment, had nothing to do with her contract of employment. The fact that her contract of employment might have placed her in an advantageous position into being granted a profit sharing agreement, does not, in my view, convert this into a labour dispute.

The thrust of the applicant's argument is that there was a profit sharing agreement between her and the first respondent. The first respondent had failed to honour her entitlements for the years 2006 and 2007. There was therefore need for a debatement of account in order to establish what she ought to have been paid.

In her heads of argument, counsel for the respondents correctly notes:

“The issue that has been brought before this Honourable Court relates to relief brought in instances where a partnership contract exists and an issue of accounting arises, for example upon dissolution of partnership. The issue of debatement is, for example, a sequitor to the fiduciary duty between parties who are in a partnership.”

The above realisation, in my view, is an acceptance of the fact that this is not a labour matter.

Accordingly, this court can deal with the issue.

HH116-11 : TELECEL ZIMBABWE (PVT) LTD vs NAQUIB OMAR
Ruled By: CHIWESHE JP

In his supplementary heads of argument, the respondent argued, in limine, that this court has no jurisdiction to determine the matter. Section 89(6) of the Labour Act [Chapter 28:01] provides as follows:“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine ...

In his supplementary heads of argument, the respondent argued, in limine, that this court has no jurisdiction to determine the matter.

Section 89(6) of the Labour Act [Chapter 28:01] provides as follows:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

And subsection (1) provides, inter alia, in the applicable, paragraph as follows:-

“(1) The Labour Court shall exercise the following functions:-

(i) Hearing and determining applications and appeals in terms of this Act or any other enactment;”

The provisions of section 89(6) of the Labour Act [Chapter 28:01] and section 89(1)(i) of the Labour Act [Chapter 28:01] are clear and unambiguous. In all labour matters, no court, other than the Labour Court, has jurisdiction in the first instance to hear and determine any application, appeal or matter in which section 89 of the Labour Act [Chapter 28:01] has bestowed jurisdiction on the Labour Court.

Many a time legal practitioners have approached this court with applications pertaining to labour matters notwithstanding the ouster of jurisdiction in terms of section 89 of the Labour Act [Chapter 28:01]. Some have argued that this court, being clothed with inherent jurisdiction, is empowered to intervene in a purely labour dispute by virtue of that fact. Others have argued that, at the very least, this court has concurrent jurisdiction to determine labour disputes.

I am unable to agree with such submissions given the clear wording of section 89(6) of the Labour Act [Chapter 28:01] and section 89(6)(1) of the Labour Act [Chapter 28:01]. The legislature clearly intended that all labour disputes be dealt with, to the exclusion of any other court, by the Labour Court - at least in the first instance. If the legislature had intended otherwise, it would have enacted appropriate and deliberate provisions to that effect. I would hold that in the absence of any such provision, this court has no jurisdiction to hear and determine the present application.

I am fortified in this regard by the decision of MAKARAU JP…, in the case of DHL International (Pvt) Ltd vs Clive Madzikanda HH51-10 wherein the facts were on all fours with the facts in the present case. In that case…, the learned JUDGE PRESIDENT…, stated, and I agree, that it was now settled that “a dispute falls to be determined exclusively by the Labour Court if such arises from a cause of action that has been specifically provided for in the Act and for which a remedy is also provided in the Act.”

The learned JUDGE PRESIDENT then made reference to the case of National Railways of Zimbabwe vs Railways Artisans Union and Others SC08-05, and at page 3 of the cyclostyled judgment, she held as follows:

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals, among others, that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law and/or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can be easily resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction, being special, must prevail. It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”

I am satisfied that the Labour Court has exclusive jurisdiction to hear and determine, in the first instance, any application or appeals where the cause of action has been specifically provided for in the Labour Act and for which a remedy is also provided in the same Act.

Accordingly, I hold that this court has no jurisdiction to hear this application. It is therefore ordered that the application be and is hereby dismissed with costs.

HH124-13 : HOSEA JAMBWA vs GRAIN MARKETING BOARD
Ruled By: MATHONSI J

Even if I am wrong in that conclusion, the applicant still has the insurmountable difficulty arising from the provisions of section 89(6) of the Labour Act [Chapter 28:01] which provides:“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal ...

Even if I am wrong in that conclusion, the applicant still has the insurmountable difficulty arising from the provisions of section 89(6) of the Labour Act [Chapter 28:01] which provides:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1).”

Subsection (1) of section 89 of the Labour Act [Chapter 28:01] lists the functions of the Labour Court. It states:

“The Labour Court shall exercise the following functions -

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel of arbitrators referred to in subs (6) of s98 to hear and determine an application.

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.”

The jurisdiction of this court has therefore been ousted in matters provided for in the Labour Act [Chapter 28:01]. This court retains jurisdiction in respect of only those matters falling outside the ambit of the Labour Act [Chapter 28:01].

The Labour Court has jurisdiction in all matters where the cause of action and the remedy for that are provided for in the Labour Act [Chapter 28:01]: Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) 114 C; DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 204 A.

The applicant's claim arises out of what he perceives to be an unlawful termination of his employment contract. He seeks his reinstatement on the basis that the entire disciplinary process was flawed. These are matters which fall within the jurisdiction of the Labour Court. The jurisdiction of this court has therefore been ousted by section 89(6) of the Labour Act [Chapter 28:01].

The applicant has, unfortunately, proceeded in the wrong court without even exhausting domestic remedies.

Accordingly, the application is hereby dismissed with costs.

HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

With regards to the issue of jurisdiction, I have had sight of the case of Tuso v City of Harare HH01-04 which was referred to me by counsel for the respondent for which I am grateful.I am of the view that the present case is distinguishable as it deals with ...

HH38-14 : JULIET HOMODZA vs CHITUNGWIZA MUNICIPALITY
Ruled By: TAKUVA J

The respondent filed an appearance to defend and subsequently a special plea the nub of which is that this court has no jurisdiction to determine this matter in that issues relating to non-payment of terminal benefits and arrear salaries are specifically within the purview of the Labour Court as these matters are provided for in the Labour Act [Chapter 28:01]. Reliance was placed on section 92 of the Constitution of Zimbabwe and section 89 of the Labour Act [Chapter 28:01] which was quoted in extensio. The respondent also relied on the following cases:

(a) ZIMTRADE v Makaya 2005 (1) ZAR 427 (H);

(b) Tuso v City of Harare HH01-04;

(d) McFoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC)…,.

The gist of the applicant's argument is that this court has inherent jurisdiction to deal with this matter since the Labour Act does not specifically preclude this court from determining a claim for non-payment of terminal benefits properly quantified and acknowledged by the employer. Further, it was submitted that in the present matter there is no employer/employee relationship or dispute that is provided in terms of the Labour Act as the cause of action is clearly premised on a document acknowledged by the respondent reflecting the quantified amount owed to the applicant which document amounts to an acknowledgement of debt. By signing the document acknowledging the terminal benefits, the respondent signified its intention and willingness to be bound by the terms of the same in line with the caveat subscriptor rule.

The applicant relied on the following cases:

(i) DHL International Ltd v Madzikanda 2010 (1) ZLR Z 01…,.;

(ii) Moyo v Gwindingwi NO & Anor HB168-11;

(iii) Samudzimu v Dairiboard Holdings Ltd HH204-10;

(iv) Lynne Ashley v John Goodwin t/a Cambridge Creche & Nursery School HH301-11; and

(v) Martin Sibanda & Anor v Bearson Chinemhute NO & Anor HH131-04.

In my view, the issue of jurisdiction can be resolved by examining the nature of the case the applicant has presented before the court. While I agree that the matter's ancestors had labour law characteristics, this forebear died when the applicant resigned and a modern animal in the form of an acknowledgement of debt emerged.

The applicant simply desires to recover a debt whose acknowledgment forms a separate cause of action based purely on the law of contract. If it is accepted that this court, by virtue of its inherent jurisdiction, can do anything except that which is specifically prohibited by law whereas the Labour Court can only do those things that are specifically permitted by law, the respondent's argument becomes fallacious.

HH171-14 : ANDREW KASERERA and JOHN SIBANDA and SYDNEY MANDIDI and MECK NCUBE and MAJORA LEMBACHURU vs RIOZIM (PRIVATE) LIMITED
Ruled By: MANGOTA J

(b) JurisdictionThis preliminary matter is easily discounted on the basis of the reasoning and findings which the court made in the first matter in limine. This entire case, it is observed, is hinged on the vindicatory, and not disciplinary action which the respondent appears to want the court to accept. ...

(b) Jurisdiction

This preliminary matter is easily discounted on the basis of the reasoning and findings which the court made in the first matter in limine. This entire case, it is observed, is hinged on the vindicatory, and not disciplinary action which the respondent appears to want the court to accept. The court is satisfied that it has the requisite jurisdiction to hear as well as to make a determination which binds the parties to observe and respect the court's decision on the same. It is the court's view that the respondent brought into the equation the far-fetched issue of its purported desire to discipline the applicants as a way of confusing issues which are in themselves clear. The court is satisfied that it has never been, nor is it now, the intention of the respondent to prefer against the applicants' charges which are devoid of malice on its part. Any charges which are preferred against the applicants mala fides as appears to be the respondent's desire in casu constitute an unfair labour practice and therefore unlawful. Section 7(1)(b) of the Labour Act [Chapter 28:01] is pertinent on the point. Neither the Labour Court nor this court, let alone the law, supports the respondent's action of translating what is a purely a civil matter between the parties into a purported labour dispute solely as a way of punishing the applicants for their perceived stubbornness.

If the respondent did have a genuine, as opposed to a vindictive, grievance against the applicants, it would not have sat on its intended action for the length of the observed period of time without doing anything about the matter which it appears to have held so dearly to it.

The law and the courts guard jealously their inherent right, as well as duty, to interfere with employers who take the law into their own hands under the guise that they want to discipline members of their workforce when, in actual fact, their aim and object are totally different from what they say they want to achieve in a lawful manner. Once it is discovered, as it was in the present case, that the employer's purported conduct is unlawful and can best be resolved through lawful means, the court would be failing in its duty if it did not, and does not, put an effective stop to that conduct.

The respondent did well to institute the action which it did under case number HC10472/13. The court which is seized with the matter will, in the fullness of time, determine the unlawfulness, or otherwise, of the applicants' conduct. The court is, accordingly, satisfied that it is clothed with the jurisdiction not only to hear the present application but also to determine its merits and demerits as well as coming up with a clearly defined position on the same.

The respondent's argument on this second preliminary matter does not, therefore, hold.

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED
Ruled By: MTSHIYA J

In response to the respondents' opposition, the applicant submitted that the Labour Court has no jurisdiction to issue a declaratur, and, as such, the applicant cannot obtain the remedy through the provisions of the Labour Act [Chapter 28:01]. The Labour Act [Chapter 28:01], it was submitted, spells out what the ...

The applicant said the High Court, through its inherent jurisdiction, was the correct forum to be approached by the applicant for the relief sought. Furthermore, it was observed that section 13 of the High Court Act [Chapter 7:06] provides that:-

“Subject to this Act and any other law, the High Court shall have full original civil jurisdiction over all matters within Zimbabwe.”

It is indeed also important to note that in addition to the above provision in the High Court Act, sections 171(1)(a) and 172(a) of the Constitution of Zimbabwe Amendment (No 20) Act 2013, provide as follows:-

“171(1). The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

172(2). The Labour Court has jurisdiction over matters of Labour and employment as may be conferred upon it by an Act of Parliament.”

Unless legislatively ousted, the jurisdiction of the High Court extends to all civil matters in Zimbabwe. This is the position as of now, notwithstanding the existence of the Labour Court whose jurisdiction is dependent on what an Act of Parliament says. I therefore believe it would be unconstitutional for the High Court to deny a litigant a hearing in any civil matter if its jurisdiction in that matter is not specifically excluded through legislation. The Zimbabwean High Court can hear any civil matter - including labour-related matters such as this one.

A number of authorities were correctly cited to prove that the Labour Court has no jurisdiction to deal with interdicts. In the main, reference was made to the following cases:-

“NATIONAL RAILWAYS OF ZIMBABWE v ZIMBABWE RAILWAY ARTISANS UNION & ORS: SC08-05 where ZIYAMBI JA stated:

The Application for an Interdict

It was contended by the appellant that the Labour Court erred in dismissing the point in limine raised by the appellant, namely, that the Labour Court had no jurisdiction to entertain an application of this nature, which was for an interdict…,.

Thus, before an application can be entertained by the Labour Court; it must be satisfied that such an application is an application 'in terms of this Act or any other enactment.' This necessarily means that the act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring.” (pages of the Cyclo-styled judgement).

See Also BARCLAYS BANK OF ZIMBABWE LIMITED V SHEPHERED NDIRAYA SC72-05 where MALABA JA stated:

“As the Labour court can only hear and determine applications for relief specified under the appropriate provisions of the Act and there was no power to grant the relief sought by the respondent, the leaarned senior president could not interdict the appellant from conducting disciplinary hearing proceedings under its employment Code of Conduct.” (page 4 of the cyclo-styled judgement).

See Also: HAMILTON FORTUNATE GOMBA v ASSOCIATED MINE WORKERS UNION HH118-05.”

The above reflects what the Labour Court, as a creature of statute, can do….,.

In considering submissions made by both sides, I am satisfied that this court has jurisdiction to deal with the matter before it. Admittedly, the Labour Court has jurisdiction on all those matters specified in the Act that created it. It, however, has not been empowered to issue/grant interdicts, defined in HERBSTEIN and VAN WINSEN – The Civil Practice of the Supreme Court of South Africa 4^th ed as follows:-

“An interdict is an order made by a court prohibiting or compelling the doing of a particular act of protecting a legally enforceable right which is threatened by continuing or anticipated harm. Most interdicts are prohibitory in nature, ordering the respondent to desist or refrain from doing a particular act. A mandatory interdict, on the other hand, orders the respondent to perform an act.”…,.

In casu, the court is being asked to compel continued payment of the applicant's salary and benefits.

Notwithstanding the wording of the draft order, I do strongly believe that the exact relief the applicant is seeking is to be found in his founding affidavit. In para 5.2 of his founding affidavit, the applicant clearly states that is “is an application to compel respondent to pay him full salary and benefits pending the finalisation of the Retrenchment proceedings allegedly instituted by the respondent and pending before the Retrenchment Board or the lawful termination of my contract of employment.”

That is the relief this court is being asked to grant.

The applicant is simply asking this court to compel the respondent to continue paying him his salary until he is retrenched in terms of law and I believe this court has jurisdiction to entertain the applicant's application for the relief he seeks.

Although largely based on labour law, what is before the court, as we have seen, is a civil matter which this court can deal with as provided for in the High Court Act [Chapter 7:06] and in the Constitution of Zimbabwe. Apart from the fact that the Labour Court is not capacitated to grant the relief, there is no legislation that ousts the jurisdiction of this court in a civil matter of this nature.

HB168-11 : NOKUTHULA MOYO vs NORMAN GWINDINGWI N.O. and DAIRIBOARD ZIMBABWE (PVT) LTD
Ruled By: MATHONSI J

I am in total agreement with MAKARAU JP…, when she stated in DHL International Ltd v Madzikanda HH51-10 that the Labour Court has exclusive jurisdiction in matters relating to suspensions from employment and that the possession of the employer's property by an employee in terms of the contract of employment is so interdependently linked to the contract that one cannot decide on one without deciding on the other. For that reason, if the Labour Court has exclusive jurisdiction over the one, it must have exclusive jurisdiction over the other.

Section 89(6) of the Labour Act [Chapter 28:01] provides:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

In addition to that, Section 89(1)(d1) of the Labour Act [Chapter 28:01] provides that the Labour Court shall have “the same powers of review as would be exercisable by the High Court in respect of Labour matters.”

This court has had occasion, in a number of cases, to interpret these provisions which were introduced to the Labour Act in 2003. BHUNU J was more explicit in Tuso v City of Harare 2004 (1) ZLR (1) (H)…, where the learned judge said:

“It is manifestly clear to me that the intention of the legislature was to expressly exclude the jurisdiction of all other courts in areas where the Labour Court has jurisdiction in the first instance.”

At 4C he said;

“It is my considered view that it is only in respect of those employees who do not fall under the purview of the Labour Relations Act that the High Court may exercise its general powers of review because its powers in this regard have not been expressly excluded by statute.”

This interpretation was followed by BERE J in Plaza Hotel (Pvt) Ltd v Marimbita and Another 2007 (1) ZLR 80 (H)…,.

On his way to dismissing an application on the basis that the applicant had not exhausted domestic remedies, KARWI J, in Chawora v Reserve Bank of Zimbabwe 2006 (1) ZLR 525 (H)…, criticised the decision in Tuso v City of Harare 2004 (1) ZLR (1) (H) as follows:

“It seems to me that there is no specific provision in the Labour Act that ousted this court's jurisdiction. I am of the considered opinion that a cursory and simplistic approach was adopted in the Tuso case. Besides jealously guarding the inherent jurisdiction of this court, the Sibanda case (Sibanda and Another v Chinemhute NO and Another HH131-04) correctly takes into recognition the fact that there is no law in Zimbabwe which has ousted the jurisdiction of this court in such matters.”

I respectfully disagree.

Section 89(6) of the Labour Act [Chapter 28:01] is clear and unambiguous that “no court” has jurisdiction over matters falling under the purview of the Labour Court. This court does not possess the machinery to jealously guard its inherent jurisdiction where the legislature has specifically taken it away.

I find the interpretation made by MAKARAU JP…, in Medical Investments Ltd v Pedzisayi HH26-10 more compelling. It is to the effect that the Labour Court has jurisdiction in all matters where the cause of action and remedy are provided for in the Labour Act. Where the cause of action and remedy are at common law, the jurisdiction of the High Court is not ousted. See also DHL International Ltd v Madzikanda HH51-10.

In casu, the applicant is contesting the termination of her employment contract on which her right of occupation of No.5 Lourie Road, Burnside, Bulawayo, is premised. The cause of action and the remedy are in the Labour Act. For that reason, the jurisdiction of this court has been ousted by section 89(6) of the Labour Act [Chapter 28:01].

The applicant has therefore proceeded in the wrong court. She did not exhaust remedies available to her. No amount of double speak can alter that position….,.

In the result, I make the following order, that

(1) The application is hereby dismissed with costs.

HH211-14 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY vs RONALD MUTOMBODZI
Ruled By: NDEWERE J

I have considered the submissions on jurisdiction and I have concluded that the application, being a rei vindicatio, the High Court has jurisdiction to deal with the matter on the basis of the Zimasco (Pvt) Ltd v Marikano SC181-10 matter.

HH272-14 : TREVIGLO SERVICES trading as TADA TEAK AND IRON vs EMMERSON GWATIDZO
Ruled By: CHIGUMBA J

The applicant is guilty of failure to act timeously in seeking the appropriate remedies provided by the Labour Act.The applicant is guilty of flirtting from one legal practitioner to another like a bee that flirts from flower to flower in the never-ending search for the right pollen to improve the ...

HH295-14 : SURFACE INVESTMENTS (PRIVATE) LIMITED vs MAURICE CHINYANI
Ruled By: DUBE J

The jurisdiction of the Labour Court is governed by Section 89 of the Labour Act [Chapter 28:01]. The relevant paragraphs read as follows;“89(1) The Labour Court shall exercise the following functions -(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and(b) …,.; and(c) ...

The jurisdiction of the Labour Court is governed by Section 89 of the Labour Act [Chapter 28:01]. The relevant paragraphs read as follows;

“89(1) The Labour Court shall exercise the following functions -

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b) …,.; and

(d) ….,. ;

(e) …,.;

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

These provisions have been interpreted in a number of cases. In DHL International (Pvt) Ltd v Clive Madzikanda HH51-10, MAKARAU J…, held that section 89 of the Labour Act [Chapter 28:01] means that if the dispute is provided for in the Labour Act [Chapter 28:01], both in terms of the cause of action and the remedy, then the Labour Court has jurisdiction over the matter. Similar sentiments were expressed in National Railways of Zimbabwe Artisans Union and Ors SC08-05, where ZIYAMBI JA, in reviewing a matter involving an application for an interdict which had been taken to the labour court remarked thus;

“Thus, the application and the remedies obtainable thereby must be authorised in the Act or the enactment authorising the application to the Labour Court. Nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo, nor have I been referred to ant enactment authorising the Labour Court to grant such an order.”

The reasoning of the judge is equally applicable here as both remedies are common-law remedies which the Labour Court has no jurisdiction to deal with. See also Tuso v City of Harare 2004 (1) ZLR 1 (HC). The reasoning behind this is that the Labour Court is a creature of statute and its jurisdiction is confined to the four corners of the statute.

The next issue is whether the High Court has jurisdiction to determine an application for vindication of property where the Labour Court is seized with a dispute over the dismissal of the employee.

In Zimtrade v Maylord Makaya HH52-05, MAKARAU J declined to grant a rei vindicatio where an employee had been dismissed and the matter was still pending at the Labour Court. She remarked as follows;

“It is in my further view unacceptable splitting of hairs to separate the determination of the validity of suspension from employment, on one hand, from the determination of whether or not that suspension affects the benefits enjoyed by the employee, on the other hand. The two are interdependent and are both governed by the existing employment relationship obtaining between the two parties. The argument that the employer can vindicate his property at any time does not impress me as the employee can always raise the defence of claim of right to possess the property until he or she is effectively and lawfully disentitled to the property.”

This case was followed in Telecel Zimbabwe (Pvt) Ltd v Naquib Omar HH116-11.

CHIWESHE JP was of the view that the wording of section 89(6) of the Labour Act [Chapter 28:01] and section 89(1) of the Labour Act [Chapter 28:01] empowers the Labour Court to deal with applications of this nature, and, further, that the legislature intended that all labour disputes be dealt with, to the exclusion of any other court, by the Labour Court. In Zimasco (Pvt) Ltd v Farai Maynard Marikano HH235-11, the respondent's contract of employment was terminated and he retained the applicant's vehicle. The applicant filed an application for rei vindicatio with this court. MTSHIYA J declined to exercise his jurisdiction over the matter on the basis that the matter was a labour dispute. The Supreme Court, on appeal, set aside the order of the High Court and remitted the matter to the court for determination on the merits before the same judge. The Supreme Court did not expressly deal with the question whether this court has jurisdiction to entertain a rei vindicatio application where the former employee was dismissed and an appeal is pending in the Labour Court. However, it is apparent that the Supreme Court's position was that the High Court has jurisdiction to deal with applications for rei vindicatio pending litigation in the Labour Court.

In an earlier case of Zimbabwe Broadcasting Holdings v Gomo 2010 (1) ZLR 8 (H), GOWORA J had expressed the view that this type of application can be determined by this court. This case involved an employee who had noted an appeal against her dismissal to the Labour Court. The applicant had, in the interim, applied for return of its property. The court held that an appeal to the Labour Court did not give the employee the right to retain the property she was in possession of in terms of a contract of employment that had been terminated unless she had a recognisable defence to the claim by the applicant. The court remarked as follows;

“Our law, as it currently stands, is to the effect that once an employee has been suspended or dismissed from employment, any benefits extended to such employee from that relationship cease. In Chisipite Schools Trust (Pvt) Ltd v Clark, GUBBAY CJ stated:

'Pending the removal of the suspension, the respondent was not entitled to the continued enjoyment of the benefits comprising the free occupation of the Headmistress's house and the continued use of the motor vehicle. A Labour Relations Officer cannot order the respondent to surrender these particular benefits. Consequently, the applicant being unable to resort to self-help approached the High Court for relief, I consider it was justified in doing so.'”

The Labour Court is a creature of statute and is only empowered to deal with matters brought to it in terms of section 89 of the Labour Act [Chapter 28:01]. This implies that it can only deal with disputes that are provided for in terms of the Labour Act [Chapter 28:01], thus, in terms of both the cause of action and the remedy sought. The rei vindicatio is a common law remedy and is not provided for in terms of the Labour Act [Chapter 28:01]. The High Court can deal with this application as it is a court of inherent jurisdiction and it can do so regardless of the stage at which proceedings at the Labour Court are. This approach is based on the principle that despite an employee's challenge to the dismissal, the employee stands dismissed. What is before me is not a labour dispute. Clearly, the Labour Court was not conferred with the jurisdiction to deal with claims of rei vindication. A rei vindicatio is a common law remedy and the Labour Court has no jurisdiction to deal with common law remedies. MAKARAU J expressed reservations in DHL International (Pvt) Ltd v Clive Madzikanda HH51-10 regarding separation of the determination of validity of suspension from employment and determination of whether a suspension or dismissal affects the benefits enjoyed by the employee. It would be desirable to have a one stop shop for all labour related issues. That simply is not the position at law and will remain so until the legislature has decided otherwise.

I am going to deal with the matter without regard to what is happening at the Labour Court. The application is properly before the court.

HH566-14 : TAWADZERA ZISHIRI and SHIRELLA PETERS and ANDRA NYANDEBVU and VIOLET CHATINDO and OTHERS vs STREAMSLEIGH INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

I agree with counsel for the first respondent that to the extent that the applicants are seeking to enforce an employment contract, that dimension of the matter takes the form of a labour dispute which should be resolved by the Labour Court in terms of the ouster provisions of section ...

HB09-14 : ZIMPAPERS GROUP OF COMPANIES T/A THE CHRONICLE NEWSPAPERS vs MILIDZI KHUPHE and THE HONOURABLE M. MOYO-MATSHANGA
Ruled By: MOYO J

The applicant's counsel contends that the inherent jurisdiction that the High Court has includes the review of matters from the Labour Court….,.The applicant's counsel further contends that the High Court, with its inherent jurisdiction, is armed with the requisite powers to review the decisions of the Labour Court on the ...

The applicant's counsel contends that the inherent jurisdiction that the High Court has includes the review of matters from the Labour Court….,.

The applicant's counsel further contends that the High Court, with its inherent jurisdiction, is armed with the requisite powers to review the decisions of the Labour Court on the grounds that he has given.

Section 89(1)(d)(1) of the Labour Act [Chapter 20:01] provides as follows:-

“The Labour Court shall exercise the following functions:

Exercise the same powers of review as would be exercisable by the High Court in respect of Labour matters.”

Section 89(6) of the Labour Act [Chapter 20:01] provides as follows:-

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).

Section 26 of the High Court Act [Chapter 7:06] provides that:-

“Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

Section 27(1)(a) of the High Court Act [Chapter 7:06] provides that:-

“Subject to this Act and any other law, the grounds on which any proceedings or decisions may be brought on review before the High Court shall be absence of jurisdiction on the part of the court, tribunal authority concerned.”

Section 89 of the Labour Act [Chapter 20:01] clearly gives the Labour Court review powers and it takes away, from any other court, the powers to determine or hear matters provided for in that section; powers of review being one of them. On the other hand, Section 26 of the High Court Act [Chapter 7:06] also subjects the High Court powers of review to the provisions of any other law, meaning if another law already provides otherwise, the High Court would not be in a position to exercise the same powers.

Section 26 of the High Court Act [Chapter 7:06] also gives the High Court the power to review the decisions of all inferior courts.

I am in agreement with the findings in the following cases;

Samudzimu v Dairboard Holdings HH204-10, per CHIWESHE JP, where he found that the provisions of the Labour Act [Chapter 28:01] excluded the jurisdiction of the High Court in areas where the Labour Court has jurisdiction.

In the case of Tuso v City of Harare HH01-04, BHUNU J had occasion to consider the legal import of Section 89(6) of the Labour Act [Chapter 28:01] and he held the view that the High Court could not exercise the powers given to the Labour Court in terms of section 89 of the Labour Act [Chapter 28:01].

In the case of Gwindingwi and Another HH168-11, MATHONSI J alluded to the effect of section 89(6) of the Labour Act [Chapter 28:01] and he stated that section 89(6) of the Labour Act [Chapter 28:01] is clear and unambiguous that “no court has jurisdiction over matters falling under the purview of the Labour Court. He further went on to state that the High Court does not possess the machinery to jealously guard its inherent jurisdiction where the legislature has specifically taken it away.

I cannot agree more with this view.

In the case of Medical Investments Ltd v Pedzisayi HH26-10, MAKARAU JP…, found that the effect of section 89(6) of the Labour Act [Chapter 28:01] is that the Labour Court has jurisdiction in all matters where the cause of action and the remedy are provided for in the Labour Act.

It is my considered view that the applicant should have proceeded either in terms of Section 92C of the Labour Act [Chapter 28:01] or section 89(1)(d)(1) of the Labour Act [Chapter 28:01] and not to approach this court with a matter that the Labour Court could clearly handle yet section 89(6) of the Labour Act [Chapter 28:01] has stripped this court of its review powers in so far as all the matters provided for by Section 89 of the Labour Act [Chapter 28:01] are concerned.

I accordingly dismiss the application with costs.

HB21-14 : JONA NDALAMA vs COMMISSIONER GENERAL OF POLICE and CHIEF SUPERINTENDENT SIGAUKE and CO-MINISTER OF HOME AFFAIRS
Ruled By: MOYO J

This is an application for condonation for the late noting of an appeal against the decision of the Commissioner General of Police (the 1st respondent herein)….,.The applicant was convicted in terms of the Police Act [Chapter 11:10] and was sentenced to pay a fine of $10= by a single officer. ...

Appealed
SC01-18 : NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

It is trite that the High Court is a superior court of inherent jurisdiction and that there is a presumption against the ouster of its jurisdiction unless this is clearly intended by the legislature. Thus, any statutory or contractual provision that purports to oust its jurisdiction must be restrictively interpreted....,.Jurisdictional ...

SC56-18 : CITY OF GWERU vs RICHARD MASINIRE
Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

Section 3 of the Labour Act confers jurisdiction on the Act over all employees except those it expressly excludes. It reads:“Application of Act(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution….,.(2) For the avoidance of any ...

Section 3 of the Labour Act confers jurisdiction on the Act over all employees except those it expressly excludes. It reads:

“Application of Act

(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution….,.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

(3) This Act shall not apply to or in respect of -

(a) Members of a disciplined force of the State; or

(b) Members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

Upon a proper reading of the above section, it is self-evident that the Labour Act applies to all employees except those in categories that are expressly excluded therein. These are:

1. Those whose conditions of employment are otherwise provided for in the Constitution.

2. Members of the Public Service as read with section 26.

3. Members of a disciplinary force of the State.

4. Any other employee designated by the President in a statutory instrument….,.

It is plain that the respondent, in the court a quo, dismally failed to prove, on a balance of probabilities, that he is one of those employees expressly excluded from the application of the Labour Act. His argument was that the Labour Act does not apply to him because his contract of employment is exclusively governed by the Urban Councils Act.

That line of argument is defective and unsustainable at law because the Urban Councils Act is subservient to the Labour Act. In terms of section 2A of the Labour Act, the Legislator has decreed it to prevail over any other enactment inconsistent with it.

What this means is that whatever the provisions of the Urban Councils Act might be, they cannot exclude the application of the Labour Act to any employee. It is only the Constitution and the President, by statutory instrument, that can override the application of the Act over any employee.

While the cases decided before the advent of the Labour Amendment Act, 2005 were correct at that time in holding that the Labour Act was inapplicable to senior urban council employees, those judgments have since been overtaken by events.

For that reason, since the promulgation of the 2005 Amendment they have ceased to be valid and binding going forward.

HH92-15 : CAPRI (PVT) LTD vs HOWARD MAPONGA
Ruled By: MATHONSI J

There is absolutely no merit in this application for rescission of judgment, an application informed more by a complete lack of understanding of the role of this court in the registration of arbitral awards made in terms of the Labour Act [Chapter 28:01], an Act of Parliament which, in terms ...

HH126-15 : GODFREY JONGA vs CHIEF EXECUTIVE OFFICER, ZAMBEZI RIVER AUTHORITY and ZAMBEZI RIVER AUTHORITY
Ruled By: MTSHIYA J

In challenging the jurisdiction of this court over the matter, the first respondent relied on section 89(6) of the Labour Act [Chapter 28:01] (the Labour Act) which provides:-“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter ...

In challenging the jurisdiction of this court over the matter, the first respondent relied on section 89(6) of the Labour Act [Chapter 28:01] (the Labour Act) which provides:-

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in in subs (1).”

Subsection 1 of section 89 of the Labour Act provides as follows:-

“(1) The Labour Court shall exercise the following functions –

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application;

(d1) Exercise the same powers of review as would be exercised by the High Court in respect of labour matters.

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.”

Given the above provisions of the law, which grant the Labour Court the same powers of review as the High Court in labour matters, (i.e. section 89(1)(d1) above), counsel for the respondents strongly argued that it was therefore not the business of this court to deal with this application.

In response to the respondents' contention, counsel for the applicant submitted that although employment-related, the decision was administrative in nature and delivered by an administrative authority i.e. the first respondent. He said the decision was not necessarily based on contract. To that end, he relied on the following definition of “administrative action” given under section 2(1) of the Administration of Justice Act [Chapter 10:28] (the Act):-

“Administrative action means an action taken or decision made by an administrative authority.”

The same section of the Act defines administrative authority as follows:-

“administrative authority means any person who is –

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b) A committee appointed by or in terms of any enactment; or

(c) A Minister or Deputy Minister of the State; or

(d) Any other person or body authorised by any enactment to exercise or perform any administrative power or duty.”

The first respondent is an officer of a parastatal who performed an administrative action.

Counsel for the applicant then argued that the High Court had inherent jurisdiction to deal with the matter. He said the Labour Court lacked the jurisdiction which would enable it to issue a declarator leading to the setting aside of the first respondent's decision.

The issue of jurisdiction being raised by the respondents has been raised before in similar matters. However, it cannot be argued outside the current provision in section 171 of the Constitution of the Republic of Zimbabwe as read together with section 13 of the High Court Act [Chapter 7:06] (the High Court Act), which states that:

“The High Court shall have full original civil jurisdiction over all persons and all matters within Zimbabwe.”

Section 171 of the Constitution of Zimbabwe reinforces that jurisdiction by stating that:

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Given the Constitutional provision, it means that no other Act of parliament can oust the jurisdiction of the High Court in all civil matters in Zimbabwe. Accordingly, except for cases expressly reserved for the Constitutional and Supreme Courts, the High Court can, in terms of our law, deal with all civil matters, notwithstanding the fact that they may be statutorily reserved for the Labour Court or any other lower court (i.e. concurrent jurisdiction exists). It would, in my view, be unconstitutional for the High Court to close its doors to litigants with respect to any civil matters.

In view of the foregoing, I am unable to uphold the respondents' point in limine regarding jurisdiction. This court can entertain the application.

Furthermore, apart from the Constitutional provision quoted above, in U-Tow Trailers (Pvt) Ltd v City of Harare & Anor 2009 (2) ZLR 259 (H) MAKARAU J…, in making reference to the Administrative Justice Act, said:-

“Section 4 of the Act provides that any person who is aggrieved by the failure of an administrative authority to comply with section 3 therein may apply to the High Court for relief. It is common cause that the applicant filed this application challenging the decision of the first respondent summarily to cancel the lease agreement. It filed a court application in terms of the High Court Rules. While the application does not make any reference to the provisions of the Act, in my view, it makes allegations that fall squarely within the provisions of the Act. I was satisfied before I referred the question to the parties for further argument that the allegations and contentions made by the applicant in its court application fell within the purview of the Act even if the Act was not specifically invoked. In my view, generally, it is not necessary for an applicant specifically to plead the law that it seeks to rely on as long as the necessary averments are made therein to sustain a cause of action under the applicable law unless the law under which he or she is proceeding requires that certain averments be specifically pleaded. The court is not a slave to the form of the law. It is always a slave to justice whom it must always serve.

For the avoidance of doubt, if I have erred in allowing the applicant to bring a deformed application before the court and the correct position is that it was necessary for the applicant, specifically, to invoke the provisions of the Act, I will condone that oversight in terms of Rule 4C of the High Court Rules, 1971.

As correctly pointed out by the first respondent, this is not an application for review. It is an application for the setting aside of an administrative decision on the basis that it was not arrived at fairly and thus, at law, contravenes the Act. In view of the fact that the applicant succeeds on a matter that it did not specifically raise in its initial heads of argument, I will not punish the first respondent with an award of costs. The same does not apply to the second respondent.”

In view of the above, I am inclined to agree with the applicant that in the review process what he seeks is the setting aside of an administrative decision/action. That challenge, in terms of section 4 of the Administrative Justice Act, can be placed before this court.

The remedy sought and the reasons for it are clear.

Accordingly, notwithstanding the fact that the applicant may not have specifically mentioned the statute relied on in placing the matter before the court, the cause of action is clear and can be entertained by this court.

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

(i) The first point in limine was that the case was purely a labour dispute.To emphasize that point reference was made to the rule nisi from the South African Labour Court. It was then argued that the applicant, having decided to litigate in Zimbabwe, could only approach the Labour Court, ...

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

Legal practitioners, have, with regrettable intransigence, ignored the relevant law, at their own and their client's peril, or actively exploited this seemingly grey area, for a very long time.While it is correct that the High Court has inherent power to regulate its own process, there is nothing in the High ...

HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL
Ruled By: MATHONSI J

Section 89(6) of the Labour Act [Chapter 28:01] has ousted the jurisdiction of all other courts, in the first instance, to hear and determine any application, appeal or matter falling under the jurisdiction of the Labour Court.The present dispute clearly falls under that ouster provision as it should be determined ...

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

At the commencement of the trial in this matter, I mero motu raised the issue of whether or not the jurisdiction of this court has not been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] (“the Act”) in matters brought before me for determination.While this ...

While this court has inherent jurisdiction and may do anything which the law does not forbid, the general fundamental principle of inherent jurisdiction is subject to particular derogation: HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 3^rd ed, Juta & Co Ltd…,.

This court cannot exercise jurisdiction where such jurisdiction is specifically ousted by statute….,.

The plaintiff was employed by the defendant as a Director of the Graduate School of Business Leadership, but, following disciplinary proceedings conducted in terms of the University's Code of Conduct he was dismissed from employment. He appealed to the Labour Court against the dismissal, but, in a judgment handed down on 20 June 2011, the Labour Court dismissed the appeal.

The plaintiff then instituted summons action in this court against the defendant for payment of a total of US$120,643=28 broken down as $19,407=70 as net salary; $9,850=27 cash in lieu of ordinary leave; $42,531=21 cash in lieu of contract leave; and $48,854=10 cash in lieu of sabbatical leave.

In response to my query on jurisdiction, counsel for the plaintiff submitted something to the effect that the plaintiff was not bringing these proceedings to this court as a court of first instance but as a court reposed with inherent jurisdiction to determine matters which should have been determined by the Labour Court but which that court omitted to deal with. He could not say, assuming the matter was not coming to me as a court of first instance, in what form the matter had come especially in view of the fact that it was instituted by way of summons commencing action.

Counsel for the plaintiff submitted that the plaintiff had exhausted domestic remedies available to him in terms of the Code of Conduct and the Labour Act and was therefore entitled to make an approach to this court for quantification of his terminal benefits, which quantification is not provided for in the Labour Act.

He contradicted himself in submitting that when the Labour Court upheld the plaintiff's dismissal, it was obliged, in terms of section 89(2)(c) of the Labour Act, to make a finding in respect of the issues that have been placed before me, but the jurisdiction of the Labour Court, as set out in section 89(1), does not include the quantification of terminal benefits.

According to counsel for the plaintiff, where the Labour Court has failed to determine terminal benefits due to an employee, such employee is at liberty to approach this court seeking quantification because the Labour Court would be functus officio, and, therefore, unable to have a second bite at the cherry as it were.

The submissions made on behalf of the plaintiff regarding the existence or otherwise of jurisdiction are mind-boggling to say the least. The strain in one's mind becomes hazardous when the plaintiff's counsel, by the same breath, argues that, procedurally, the Labour Court is the ultimate court where the issues forming the subject of this dispute should be determined. It becomes extremely impossible to understand how the plaintiff could insist that this court should exercise jurisdiction.

Counsel for the defendant submitted that in order to arrive at a decision as to whether the amounts claimed by the plaintiff in respect of net salary and cash in lieu of ordinary leave this court has to interpret the specific provisions of the parties' contact of employment. In order to quantify what the plaintiff is claiming as cash in lieu of contract and sabbatical leave this court must engage in the interpretation of the “Midlands State University: Terms and Conditions of Service”. For those reasons, the dispute between the parties is a labour dispute where the Labour Court enjoys exclusive jurisdiction.

Counsel for the defendant made reference to section 13(1) of the Labour Act which deals with wages and benefits upon termination to illustrate the point that this is a labour dispute. It provides:-

“13 Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, whether any person -

(a) Is dismissed from employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacity or death, as the case may be, including benefits in respect to any outstanding vacation and notice period, medical aid, social security and any pension and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.”

It is therefore not in doubt that payment of wages and benefits, upon termination of an employment contract, is provided for in the Labour Act. Wages and benefits are entitlements of an employee in terms of the Labour Act.

That the Labour Court is a creature of statute constituted as a special court, in terms of section 84 of the Labour Act, to adjudicate over labour relations, is beyond doubt. Its powers and functions must be exercised in accordance with the four corners of the statute.

Section 89(1) of the Labour Act goes on to state:-

“The Labour Court shall exercise the following functions:-

(a) Hearing and determining applications and appeals in terms of this Act; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel of arbitrators referred to in subs (6) of section ninety-eight to hear and determine an application;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.”

Subsection (2)(c) of section 89 gives the Labour Court the power, in the exercise of its functions, to order back pay and compensation of an employee in the event of an unfair labour practice among other powers. It is instructive therefore to make reference to section 89(6) of the Labour Act which provides:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1)”.

This court has, in a number of cases, interpreted that ouster provision to mean that the Labour Court has jurisdiction in all matters where the cause of action and remedy for that are provided for in the Labour Act; Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H)…,.; DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…,.; Tuso v City of Harare 2004 (1) ZLR (H); Moyo v Gwindingwi N.O. & Anor HB168-11…,.; Jambwa v GMB HH124-13…,.

I am in agreement with the postulation of MAKARAU JP…, in Medical Investments Ltd v Pedzisai 2010 (1) ZLR 111 (H)…, that:

“In interpreting these two sections of the Act (i.e section 89(1) and section 89(6)), this court has, in the authorities I have cited above, held that the Labour Court has exclusive jurisdiction in all applications and matters that are not only defined but are determinable in terms of the Act. In other words, the Labour Court has jurisdiction in all matters where the cause of action and the remedy for that cause of action are all provided for in the Act.”

I have cited the provisions of section 13 of the Labour Act which entitle an employee to wages and benefits upon termination of the employment contract. In the event of a breach of those provisions the employee has remedies, including criminal prosecution against the employer. The employee may also bring an action in the Labour Court which, in terms of section 89(1), has power to hear and determine any application in terms of the Labour Act. In terms of section 89(2)(c) it can also make an order for back pay and other damages to be awarded to an employee.

Quite how these changes in the law to provide for the ouster of the jurisdiction of any other court, including this court, in those matters which fall under the purview of the Labour Court escaped the gaze of the plaintiff and his counsel is not easy to understand. What is certain, however, is that this court does not have jurisdiction to determine a dispute involving payment of wages and cash in lieu of any form of leave which are clearly provided for in the Labour Act, and, as such, should be determined by the Labour Court.

That is the present and indeed the future.

For counsel for the plaintiff to submit that I should exercise jurisdiction against this background is untenable. As they say; “You cannot fight against the future.”

I therefore decline jurisdiction as no doubt the plaintiff has taken a wrong turn in making an approach to this court when he should have had his matter determined by the Labour Court. After all, that court enjoys exclusivity.

In the result, the plaintiff's claim is hereby dismissed with costs.

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

The Labour Court does not have jurisdiction to grant a declaratory order which is granted in terms of section 14 of the High Court Act [Chapter 7:06] as follows:“14 High Court may determine future or contingent rightsThe High Court may, in its discretion, at the instance of any interested person, ...

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

This is an urgent chamber application for a mandatory interdict in which the following order is sought on an interim basis;-That the respondent be and is hereby ordered to furnish the applicant with the following information within forty-eight hours of this order being granted;1. A schedule detailing the applicant's back-pay ...

This is an urgent chamber application for a mandatory interdict in which the following order is sought on an interim basis;-

That the respondent be and is hereby ordered to furnish the applicant with the following information within forty-eight hours of this order being granted;

1. A schedule detailing the applicant's back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent's salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which the applicant shall resume his duties.

4. The date of payment of the applicant's back-pay and benefits.

5. The dates on and manner in which the applicant's salaries shall be paid from the 1^st of February 2016 until the applicant ceases to be entitled to a salary.

The final order sought is for the respondent to show cause why a final order should not be made on the following terms;-

The respondent be and is hereby ordered;

6. To immediately furnish the applicant with all information regarding and relevant to the applicant's employment contract and conditions of service when requested to do so.

7. To fully comply with the judgments of the Labour Court handed down on 6 February 2008 and 22 January 2016 within two weeks of this order being granted failing which the Director General (Chief Executive Officer) of the respondent shall be committed to gaol for a period of three months for contempt of court.

8. To pay costs of suit on a legal practitioner and client scale.

The applicant is the holder of a doctorate in Engineering Science and the respondent (SIRDAC) is a university situated in Hatcliffe, Harare. The background to this application, as set out in the founding affidavit, is that the applicant was employed by the respondent from the year 2000 to 22 March 2005 as the director of the Building Technology Institute (BTI) of the respondent. The Labour Court made a finding, on the 6^th of February 2008, that the respondent's dismissal of the applicant was unlawful. The respondent was ordered to reinstate the applicant with effect from 22 March 2005, the date of dismissal, without loss of salary or benefits.

The applicant alleges that the respondent has failed to comply with this judgment by failing to reinstate him or to pay him his full salary or benefits, or even to pay him damages in lieu of reinstatement in the alternative.

The applicant instituted proceedings in HC4544-08 for an order of contempt to be made against the respondent's Director General. The respondent, in response to that application, purported to 'reinstate' the applicant by way of a letter dated 26 September 2008. The letter was delivered to the applicant on the 7^th of October 2008.

It is common cause that, despite the letter of re-instatement, the respondent has not paid the applicant his salary or benefits, and that, the applicant has not re-joined the respondent's staff to date.

On 26 June 2009, the respondent terminated the applicant's employment by way of a letter. The applicant challenged this termination by way of an application for review before the Labour Court, which granted judgment in his favour on the 22^nd of January 2016…,. That judgment was done by two Labour Court Judges. They alluded to the judgment done by the same court on 6 February 2008 in which an order was made that the applicant be reinstated with full benefits, or, alternatively, be paid damages in lieu of reinstatement. The Labour Court found that the parties should go back to the original order of 6 February 2008 and allowed the application for review, setting aside the decision of the disciplinary committee of 26 June 2009.

The applicant requires information pertaining to his salary arrears in order to prepare an application for damages in lieu of reinstatement. This information is in the possession of the respondent who is being un-cooperative. The applicant is afraid that the respondent will continue to ignore the orders of the Labour Court with impunity. Letters written to the respondent on 22 January 2016 and 3 February 2016 have gone un-answered.

The applicant is of the view that he has no other remedy than to approach this court, on an urgent basis, because he is wallowing in poverty whilst the respondent remains in contempt of the Labour Court orders.

At the hearing of the matter, the respondent took the stance that this matter was not urgent because the requirements of urgency were not met on the papers, and that the application was devoid of merit because the requirements of a mandatory interdict were again not established….,.

It is my considered view that the question of jurisdiction ought to be settled before a decision is made as to whether or not the applicants satisfied the requirements of urgency and then the merits of the matter can be ventilated….,.

It is trite that only this court can grant a mandatory interdict. Such an interdict will compel the respondent to supply the information required by the applicant in order to utilize his remedy in the Labour Court, that of seeking payment of arrear salaries and damages in lieu of reinstatement. See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & OrsSC08-05, where the following guidance was given;-

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals among others that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law, or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction being special must prevail. It would make a mockery of the clear intention of the Legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”…,.

This case was decided in 2005, before the advent of the current Constitution, and it would be interesting to see if the Supreme Court's guidance remains the same when the provisions of section 171(1)(a) are taken into consideration.

For purposes of determining whether an application for an interdict ought to be dealt with by this court because it is a common law remedy which the Labour Court has no power to grant, this case is indeed instructive. See also DHL International (Private) Limited v Madzikanda HH51-10; Surface Investments (Private) Limited v Maurice Chinyani HH295-14.

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

Section 10 of Part 4 of the Sixth Schedule of the current Constitution (saving and transitional provisions) provides that all existing laws will continue in force but must be construed in conformity with the Constitution.In my view, this means that any inconsistency between the current Constitution and an existing law ...

In my view, this means that any inconsistency between the current Constitution and an existing law must be resolved in favour of conformity with the Constitution.

This renders section 89(6) of the Labour Act void to the extent of its inconsistency with section 171(1)(a) of the current Constitution. The inescapable conclusion is that the High Court now has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance.

It is up to the High Court to decline to exercise that concurrent jurisdiction as a way of preserving and respecting the specialized nature of the Labour Court until the Legislature harmonises section 89(6) of the Labour Act with section 171(1)(a) of the current Constitution.

It is my view that as things currently stand the argument that the High Court has no jurisdiction to hear purely labour matters, at first instance, is not sustainable.

It is my considered view that the High Court, being a creature of inherent jurisdiction, by implication, can decline to exercise its jurisdiction in favor of a litigant for any reason that it deems fit in the interests of justice. I see no reason why jurisdiction over purely labour matters, at first instance, in some circumstances, cannot be declined on the basis that there is a specialized court which exercises concurrent jurisdiction and that is where the litigant ought to go.

In cases where litigation has already been commenced initially before the Labour Court, it is undesirable for this court to exercise jurisdiction over the same matter as this will promote forum shopping and will be detrimental to the administration of justice in the long run….,.

The question that arose during the course of argument was whether, in terms of section 171(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013, the High Court now has jurisdiction as a court of first instance to deal with purely labour matters. The applicant's contention was that this was not a purely labour matter, the application was for a mandatory interdict which the Labour Court cannot grant…,.

Section 171(1)(a) of the current Constitution provides that;

“171 Jurisdiction of High Court

(1) The High Court -

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b) Has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;

(c)…,.

(d)…,.”

Section 171(2) of the Constitution stipulates that;-

“(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,.

(4)…,.”

The wording of section 171(1)(a) has given rise to a new school of thought that these provisions of the current Constitution have restored the jurisdiction of the High Court over purely labour matters at first instance. Section 89(6) of the Labour Act [Chapter 28:01] provides that;-

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

The provisions of section 172(2) of the current Constitution provide, in relation to the jurisdiction of the Labour Court;-

“172 Labour Court

(1)…,.

(a)…,.

(b)…,.

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

(3)…,.”

Section 172(2) confers such jurisdiction on the Labour Court as may be found in the Labour Act.

The current Labour Act, to the extent that section 89(6) is now inconsistent with section 171(1)a) of the Constitution, requires express re-alignment with the Constitution by the Legislature. While we wait for its re-alignment with the Constitution, the Labour Act no longer confers exclusive jurisdiction on the Labour Court over purely labour matters at first instance.

The High Court, having always had inherent jurisdiction which had been expressly ousted by section 89(6) of the Labour Act from dealing with purely labour matters at first instance, now has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance.

This is undesirable, not merely because the High Court is likely to be inundated with labour matters at a time when it is grappling with backlog of cases, but because the Labour Court was expressly created to provide a streamlined, faster, and cheaper remedy to both employers and employees, at first instance, in purely labour matters. The intention of the Legislature in setting up the Labour Court was to create a specialized court to deal with such matters at first instance. That intention will be circumvented if the current situation is not rectified soon - that of concurrent jurisdiction with the High Court.

Section 10 of Part 4 of the Sixth Schedule of the current Constitution provides that;-

“10. Continuation of existing laws

Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution.”

In my view, this means that any inconsistency between the current Constitution and an existing law must be resolved in favour of conformity with the Constitution. This renders section 89(6) of the Labour Act void to the extent of its inconsistency with section 171(1)(a) of the current Constitution.

The inescapable conclusion is that the High Court now has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance. It is up to the High Court to decline to exercise that concurrent jurisdiction as a way of preserving the specialized nature of the Labour Court until the Legislature harmonises section 89(6) the Labour Act with section 171(1)(a) of the current Constitution. It is my view that as things currently stand the argument that the High Court has no jurisdiction to hear purely labour matters at first instance is not sustainable.

I hold in this view, which I have previously expressed in the following cases:- Innocent Chitiki v Pan African MiningHH656-15; G Chiparaushe & 66 Ors v Triangle Limited and Triangle Staff Pension FundHH196-15. Other cases in which a similar view was expressed are:- Christmas Mazarire v Old Mutual Shared ServicesHH187-14; Capri v Maponga HH92-15.

I found my brother judges views in CZI v MbathaHH25-15 persuasive, that;

“…, to the extent that the Constitution overrides any Act of Parliament, there can be no doubt that section 171(1)(a) overrides section 89(6) of the Labour Act. What this means is that by clear Constitutional provision this Court has original jurisdiction over all matters including those of a labour nature whereas prior to the new Constitutional order the Labour Court enjoyed exclusivity.”

The submission made on behalf of the respondent, that section 172 of the current Constitution should be read together with section 170 and section 171, in the interests of achieving 'dis-ambiguity', was not persuasive to me.

Clearly, section 172(2) confers such jurisdiction on the Labour Court as may be conferred on it by an Act of Parliament, for which we read the Labour Act. It was submitted that a proper reading of section 172(2) will show that the Labour Court derives its jurisdiction from section 172(2) and not from section 89(6) of the Labour Act.

With all due respect to counsel for the respondent, such a chicken and egg approach is most unhelpful and will not resolve the issue in favor of restoring the exclusivity of the Labour Court in purely labour matters at first instance. I am grateful to counsel for the respondent for the guidance given in the heads of argument with regards to the cannons of statutory interpretation;- re - Interpretation of Statutes,LAURENS du PLESSIS, Butterworths, 2007…,.;

“To determine the purpose of the legislature it is necessary to have regard to the Act as a whole and not to focus on a single provision to the exclusion of all others. To treat a single provision as decisive…, might obviously result in a wholly wrong conclusion.”

And Cox v Hales1890 (15) App 509, where the court said that;

“It is right for a court not only to look only at the provision immediately under the Constitution but any other which may throw light upon it and afford an indication that general words employed in it were not intended to be applied without some limitation.”

Madoda v Tanganda Tea Company Ltd1999 (1) ZLR 374…,.;-

“By adopting that approach to the interpretation section 7 of the Code the learned judge in the court a quo departed from the ordinary grammatical meaning of the section, and, therefore, erred. As Joubert JA said in Coopers & Lybrand & Ors v Byrant 1999 (3) SA 761 (A) at 767 D-F;

'The matter is essentially one of interpretation. I proceed to ascertain the common intention of the parties from the language used in the instrument. Various cannons of the Constitution are available to ascertain their common intention at the time of concluding the cession. According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnance or inconsistency with the rest of the instrument.'”

The same view was subsequently expressed by my brother McNALLY in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S)…, where he said;

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Perason (1857) 10 ER 1216 at 1234 'unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency - but no further.'”

I find the wording of section 172(2) of the Constitution to be clear and unambiguous.

The jurisdiction of the Labour Court is set out in the Labour Act. It is accepted that the Constitution confers jurisdiction on the Labour Court in matters of labour and employment but such jurisdiction cannot be exclusive as long as section 89(6) of the Labour Act is inconsistent with section 171(1)(a) of the Constitution which clothes the High Court with jurisdiction over ALL civil and criminal matters. That includes labour matters, unfortunately. No other interpretation will do. Even the cannons of statutory interpretation cannot save the previous exclusive jurisdiction over purely labour matters, at first instance, of the Labour Court.

Jurisdiction over pure labour matters, at first instance, is now shared - it is concurrent between the two courts because the High Court's jurisdiction is no longer ousted by section 89(6) of the Labour Act.

I cannot accept the submission made on behalf of the respondent that section 89(6) of the Labour Act remains valid because it was enacted in terms of section 172(3) of the current Constitution.

That, in my view, has no bearing on the question of the inconsistency of section 89(6) of the Labour Act with section 171(1)(a) of the Constitution. It is my considered view that the High Court, being a creature of inherent jurisdiction, by implication, can decline to exercise this concurrent jurisdiction in favour of a litigant for any reason that it deems fit in the interests of justice. I see no reason why jurisdiction over purely labour matters, at first instance, cannot be declined on the basis that there is a specialized court which exercises concurrent jurisdiction and that is where the litigant ought to go.

In determining this question of concurrent jurisdiction over purely labour matters at first instance, I did not find the remarks of my brother Judge in the case of Fortunate Chikoyo v Richard Ndlovu, Charles Simbi, Chief Elections Officer & Registrar of Voters HH321-14 instructive for the simple reason that the facts of that case are distinguishable for two reasons;

(i) Firstly, the jurisdiction in question was not original inherent jurisdiction of this court versus jurisdiction conferred on an inferior court which is governed by statute. The jurisdiction of the Electoral Court was in terms of appeals and reviews. In my view, the provisions of the Electoral Act which the respondent seeks to be compared to the provisions of section 89(6) the Labour Act are different.

One provision confers exclusive original jurisdiction, the other review or appeal jurisdiction.

The remarks made in a case where what was in comparison was the original jurisdiction of the general division of this court and a special division, the Electoral Court, of this same court, are surely distinguishable from the relationship or jurisdiction disparity between this court and an inferior court which does not enjoy inherent jurisdiction….,.

In National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & OrsSC08-05, the following guidance was given;-

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals among others that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law, or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction being special must prevail. It would make a mockery of the clear intention of the Legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”…,.

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

The new Constitution of Zimbabwe has restored the jurisdiction of the High Court over purely labour matters at first instance. The Labour Court's exclusive jurisdiction over all purely labour matters at first instance has been overridden by the Constitution.The plaintiff issued summons on 25 March 2011 for the payment of ...

The plaintiff issued summons on 25 March 2011 for the payment of a sum of USD$8,936=56, being the balance due to him from the defendant in terms of an agreed early retirement package. The defendant adopted the stance that it had paid all the amounts due to the plaintiff in terms of the parties' agreement.

The issue that the court must determine is whether the amounts paid to the plaintiff by the defendant for October, November and December 2010 constituted notice pay in terms of the early retirement package; and whether the additional payment of cash in lieu of leave and other benefits paid during October -December 2010 also formed part of the early retirement package. If they did not, then the plaintiff's claim must succeed.

The court directed the parties to address it on whether this was a purely labour matter, and, if it was, whether this court's jurisdiction was ousted by the terms of the Labour Act [Chapter 28:01].

I am grateful for the submissions made by both counsel for the defendant and counsel for the plaintiff, which provided great assistance to the court in resolving this issue.

Section 171(1)(a) of the Constitution of Zimbabwe,Constitution of Zimbabwe Amendment (No.20) Act, 2013 provides that;

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Section 89(6) of the Labour Act [Chapter 28:01] provides that:

“89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions —

…,.

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

The import of the provisions of section 171(1)(a) of the current Constitution is to reinstate the jurisdiction of this court over labour matters at first instance, which jurisdiction had previously been ousted by section 89(6) of the Labour Act. See Confederation of Zimbabwe Industries v Rita Marque MbathaHH125-15 and Capri (Pvt) Ltd v Maponga HH92-15.

It is an inescapable conclusion that the Labour Court no longer enjoys exclusive jurisdiction over labour matters at first instance. That exclusitivity, which was based on an Act of Parliament, was overridden by the Constitution. It is therefore no longer necessary to consider whether a matter is purely labour at first instance before assuming jurisdiction to determine it.

Counsel for the plaintiff submitted that, in any event, the facts do not support the supposition that this is a 'purely' labour matter, a fact which would have allowed this court to 'assume jurisdiction' over it before the provisions of section 171(1)(a) of the current Constitution came into force.

I found this submission persuasive, taking into consideration previous findings of this court that agreements which emanate from contracts of labour (where the cause of action and the remedy for that cause of action are at common law) are enforceable on the basis that they are not 'purely labour' matters which this court was previously precluded from hearing at first instance. See Arnold Sikhumbuzo Mahlangu v CZL Incorporated (Pvt) LtdHH27-13; Madinda Ndlovu vHighlanders Football ClubHB95-11 and Medical Investments Limited v Pedzisayi 2012 (1) ZLR 111…,.

Having concluded that the court was cloaked with the requisite jurisdiction to determine the matter, trial commenced.

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

Should our courts be courts of law or courts of justice?One would presuppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and ...

View Appeal
HH108-11 : GIFT BOB SAMANYAU and THIRTY EIGHT OTHERS vs FLEXIMAIL (PRIVATE) LIMITED
Ruled By: MUTEMA J

This matter has trudged a long and tortuous journey.The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants ...

This matter has trudged a long and tortuous journey.

The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants on 5 July 2007 and ordered their reinstatement, alternatively, payment of damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008 equivalent to 5 years salary using the cut off date of 5 July 2007 and tendered them to the applicants.

The tender, dated 11 February 2009 from the respondent's legal practitioners addressed to the applicants' erstwhile legal practitioners, Mwonzora & Associates, reads:

“RE: L MAWERE AND OTHERS v FLEXMAIL: QUANTIFICATION OF DAMAGES

In line with the judgment of the Labour Court handed down on 10 December 2008, please find herewith our client's cheque in the sum of $12,594=77 (revalued) in full settlement of the amounts due to your clients. A copy of the schedule as to how the various figures were arrived at is attached hereto.

You will note from the computation that the amounts have been revalued and inflation adjusted to February 2009.

The matter is accordingly closed…,.”

The applicants, through their then legal practitioners mentioned above rejected the tender and returned the cheque in question. The attempt at payment was tendered after breakdown of quantification negotiations. The primary reason for rejecting the tender was that the respondent attempted to pay the damages in Zimbabwe dollars in February 2009 when the currency had become moribund.

In their amended draft order the applicants are seeking a declaratory order in the following terms:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States Dollars using the initial United States Dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.

2. That the respondent pay the costs of suit.”

The main thrust of the applicants' argument, as gleaned from the founding affidavit and heads of argument, is as follows:

The applicants have approached this court, since it is the only court with inherent jurisdiction, seeking a declaratur that the principle of currency nominalism has no place in Labour Law (a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. Further, they seek a declaration to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is in an amount, currency, and quantity that achieves fairness as required by the Labour Act. The applicants further seek an order compelling the respondent to pay damages in United States dollars using the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency i.e. in February 2009. A successful appellant, so the argument went, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him/her/ it for the loss as well as fulfil the objectives of the Labour Act.

Interpreting the order of the Labour Court to mean payment in Zimbabwe dollars would amount to making the order a brutum fulmen because the Zimbabwe dollar, by the time of the tender, had became de facto valueless and useless, this would amount to non-payment thereby reducing court orders into empty judgments which is both unfair and against public policy.

The respondent's opposition was premised on the following main planks:

1. The matter is res judicata in that the Labour Court handed down judgment in case number LC/H/15/06 ordering the respondent to either reinstate the applicants or pay damages in lieu thereof. Following quantification of such damages, the amount due and payable was duly remitted to the applicants. In the event, this application disguised as an “application for a declaratory order” is merely meant to deal with the same issues which were concluded by the Labour Court.

2. The issue brought before this court is an employment/labour issue and by virtue of section 89(6) of the Labour Act [Chapter 28:01], the jurisdiction of this court is ousted.

3. What the applicants are asking this court to do is to:

3.1 Ignore the salaries payable to the applicants as at 5 July 2007 when an order of reinstatement was made by the Labour Court.

3.2 Depart from the current position of law and order payment of damages based on a date after the order of reinstatement was made.

3.3 Ignore the lawful currency that governed the contractual relationship between the parties as at 5 July 2007 (which required payment of salaries in Zimbabwe dollars) and set aside that trite position to enable the applicants to be paid afresh damages in lieu of reinstatement in US dollars. This is despite the fact that, as at 5 July 2007, the applicants' employment contracts entitled them to remuneration in Zimbabwe dollars and not in US dollars sought by the applicants.

4. The issues raised by the applicants have been dealt with by the courts on many occasions and are not unique to the applicants.

I am mindful of the fact that what the applicants are inviting this court to do, as submitted by counsel for the respondent, boils down to two pertinent issues, viz:

1. To do that which Parliament should, i.e. to make law by repealing the common law principle of currency nominalism; and

2. To “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension. See Redstar Wholesalers v E Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi 2000 (1) ZLR 325 (S).

Points 3 and 4 of the respondent's opposition cited above are interwoven with point 2 cited immediately above so I shall deal with them pari passu…,. First, let me deal with points one and two of that opposition quoted above. They allude to the issue of res judicata and ousting of this court's jurisdiction by virtue of section 89(6) of the Labour Act....,.

Regarding the issue that this court's jurisdiction is ousted by section 89(6) of the Labour Act [Chapter 28:01], I am unable to subscribe to this view. The subsection cited provides that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1)”.

Subsection (1) has six paragraphs listing the functions to be exercised by that court to the exclusion of all other courts. Those functions do not include issuing declaratory orders. This meant that the Labour Court has no inherent jurisdiction to issue declaratory orders, and, in the event, the jurisdiction of the High Court remains intact.

In Sibanda & Anor v Chinemute NO & Anor HH131-04, MAKARAU JP…, put it aptly thus:

“Thus, the power to issue a declaratory order is not available in all courts that apply common law. It is specific to this court…,.

It is common cause that the Labour Court has not been specifically empowered to issue declaratory orders as this court has been. It cannot create such a relief or the procedure for granting such relief as it is not a court of inherent jurisdiction.”

I am in respectful agreement with this view.

HH93-18 : CHITUNGWIZA MUNICIPALITY vs MAXWELL KARENYI
Ruled By: TAGU J

The applicant seeks an order of rei vindicatio. It seeks recovery of its property, namely, motor vehicle, a Toyota Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung Galaxy S5, and a Samsung Tablet 4 presently in the possession of the respondent without the applicant's consent.The circumstances are ...

The circumstances are that the respondent was employed by the applicant as a Director of Works in terms of a written contract. The respondent gave notice of his intention to resign from the applicant's employment. He indeed resigned on the 18^thofDecember 2017. During the term of his employment the respondent was issued with a motor vehicle and other gadgets for use in the performance of his duties. Upon resignation, the respondent remained in possession of the vehicle and the gadgets. Despite the termination of his employment the vehicle and the gadgets remained registered in the names of the applicant. The applicant requested the respondent to surrender the motor vehicle and other gadgets that were issued to the respondent during the course of his employment. The respondent, despite lawful demand, declined to return the property in question prompting the applicant to file a police report at ZRP St Marys CR68/01/18, CID Chitungwiza DR17/1/18. The docket was referred to the Prosecutor General who declined to prosecute holding that the dispute was civil.

This prompted the applicant to file this urgent chamber application for rei vindicatio.

The respondent opposed the application. He raised three points in limine in his Notice of Opposition which he thought could dispose of this matter which can be summarized as follows -

(a) The application is frivolous and vexatious;

(b) The application is not urgent;

(d) That the High Court has no jurisdiction to hear this matter....,.

JURISDICTION OF THE HIGH COURT

The long and short of the respondent's submission was that the present matter relates to benefits which he is entitled to on the termination of his contract of employment hence the Labour Court has exclusive jurisdiction over this matter. In light of the above this court does not have jurisdiction to deal with the present matter hence the matter ought to be dismissed with costs. The respondent said the High Court declined jurisdiction in the case of Telone (Private) Limited v Edwin Matinyarare HH140-13.

In opposition to the submissions, the applicant referred the court to the case of Joram Nyahora v CFI Holdings (Private) Limited SC81-14…, where the Supreme Court had occasion to deal with a similar issue….,; the Supreme Court, in the above matter, said -

“As submitted on behalf of the respondent, the right of an individual to approach the High Court seeking relief, other than that specifically set out in section 89(1)(a) of the Act, has not been abrogated. Nothing in section 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of Civil Law, except in respect of those applications and appeals that are specifically provided for in the Labour Act. Nor is there contained in section 89 any provision expressly authorizing the Labour Court to deal with an application, such as in the instant case, for the common law remedy of rei vindicatio. Such applications fall squarely within the jurisdiction of the High Court.”

I cannot do any better other than to hold that this court has jurisdiction to hear this matter.

While the High Court declined jurisdiction in the case of Telone (Private) Limited v Edwin Matinyarare HH140-13, in my view, this judgment is persuasive but not as binding on me as the Supreme Court one.

See also Surface Investments (Private) Limited v Maurice Chinyani HH295-14; Zimbabwe Broadcasting Holdings v Gono ZLR 2010 (1) ZLR 8; Zimbabwe Educational Scientific Social And Cultural Workers Union v Claud Kaharo HH222-11; and Gloria Rumbidzai Mkombachoto v Commercial Bank of Zimbabwe Limited and The Registrar of Deeds HH10-02.

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE
Ruled By: MATHONSI J

The defendant was employed by the plaintiff as a driver attached to the Advisor to the Governor. He was issued with a Toyota Vigo motor vehicle registration number ABD7870 belonging to the employer for use in the discharge of his duties. He was retrenched from employment in January 2011 in ...

The plaintiff has sued the defendant seeking an order directing him to return the Toyota Vigo motor vehicle he is holding on to and damages for unlawful use of the said vehicle.

He initially took a point in limine that the dispute involving the motor vehicle is a labour one in which this court has no jurisdiction. Counsel for the defendant abandoned that point in limine, correctly in my view, on the basis that it was not well taken given that the plaintiff's cause of action is the actio rei vindicatio, a purely civil remedy in which this court's jurisdiction has not been ousted by section 89(6) of the Labour Act [Chapter 28:01].

The defendant has counter claimed seeking payment of $19,312=80 being unpaid retrenchment package and delivery of the registration book of the motor vehicle he claims is part of his retrenchment package.

The plaintiff objected to the defendant's counter-claim on the basis that it is, in essence, a labour dispute which should be determined by the Labour Court enjoying exclusive jurisdiction by virtue of the ouster provision contained in section 89(6) of the Labour Act. Counsel for the plaintiff submitted that as the defendant's claim is for payment of a retrenchment package, which is provided for in section 13(1)(b) and section 13(2) of the Labour Act [Chapter 28:01], this court's jurisdiction has been ousted by section 89(6). It is the Labour Court which enjoys jurisdiction exclusively.

Counsel for the defendant submitted that this court should exercise jurisdiction because in the counterclaim the defendant is seeking to enforce a civil debt. The fact that the debt arose out of an employment relationship is irrelevant. He maintained that the Labour Court has no jurisdiction to hear and determine civil disputes, the disposition of which does not involve the application of Employment Law expressly provided for by statute. It was strongly argued, on behalf of the defendant, that the right of an individual to approach this court seeking relief other than that specifically set out in the Labour Act remains as section 89(6) does not take away the right for civil relief premised on purely Civil Law principles.

Section 89(6) of the Labour Act [Chapter 28:01] provides;

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

Section 89(1) of the Labour Act [Chapter 28:01] states that:

“The Labour Court shall exercise the following functions:

(a) Hearing and determining applications and appeals in terms of this Act; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a Labour Officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel in subs (6) of section ninety-eight to hear and determine an application;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.”

The procedure for retrenchment of employees is provided for in section 12C of the Labour Act. Section 13 provides:

“Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, where any person -

(a) Is dismissed from employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacity or death, as the case may be, including benefits in respect of any outstanding vacation and notice period, medical aid, social security and any pension and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.

(1a) Wages and benefits payable to any person or to his or her estate in terms of this section shall not form part of or be construed as a retrenchment package which an employee is entitled to where his or her employment has been terminated as a result of retrenchment in terms of section 12C.

(2) Any employer who, without the Minister's permission, withholds or unreasonably delays the payment of any wages or benefits owed in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or both such imprisonment.”

In his supplementary heads of argument, counsel for the plaintiff conceded that section 13 of the Labour Act specifically excludes retrenchment packages which is included as an unfair labour practice by virtue of the all-embracing section 8(e)(iv) of the Labour Act, which provides that an employer commits an unfair labour practice if he fails to comply with a determination or direction which is binding upon him in terms of the Labour Act.

It is clear that a retrenchment package is provided for in the Labour Act. It is an entitlement of an employee whose employment is terminated in terms of section 12C of the Labour Act. Where an employer does not pay a retrenchment package or delays making payment, an employee has a remedy - including criminal sanction. Indeed, failure to pay constitutes an unfair labour practice. There are remedies available for unfair labour practices.

I find myself having to repeat what was stated in Matongo v Midlands State University HH174-13…, that:

“This court has, in a number of cases, interpreted that ouster provision to mean that the Labour Court has jurisdiction in all matters where the cause of action and remedy for that are provided for in the Act; Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) 114 C; DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 204 A; Tuso v City of Harare 2004 (1) ZLR 1 (H); Moyo v Gwindingwi N.O. & Anor HB168-11 at pp 5-6 (now reported in 2011 (2) ZLR 368); Jambwa v GMB HH124-13 at p4;

I am in agreement with the postulation of MAKARAU JP (as she then was) in Medical Investment Ltd v Pedzisayi (supra) at 114 C that:

'In interpreting these two sections of the Act (i.e. section 89(1) and section 89(6)) this court has, in the authorities I have cited above, held that the Labour Court has exclusive jurisdiction in all applications and matters that are not only defined but are determinable in terms of the Act. In other words, the Labour Court has jurisdiction in all matters where the cause of action and the remedy for that cause of action are all provided for in this Act.'

I have cited the provisions of section 13 of the Act which entitle an employee to wages and benefits upon termination of the employment contract. In the event of a breach of those provisions the employee has remedies, including criminal prosecution, against the employer.”

In Chiwundo v Zimbabwe National Family Planning Council HH212-13…, I made the point:

“To the extent that the applicant was entitled to appeal all the way to the Labour Court, it means that the substance of this application is, in essence, a labour dispute disguised as an application for a declarator. Section 89(6) of the Labour Act [Cap 28:01] has ousted the jurisdiction of all other courts, in the first instance, to hear and determine any application, appeal or matter falling under the jurisdiction of the Labour Court. The present dispute clearly falls under the ouster provisions as it should be determined by the Labour Court.”

See also William Bain & Company Holdings (Pvt) Ltd v Nyamukunda HH309-13.

In my view, the defendant's cause of action, being the non-payment of a retrenchment package, is found in the Labour Act. His remedy is also located in that Act. For that reason, the jurisdiction of this court has been ousted by section 89(6) of the Labour Act. It matters not that the package was agreed between the parties. In fact, it was approved by the relevant authorities, namely, the Works Council and the Minister of Public Service, Labour and Social Welfare. This court will still not exercise jurisdiction.

1. The plaintiff's point in limine is hereby upheld.

2. Jurisdiction in respect of the defendant's counter claim is declined.

3. The matter shall proceed to trial in respect of the plaintiff's claim.

4. The issue of costs is reserved until the end of trial.

HH140-13 : TELONE (PRIVATE) LIMITED vs EDWIN MATINYARARE
Ruled By: MAKONI J

The respondent was employed by the applicant as Head Administration. As part of his employment benefits he was allocated a motor vehicle for his duties, namely, a Toyota Hilux registration number ABD 8617 (the vehicle).On 3 June 2011, the applicant terminated the respondent's contract of employment following disciplinary proceedings in ...

On 3 June 2011, the applicant terminated the respondent's contract of employment following disciplinary proceedings in terms of the National Code of Conduct. When the respondent was on suspension he was allowed to use the vehicle. The respondent challenged the dismissal by noting an appeal to the Labour Relations Office. The matter is still pending.

The applicant then instituted the present proceedings seeking to recover the vehicle from the respondent. The basis for seeking such relief is that the respondent does not have any lawful basis for holding on to the applicant's vehicle. His entitlement to the vehicle, like any other benefits, ceased as a consequence of the termination of his employment. It was also averred that by holding onto the vehicle, the respondent is contravening section 57 of the Road Traffic Act [Chapter 13:11].

The application is opposed mainly on three grounds.

(i) The first ground is that this court has no jurisdiction to entertain an application of this nature. The matter is pending before the Labour Court and the applicant ought to have followed that route.

(ii) The second ground is that the noting of an appeal suspends the decision appealed against.

(iii) The third ground is that he is entitled to continue to use the vehicle as the terms of his suspension allowed him to use the vehicle pending the determination of the matter.

JURISDICTION

It was submitted on behalf of the applicant that the present claim is based under the common law principle of rei vindicatio. There is no provision, in terms of the Labour Court Act [Chapter 28:01] which allows it to deal with such an issue.

It was further submitted that the decisions in Zimtrade v Marlord Makaya 2005 (1) ZLR 427 (H); Medical Investments Limited v Rumbidzayi Pedzisayi HH26-10; and DHL v Madzikanda HH51-10 were patently wrong and that this court was at large to depart from them.

It was contended that if there was a labour dispute between the parties, but the relief being sought cannot be granted by the Labour Court, as in the case of rei vindication, the High Court exercises jurisdiction. This would constitute an answer to the position adopted by MAKARAU JP in the three cases referred to above. The un-intended consequence of the position in these three cases is that it leaves a dispute without an adjudicating authority.

It was further contended that when an employee is dismissed, the employer-employee relationship ceases to exist. The relationship can only be salvaged by a lawful order reinstating the employee. Where there is no such relationship then the rules of Labour Law do not apply. The parties will then have to be guided by the operation of common law which is properly administered by courts of inherent jurisdiction such as this court.

The respondent contends that this court has no jurisdiction to entertain this matter and relies on the authority of the three cases referred to by the applicant.

It is common cause that the respondent acquired or possessed the vehicle by virtue of an employment contract. The contract was terminated. The respondent is challenging the termination of the contract.

The issue for me would be whether the issue of vindication of the vehicle can be determined without directly dealing with the rights of the parties on the issue of termination of the contract of employment.

The answer, in my view, is to be found in DHL v Madzikanda HH51-10…, where MAKARAU JP…, in reference to her other judgment in Zimtrade v Marlord Makaya 2005 (1) ZLR 427 (H) stated:-

“In that matter, which was unopposed, I declined jurisdiction. My reasoning in that matter was, firstly, that the Labour Court has exclusive jurisdiction in matters relating to suspensions from employment and termination of employment. Secondly, I reasoned that the possession of the employer's property by an employee, in terms of the contract of employment, is so inter-dependently linked to the contract that one cannot decide on one without deciding on the other.

In the result, because the Labour Court has exclusive jurisdiction over the one, it follows that it also has exclusive jurisdiction over the other. The conditions of service of an employee are simply the terms upon which that employee is employed and to try and separate the contract from its terms upon which that employee is employed and to try and separate the contract from its terms appears to me legally untenable, and, in any event, highly untenable.”

I associate myself fully with the above sentiments.

The relief that the applicant seeks in this matter is premised on the final outcome of the labour dispute. That dispute has not been exhaustively and decisively determined by the appropriate court. MAKARAU JP…, in DHL v Madzikanda HH51-10 dealt with the issue why the Labour Court is the appropriate forum….,. She said:-

“Where, however, a dispute can either found a cause of action at common law or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Act.

In my view, in such a case, the Labour Court's jurisdiction, being special, must prevail. It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”

I will therefore find that this court has no jurisdiction to grant the relief that the applicant seeks. I will adopt the procedure adopted by MAKARAU JP…, by proceeding to determine the matter on the merits on the assumption that I might have erred.

The facts of this matter are almost on all fours with those in DHL v Madzikanda HH51-10 where MAKARAU JP…, made a finding that the status of the respondent in that matter had not been finally determined as it was pending before the Labour Court and that the respondent has successfully discharged the onus on him to prove the right to possess the vehicle pending the determination of the appeal that was pending before the Labour Court.

The respondent, in casu, has discharged the onus on him to establish the defence of claim of right. In effect, the applicant has not advanced any arguments on that issue. If I had jurisdiction in this matter I would have found for the respondent.

The last issue is whether the noting of an appeal to the Labour Court suspends the decision appealed against in view of the provision of section 92E of the Labour Act [Chapter 28:01].

It was contended, for the applicant, that an appeal in terms of section 92(E) of the Labour Act does not suspend the decision appealed against. Any action taken after dismissal is valid even if the dismissal is later overturned. The employer is at liberty to hire another employee. That is why there is section 89(2)(c) of the Labour Act which allows a court ordering re-instatement to specify an alternative for damages in lieu of reinstatement.

That an appeal filed in terms of section 92E of the Labour Act does not suspend the decision appealed against is settled. The employee is regarded as dismissed pending the determination of the appeal. MAKARAU JP…, in DHL v Madzikanda HH51-10…, dealt with the issue in this way;

“It however appears to me that the provisions of section 92E of the Act have no effect on the claim of right that the respondent is raising at common law. Where the law regards the respondent as dismissed he has never accepted that position and is challenging his purported dismissal before the Labour Court. For as long as his challenge is alive and not fully determined, his claim of right remains alive with it. It is only when his challenge is invalidated at law that he loses the basis for his claim of right. The claim that the respondent has is not, in my view, dependent upon whether the law regards him as an employee or not rather it is dependent upon whether or not the dispute between the parties has been definitively resolved.”

In casu, the dispute between the parties has not been exhaustively and definitively determined. The respondent's defence of claim of right is still alive. The applicant can only approach this court after the appeal has been determined. Assuming I had jurisdiction, I would have dismissed the application on the basis that it is premature.

In view of the above findings I will make the following order:

1. The application is dismissed.

2. The applicant to pay the respondent's costs.

HH309-13 : WILLIAM BAIN & COMPANY HOLDINGS (PRIVATE) LIMITED vs AMON NYAMUKUNDA
Ruled By: MATHONSI J

The applicant and the respondent enjoyed an employer-employee relationship for a period of 16 years; the respondent having been taken in initially as a low level employee, but, to his credit, rising through the ranks to the position of Branch Manager for Marondera.At some stage during the period of employment, ...

At some stage during the period of employment, the respondent was issued with the employer's Ford Ranger 1800 pick-up registration number AAO 4838 for use although initially he was not entitled to it. When he was promoted to Branch Manager, it was a condition of employment that he be allocated a vehicle, and, therefore, held the vehicle as part of his conditions of service. In addition, he was also allocated a company house, being No.1088 Fairview Crescent, Winston Park, Marondera at a nominal rental of US$20 per month deducted from his salary.

On 16 May 2011, the respondent resigned from employment, and, in his letter of resignation of that date, he requested to purchase the motor vehicle that he was using. The applicant refused to sell the motor vehicle to him and demanded that he surrenders it and also vacate the company house on a given date. The respondent did not surrender the vehicle neither did he vacate the house.

I must mention that a dispute arose between the parties hinging on whether the respondent had resigned or had been dismissed as the applicant had, after the respondent's resignation, purported to conduct a disciplinary hearing and to dismiss him from employment. Although that leg of the dispute between the parties is not before me, I mention, for completeness, that it has since been resolved by the Labour Court which concluded that the respondent had in fact resigned and had not been dismissed.

Be that as it may, the respondent's refusal to surrender both the vehicle and the house prompted the applicant to make this application before this court seeking an order compelling the respondent to surrender the property.

The application is opposed, and, in his opposing affidavit, which also betrays the level of acrimony in the relationship between the parties, the respondent sought to argue that as the motor vehicle and accommodation were part of his employment benefits, those issues were outside the jurisdiction of this court and fell for determination by the Labour Court which was then seized with an appeal he had lodged therein.

The respondent insisted that in terms of the conditions of service of the applicant, he was entitled to purchase the vehicle as he had had it for 7 years when the conditions of service allowed an employee the right to purchase a vehicle allocated to him at the expiration of a period of 5 years....,.

Regarding the issue of jurisdiction, this court has stated, on times without number, that its jurisdiction has been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] only in those matters where the Labour Court is granted specific jurisdiction by section 89(1) of the Labour Act: Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H)…,.; DHL International Ltd v Madzikanda 2010 (1) ZLR 201 (H)…,.; Moyo v Gwindingwi N.O. & Anor HB168-11….,.; Jambwa v GMB HH124-13; PG Industries (Zimbabwe) Ltd v Machawira HH255-12.

The Labour Court enjoys exclusivity in all matters where the cause of action and the remedy are all provided for in the Labour Act. Outside that, for instance where the cause of action and the remedy are located in the common law, the ouster provision in the Labour Act has no application and this court will exercise jurisdiction.

In casu, it is common cause that the employment contract of the parties was terminated in May 2011. The applicant insisted that it had been terminated by dismissal while the respondent took the view that he had resigned. As I have already stated, the Labour Court decided in favour of the respondent concluding that he had resigned. Whatever the case, the employment of the respondent was terminated and he is no longer an employee of the applicant.

The situation presented by this case is the same as that which arose in Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) and I can do no better than repeat what was stated by MAKARAU JP…, that:-

“While it has to be accepted that the respondent's claim of right to the motor vehicle arises from her terminated contract of employment with the applicant, this is a far cry from holding that there is a labour dispute between the parties that can find a remedy or resolution in terms of the Act. The resolution of the dispute between the parties is not entwined with the resolution of the contract of employment, as was the case in Zimtrade v Makaya supra (2005 (1) ZLR 427 (H)). There, pending determination of the contract of employment, the employer sought to repossess its assets from the employee using the rei vindicatio. It appeared to me, then, to be the correct position at law that where the validity of the suspension of the employee or the termination of their employment is still pending, the rei vindicatio could not properly lie at the instance of the employer.

I am still of the same view.

On the contrary, where the status of the former employee is without dispute, the rei vindicatio can lie at the instance of the employer in appropriate cases and the matter thereby falls outside the purview of the Labour Court as it is not a matter that can be heard or determined in terms of the Labour Act or any other related enactment. It is my view that the rei vindicatio is not a cause of action whose remedy can be granted in terms of the Act as a stand-alone remedy in the absence of a dispute that is specifically provided for under the Act.”

I associate myself fully with that pronouncement. I will therefore exercise jurisdiction.

HH211-15 : NETONE CELLULAR PL vs THE MINISTER OF PUBLIC SERVICE LABOUR AND SOCIAL WELFARE and NATIONAL EMPLOYMENT COUNCIL FOR THE COMMUNICATIONS AND ALLIED SERVICES INDUSTRY
Ruled By: MAKONI J

The applicant approached this court seeking the following relief:“IT IS DECLARED AS FOLLOWS:1. The application to the Applicant of the provisions of a collective bargaining agreement born of a process to which the Applicant was not party is a violation of the Applicant's constitutional right to freedom of association.2. The ...

The applicant approached this court seeking the following relief:

“IT IS DECLARED AS FOLLOWS:

1. The application to the Applicant of the provisions of a collective bargaining agreement born of a process to which the Applicant was not party is a violation of the Applicant's constitutional right to freedom of association.

2. The imposition upon the Applicant of the requirement to register with the Second Respondent is a violation of the Applicant's constitutional right to freedom of association.

3. The mandatory payment of dues by the Applicant to the Second Respondent is a compulsory acquisition of the Applicant's property in violation of the Applicant's constitutional right to protection from the compulsory acquisition of property without compensation.

4. Section 82(1)(a) of the Labour Act [Chapter 28:01] and sections 2(a) and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) are in violation of section 21 of the Constitution to the extent that they provide for the infringements declared in paragraphs A1 and A2 of this order.

5. Sections 33 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) is in violation of section 16 of the Constitution by reason of the infringement declared in paragraph A3 of this order.

IT IS ORDERED THAT:

1. Sections 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I.1 of 2012) are struck down.

2. Section 82(1)(a) of the Labour Act [Chapter 28:01] is struck down to the extent of deleting the words “and all employers, contractors and their respective employees in the undertaking or industry to which the agreement relates.”

The background to the matter is that the applicant is in the business of providing cellular communications. The second respondent is a council established in terms of section 56 of the Labour Act for the communications services sector.

Sometime in 2010, the second respondent, after having followed the due process provided for in the Labour Act, varied its scope to include, inter alia, cellular communications.

In a letter dated 9 January 2012, the second respondent advised the applicant that a Collective Bargaining Agreement for the Communications and Allied Services Industry (the (CBA) had been published on 6 January 2012, in S.I.11 of 2012. It further invited the applicant to register with the second respondent and pay the dues as stipulated in the Collective Bargaining Agreement (CBA). The applicant objected and the second respondent threatened to have the applicant arrested.

The applicant then instituted the present proceedings.

The applicant avers that despite being the biggest employer in the communications industry, it was not aware of and did not participate in the creation of either the second respondent or the Collective Bargaining Agreement (CBA). It has no wish to be a member of the second respondent nor does it wish to pay dues to it. It has notified the second respondent, which has sought to compel the applicant to submit to membership and remit dues in terms of the provisions of the Collective Bargaining Agreement (CBA) and the Labour Act.

It further avers that section 82(1)(a) of the Labour Act makes Collective Bargaining Agreements (CBAs) apply to entire industries without regard to whether the participants have adopted the instrument. It is not a member of the employers association that is party to the Collective Bargaining Agreement (CBA) and is not aware whether any of its employees belong to a union party. Section 82(1)(a) of the Labour Act therefore violates its right to freedom of association and is therefore inconsistent with section 21 of the Constitution.

Sections 2(a) and (b) of the Collective Bargaining Agreement are unconstitutional for the same reasons.

The applicant further avers that section 33 and 36 of the Collective Bargaining Agreement (CBA) are unconstitutional. Section 33 effects a compulsory acquisition of the applicant's funds by requiring the applicant to pay dues to the second respondent. This violates section 16 of the Constitution. Section 36 compels the applicant to join the second respondent thereby violating the applicant's rights under section 21 of the Constitution. The second respondent went to the extent of violating the applicant's rights by making a report to the police and persuading the police to arrest officers of the applicant.

In opposition, the second respondent initially raised two points in limine, namely:

(1) Whether this court has jurisdiction to entertain the present matter....,.

The second respondent approached the issue of lack of jurisdiction of this court from two angles, viz:

(i)...,.

(ii) That this court has no jurisdiction, at first instance, to entertain the application as the matter emanates from the provisions of the Labour Act....,.

Labour Dispute

Counsel for the second respondent submitted that although the applicant is seeking for a declaratur, the court must look at the nature of the dispute and see whether the legislature has not provided relief in another forum. The issue of Collective Bargaining Agreements (CBAs) fall under the domain of the Labour Court. The Labour Act provides for adequate remedies to address peculiar circumstances of an employer or employee such as:

“(1) Section 81 of the Act provides for an appeal to the Labour Court.”

He further submitted that in terms section 89(6) of the Labour Act no other court in Zimbabwe is competent to deal with labour matters other than the Labour Court. The applicant is taking issue with provisions that regulate the administration of Collective Bargaining Agreements (CBAs). The provisions are within the ambit and shape of the Labour Act and the forum of first instance is the Labour Court and not any other court.

Counsel for the applicant contended that the dispute between the parties relate to violations of the applicants Constitutional rights and the Labour Court is not empowered to grant such relief. He further contended that the Labour Court has no power to issue declarators.

Paragraph 5 of the applicant's founding affidavit is very clear on the nature of the application before me. The application seeks to challenge the constitutionality of section 82(1)(a) of the Labour Act and section 2(a), 33 and 36 of S.I.1 of 2012.

It is a dispute over the violations of the applicant's Constitutional rights and is not the sort of dispute that is reserved for the Labour Court by section 89(6) of the Labour Act. The Labour Court is a creature of statute and is empowered only to grant the forms of relief that are specified in the relevant statute. See Gomba v Associated Mine Workers Union HH118-05.

There is nothing in the enactment that empowers the Labour Court to determine disputes as to violations of the Constitution and strike down legislation.

In any event, it is settled law that the Labour Court has no power to issue declarators. See Mushoriwa v Zimbabwe Banking Corporation Ltd 2008 (1) ZLR 125 (H)…,.

HB147-18 : MARTIN JONGWE vs NATIONAL FOODS LTD and LABOUR COURT (BULAWAYO - HON KABASA)
Ruled By: MATHONSI J

The Labour Court is a creature of statute and cannot do that which it is not empowered to do by the statute creating it....,.Counsel for the respondent made an interesting point relating to jurisdiction.He submitted that this court does not have jurisdiction to review decisions or proceedings of the Labour ...

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the judgment of the High Court, Harare handed down on 13 July 2005 in which the High Court granted with costs an application by the respondents declaring, inter alia, that they were entitled to payment of a mileage allowance of 4,000 kilometres per month calculated at the Automobile Association of Zimbabwe (AAZ) rates.

The facts of this case are these:

The respondents were employed by the appellant as Assistant Director, Credit Risk and Assistant Director, Debt Recovery, respectively. Both respondents signed revised contracts of employment in the year 2000 which stipulated their conditions of employment. The contract of employment provided, in paragraph 3, as follows:

“3. Motor Vehicle Use

You are entitled to the use of an Agribank company car under the prevailing terms and conditions. You are required to familiarize yourself with the existing rules and regulations for the use and disposal of the motor vehicle.

Or

You are entitled to purchase a motor vehicle under the prevailing motor vehicle scheme. You will use the car for business and claim in accordance with the existing rules and as amended from time to time. You are also entitled to a mileage allowance based on a mileage of 4,000 kilometres per month at the applicable standard AAZ rates.”…,.

The underlined portion of paragraph 3 is at the centre of the dispute in this matter.

By letter dated 30 August 2001, the appellant's Human Resources Manager wrote to the respondents advising them that, following the restructuring of management grades, the appellant's Board had approved the conversion of the company car scheme to a personal car scheme under the managers and field staff motor vehicle scheme with effect from 1 September 2001.

The conversion to a personal car scheme was done without reference to the respondents.

The conversion meant that the use of a company car was being done away with and the respondents would no longer access fuel and other facilities previously offered by the Bank in this regard. The respondents were offered a loan equivalent to the purchase price of their existing company vehicles and a monthly allowance of $30,300 to assist in “the cost of running the motor vehicle.”

It appears the respondents were not happy with the conversion to the new scheme, and, on 3 September 2001, wrote a letter to management raising various issues on the matter and threatening legal action because of what they perceived as a breach of contract.

One of the issues raised was their entitlement to an allowance based on a monthly mileage of 4,000 kilometres.

The response by the Managing Director of the appellant was that such an allowance “would ultimately be too expensive for the Bank to sustain” and that the change had been “influenced by the magnitude of the vehicle allowance cost and its sustainability.”

Thereafter, the parties engaged in considerable exchange of correspondence on the matter. The respondents continued to insist that they were entitled to the allowance. The appellant maintained that it could not justify payment of such a huge allowance.

The appellant eventually stated, by letter dated 14 April 2004, that the allowance had been included by mistake and that the intention had been to allow the respondents to use their personal vehicle and submit claims for such use under the Bank's prevailing terms and conditions.

In June 2004, the respondents then filed a court application seeking, inter alia, a declarator that they were entitled to payment of the allowance.

After hearing both parties, the High Court granted the application with costs. It is against that decision that the appellant has appealed to this Court.

The decision of the court a quo is attacked on four bases. These are:

(i)...,. ;

(ii)...,.;

(iii)...,.;

(iv) Fourthly, that the court a quo erred in coming to the conclusion that it had jurisdiction to determine what was essentially a labour dispute contrary to the provisions of section 89(6) of the Labour Act [Chapter 29:01]....,.

WHETHER THE HIGH COURT HAD JURISDICTION TO DETERMINE THE APPLICATION

It is the appellant's contention that what was before the court a quo was essentially a labour dispute and in the light of the provisions of section 89(6) of the Labour Act [Chapter 28.01], only the Labour Court has the jurisdiction, in the first instance, to hear and determine such a matter.

In support of its argument, the appellant has cited the case of Sibanda & Anor v Bensen Chinemhute & Anor HH131-04. In that case, MAKARAU J…, made the following remarks…,:

“Consequent upon my finding above, that this court is only barred from exercising its inherent jurisdiction in labour matters where the Labour Court has jurisdiction, it appears to me that this court retains its jurisdiction to grant declaratory orders in terms of section 14 of the High Court Act in labour disputes…,.”

The learned judge continued at p8 of the cyclostyled judgment:

“Similarly, I hold that in the absence of the specific power on the part of the Labour Court to issue a declaratory order as competent relief to parties appearing before it, the jurisdiction of this court to do so, in the first instance, has not been ousted.”

The above case does not in fact support the appellant's contention that the High Court has no jurisdiction to hear the application. To the contrary, the case is authority for the proposition that the High Court retains its original jurisdiction to grant declaratory orders - even in labour disputes.

The appellant has not sought to argue that that case was wrongly decided.

In Johnson v AFC 1995 (1) ZLR 65 (H) GUBBAY CJ had occasion to consider when a declarator can be granted. The learned Chief Justice remarked…,:

“The condition precedent to the grant of a declaratory order, under section 14 of the High Court of Zimbabwe Act 1981, is that the applicant must be an 'interested person', in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the Court. The interest must concern an existing, future, or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction…,.”

It was not in contention before the court a quo that the respondents were interested persons. The only issue for determination was whether the case was a proper one for the exercise of discretion under section 14 of the High Court Act.

The trial court reached the conclusion that it was.

The fact that the dispute could well have been determined in the Labour Court is not the determining factor. In Johnson v AFC 1995 (1) ZLR 65 (H) GUBBAY CJ remarked…,:

“Nor does it seem to me that the availability, in the same court, of a remedy by way of interdict was of itself reason to refuse declaratory relief. Standing alone, it will seldom be sufficient to induce a court to decline jurisdiction. It is but one factor to be taken into account by the court in the exercise of its discretion whether or not to make a declaration of rights…,.”

See also HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4ed…,.

I am of the view that the court a quo was correct in coming to the conclusion that it had the jurisdiction to deal with the matter. Paragraph 1 of the order granted by the court a quo was clearly declaratory.

This ground of appeal must therefore fail.

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT
Ruled By: CHIGUMBA J

It appears to me, that, by its very nature, the Labour Court is frequently seized with matters whose conduct evokes the biblical David and Goliath pathos. David, being the employee litigants that appear before it, and, Goliath, being represented by the more powerful employer.It is important that labour practitioners pay ...

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

On 21 July 2015, I registered an arbitral award in favour of the applicant which was in the following terms:

“It is ordered that;

1. The arbitration award attached hereto, and granted in favour of the applicant on the 29th of October 2014, be and is hereby registered as an order of this Honourable Court.

2. The respondent be and is hereby ordered to pay the applicant $11,448=88 plus interest of 5% per annum from the date of the arbitral award up to the date of full payment.

3. Respondent shall pay costs of this application at a higher scale if it opposes the application but if it does not oppose the application each party to bear its own costs.”

The respondent has appealed against the registration of the award and has asked for my written reasons for registration.

A summary of the case is in order.

The applicant obtained an arbitral award in his favour for unfair dismissal. He was dismissed for tarnishing the image of the Zimbabwe Manpower Development Fund (ZIMDEF) by failing to pay his personal debts and drawing public attention by being pursued by the Messenger of Court at his workplace.

His conduct was deemed, by the employer, to be inconsistent with the conditions of his employment.

He disputed being guilty of misconduct on the basis that these were private debts and the charges stretched too far and were unfair.

The Messenger of Court had threatened to attach the employer's property and had disrupted business.

The arbitrator's finding was that the failure to repay debts did not justify disciplinary proceedings. The arbitrator's view was that allowing the charges to stand would set a bad precedent for labour relations.

The arbitrator who did the calculations of what was due to the applicant, who was different from the original arbitrator, ordered that he be paid $11,448=88 plus interest at 5% per annum from the date of the arbitral award to the date of full payment.

The applicant sought registration of the award in order to compel the respondent to comply with the award.

The respondent had opposed the registration in the initial instance, on the grounds that there was a pending application for interim relief in the Labour Court and that the Labour Court should be given an opportunity to make a ruling on the application for interim relief pending before it. It was argued that registration would render the Labour Court application nugatory.

It was also argued, by the respondents, that a litigant who has taken advantage of the procedure to seek interim relief would suffer the very harm from he had sought protection.

In addition, the respondent also highlighted, in its application, that it had a general appeal pending on the matter in the Labour Court besides its interim application.

At the hearing of this opposed application, on 21 July 2015, the applicant drew attention to the fact that the pending application for stay of execution pending appeal, upon which the respondent had resisted registration on the basis that it would be rendered nugatory, had since been heard and dismissed on 17 April 2015 under LC/H/349/14. As such, it was the applicant's argument that there was no basis upon which to refuse to grant registration.

The applicant further argued that the respondent's standpoint, that to register the award would be against public policy, also lacked merit.

The respondent, on the other hand, acknowledged dismissal of the application for interim relief but emphasized that it had filed an application for leave to appeal the dismissal of its application for interim relief. As a result of this pending application for leave to appeal, it was argued that I should not register the award.

Furthermore, it was the respondent's argument that the main appeal on the award had yet to be heard.

In addition, it was maintained that to register the award would be against public policy on the basis that the manner in which the calculation of the award had been done would result in tax avoidance.

At the same time, the respondent was adamant that the process that had been initiated in the Labour Court, in terms of the challenge to the arbitral award, should certainly not be ignored.

The applicant, however, resisted the respondent's argument that registering the award would be against public policy on the basis that, as this was a labour matter, Article 34 and 36 of the Uncitral Model Law set out in the Schedule to the Arbitration Act [Chapter 7:15] was not applicable.

This was said to be because the Arbitration Act and its provisions apply to matters referred to compulsory arbitration in terms of section 98(2) of the Labour Act. Reliance for this viewpoint was placed on the case of Samudzimu v Dairibord 2010 (1) ZLR 357 (H).

More significantly, the respondent put forward the argument that gone are the days when this court could argue that it cannot interfere with a labour matter as it has now been constitutionally as a court of original jurisdiction.

It was emphasised that this court therefore had jurisdiction to determine a labour matter.

Authority for this standpoint was placed on the case of Confederation of Zimbabwe Industries v Rita Marque HH125-15 whereby MATHONSI J held that section 171(1)(a) of the Constitution of Zimbabwe had reinstated the jurisdiction of the High Court in labour matters which had been ousted by section 89(6) of the Labour Act [Chapter 28:01].

Section 89(6) of the Labour Act essentially provides that no court, other than the Labour Court, shall have jurisdiction to hear and determine labour matters - which include applications and appeals.

Section 171(1)(a) of the Constitution, which is argued to have altered this position, provides that “the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Jurisdiction of a court essentially refers to the authority that a court has to hear and determine a dispute that is brought before it. This is in distinction to the court's “inherent power” to do something as dealt with by section 176 of our Constitution.

In terms of this section, the Constitutional Court, the Supreme Court, and the High Court all have inherent powers “to protect and regulate their own process and to develop the common law or customary law taking into account the interests of justice and the provisions of this Constitution.”

Such inherent powers can thus be inherent procedural powers or inherent substantive powers and are exercised on the premise that the court in question already has jurisdiction in the first place.

Thus, regulation of process, as exhorted by section 176 of the Constitution, would be largely an exercise of inherent procedural powers; while development of common law and customary law, as per section 176 of the Constitution, would be largely an exercise of inherent substantive powers.

The respondent's argument was founded on the jurisdictional authority of the High Court, in terms of section 171(a) of the Constitution, to hear and determine a civil matter, in this instance, a labour dispute.

It was against the backdrop of the jurisdictional argument that I formulated the decision to grant the order of registration.

I took into consideration the argument advanced by the respondent, that, this court is now fully empowered to hear such labour matters as a court of original jurisdiction.

As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) of the Constitution does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force, that, in reality, places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court “jurisdiction over labour matters as conferred by an Act of Parliament.”

The applicable Act of Parliament, in labour matters, is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction, in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said that at least, in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171 of the Constitution.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful “need” for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters.

It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.

Ordinarily, existing legislative mechanisms that are in place would logically need to be followed unless there exist strong reasons for intervention or unless a reading of any specific provision suggests otherwise in terms of the jurisdiction question: see, for instance, Mapini v Omni Africa (Pvt) Ltd HH494-13 and also the discussion in Derdale Investments (Pvt) Ltd v Econet Wireless (Private) Ltd & Ors HH656-14.

Generally, it would also be amiss to lose sight of a major reason behind the creation of the Labour Court: which was that it would be a specialist court on labour issues.

More significantly, in casu, the Labour Court had already been approached as a court of original jurisdiction in terms of the appeal and interim relief sought, in keeping with legislative intention.

The approach to the High Court was registration-related because when it comes to registration of labour awards, the Labour Court clearly lacks jurisdiction as the legislature gives this power to Magistrates' Courts and the High Court depending on the value of the award.

Registration of awards, in terms of section 98(14) of the Labour Act, is, therefore, an area of Labour Law where the statute endows the Magistrate Court and the High Court with registration jurisdiction: see Trust Me Security Org v Mararike & Ors HH325-14.

Also, Articles 34 and 36 of the Uncitral Model Law, Schedule to the Arbitration Act [Chapter 7:15] empower the High Court as the forum to set aside an award on specified grounds.

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

This matter came before me as an urgent application.

After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary affidavits and heads of argument.

The dispute arises out of the registration of an arbitral award by this court at the instance of the applicant.

Subsequent to the said registration, the applicant caused a writ of execution to be issued by the Registrar of this Honourable Court. The writ was served by the first respondent who attached a number of assets belonging to the fourth respondent.

When the first respondent attended at the fourth respondent's premises to remove the attached goods, the third respondent, a firm of legal practitioners engaged by the fourth respondent, intervened and allegedly advised the first respondent that the order of this court had been stayed by an order of the Labour Court.

Thereafter, the legal practitioners for the applicant, on the one hand, and those representing the fourth respondent, on the other, engaged in correspondence whose tone descended with each letter, culminating in each of them hurling insults, threats, and counter accusations.

It is sad to record that insults were traded between the legal practitioners of the applicant and the respondents.

Needless to say, the first and second respondents were not spared from this barrage.

I think it it is pertinent to remind legal practitioners, that, the second respondent and his deputies are officers of this court. In the performance of their duties, they are supposed to be impartial.

If there exists a dispute between parties, it would be foolhardy for the second respondent, especially, to be seen to be taking the side of one party against another.

If there is a court order which has been granted staying execution, as happened in this case, the second respondent cannot be expected to conclude that the court order is irregular and should be disregarded. That would lead to a breakdown in the rule of law as well as a complete disregard and breakdown of the judicial system.

For the applicant to suggest, as he did, that, the first and second respondents ought to have, upon his demand, overlooked the existence of the order of the Labour Court and proceeded to levy execution in his favour 'because the order was clearly wrong', is, to my mind, tantamount to encouraging any official to disregard orders of the courts of this country.

The respondents have no capacity to decide if an order is incompetent or otherwise. That is the function of these courts.

The first and second respondents, having been threatened with criminal sanction, wisely, in my view, decided to take no further action until a court had decided whether one or the other was in the right from a legal perspective.

They have, as a result, been brought to court for an order for mandamus for the Sheriff and his Deputy to perform their duties in terms of the law.

I cannot fault the manner in which they handled their task. The same cannot, however, be said of the legal practitioners for the applicant and the fourth respondent.

The starting point would, in my view, be the award that the applicant obtained from the arbitrator which is the causa causans of the entire dispute.

The applicant was employed by the fourth respondent as a Director of the Agricultural unit at the school. On 6 March 2009 he was dismissed following a finding that he was guilty of wilful disobedience to a lawful order.

He filed an appeal to the Minister who referred the matter to an arbitrator for conciliation.

The arbitrator heard the parties on 12 May 2009, and, on 30 June, the arbitrator issued an award in favour of the applicant. The arbitrator found that there had been unfair labour practice against the applicant and gave the following award:

(i) That the employee be paid salary arrears from 1 March 2009 to 30 June 2009 and gratuity with immediate effect;

(ii) That the employee be paid three (3) months cash in lieu of notice, gratuity, and any outstanding vacation leave days with immediate effect;

(iii) That the employee be paid damages in lieu of reinstatement. Further, that, the parties negotiate the quantum of damages payable, if they fail to agree they should refer the matter back to arbitration.

The parties did not agree on the amounts to be paid, and, as a result, on 7 June 2010, the applicant referred the dispute to the arbitrator for an assessment of the monies due and owing as damages in lieu of reinstatement.

The arbitrator, on 7 June 2010, awarded the applicant US$60,000 as damages in lieu of reinstatement.

Armed with this award, the applicant then filed a chamber application with this court for the registration of the award.

In the draft order attached to the application, he sought registration of the awards granted to him on 16 July 2009 and 7 June 2010 respectively.

The learned judge before whom the application was placed, pointed out, correctly, in my view, that the first mentioned award did not sound in money.

To comply with this query, the applicant then submitted two annexures, one of which was a payslip and the other a document which purportedly set out all the sums as salary and allowances claimed from February 2009 to June 2009. These amounts totalled US$29,367 were accordingly claimed on the amended draft order filed by the applicant.

There was, however, no indication on the papers that these amounts had been awarded by the arbitrator.

On 21 June, this court gave an order in favour of the applicant in which the arbitral award of June 2010 was registered together with an amount of US$29,367 - which clearly was not part of the award by the arbitrator.

When the parties appeared before me, I raised a query with the applicant's counsel as to the entitlement by the applicant to have this aspect of the award registered with this court.

Counsel, who had not been instructed on the circumstances surrounding the registration of the award, was unable to confirm that it was based on an award by the arbitrator.

I indicated to the parties, that, in my view, the award had been registered in error and that it was my intention to invoke Rule 449 of the Rules of the High Court and rescind that part of the order.

Accordingly, the order of this court, dated 21 June 2010, relating to an award by Mpisaunga, dated 16 July 2009, for the sum of US$29,367 is hereby rescinded.

I now turn to the dispute between the parties.

The applicant seeks an order that the process of execution be proceeded with by the first and second respondents. He also seeks an order barring the fourth respondent from interfering with the first and second respondents in the execution of their duties.

In the final relief, the applicant also sought an order to the effect that Rule 34(1) of the Labour Court Rules 2006, S.I.59/06, S.I. 59 of 2006 is ultra vires the Labour Act [Chapter 28;01].

Subsequent to his having an order issued in his favour, the applicant caused, on 23 June 2010, a writ of execution to be issued by the Registrar of this Honourable Court.

It is common cause, that, on 28 June, the first respondent attended at the premises of the fourth respondent armed with the writ and attached two buses and a tractor. Removal was scheduled for 1 July 2010.

He did not do so due to a letter, dated 30 June 2010, from Messers Kantor & Immerman which advised the first respondent that a stay of execution had been granted in favour of the fourth respondent by the Labour Court, and that, therefore, the respondent ought not to proceed further with the process.

A copy of the order, which was attached to the letter, reveals that the order staying execution was granted in chambers by KACHAMBWA President on 30 June 2010.

The president had granted a stay on the execution of the judgment relating to the damages in lieu of reinstatement but had allowed execution on the part of the award which was not the subject matter of an appeal.

It transpired that the fourth respondent had not appealed against the award of 16 July 2009 but had appealed the award issued on 7 June 2010. The applicant had apparently not been served with the Notice of Appeal.

The applicant and his legal practitioners were not convinced that the Labour Court could order stay of execution on an order emanating from this court, and, accordingly, on 14 July, the latter addressed a letter to the first respondent urging him to proceed with execution.

The first respondent complied and served a fresh notice of removal on 16 July 2010. Removal was this time scheduled for 21 July 2010.

He was unsuccessful as he was met with resistance.

In the meantime, the fourth respondent's legal practitioners had addressed a letter to the first respondent, which they copied to the applicant's legal practitioners, on 19 July, in which they intimated that the writ of execution was no more legally enforceable and warning the first respondent that he risked being charged with a criminal offence if he persisted with execution.

A further letter on the issue was written to the applicant's legal practitioners, on 22 July 2010, in which it was stated, amongst other things, that, any instructions to the first respondent to proceed with execution would be unlawful because the writ had been suspended by the Labour Court.

In view of the turn of events, the second respondent advised the first respondent to suspend execution pending the determination of the application filed by the applicant, in the Labour Court, for rescission of the order for stay of execution.

The applicant sought an explanation from the second respondent who reiterated that his office would not proceed with the process of execution until the rescission would have been determined hence the application before me as the applicant is of the view, that, until such time as the order of this court has been set aside the writ is valid.

The execution of judgments of the High Court is provided for in Order 40 of the Rules.

Rule 324 thereof provides that a writ of execution, once issued, remains in force until such time as the judgment has been satisfied.

Rule 323 provides that one or more writs may be sued out by any person in whose favour a judgment has been pronounced if such judgement has not been satisfied, stayed, or suspended.

The contention of the first and second respondents is that the writ cannot be enforced because it has been suspended by the Labour Court.

The order by the Labour Court staying execution of the order of 21 June 2010 was effected in terms of Rule 34 of the Labour Court Rules which is to the following effect:

"Where a decision, order, or determination has been registered in terms of section 92B(3) of the Act, the Court or a President sitting in chambers may, upon application, order a stay of execution of the decision, order, or determination.”

The issue which then arises is whether this was a decision, order, or determination registered according to the provisions of section 92B of the Labour Act.

Section 92B(1) of the Labour Act provides that the Labour Court may fix the date from which any decision, order, or determination made by it may operate.

Subrule (2) requires the court or the president who made the decision to submit sufficient copies of the order or decision to the Registrar, who, in turn, will provide a copy to each of the parties affected by the order or decision.

Section 92B(3) of the Labour Act, in turn, permits the registration of the order or decision with the Magistrates Court or the High Court, depending on the jurisdictional limit of the lower court.

Clearly, an award from an arbitrator cannot be registered under section 92B of the Labour Act.

A closer scrutiny of the Labour Act actually reveals that the appropriate section for the registration of such awards is section 98(14) of the Labour Act, which is, to all intents and purposes, a mirror of section 92B(3) of the Labour Act except that there is reference to an arbitrator and an arbitral award as opposed to the Labour Court and a decision, order, or determination.

In my view, the Labour Court provided for the suspension of orders or decisions registered under section 92B(3) of the Labour Court only.

The judgments registered under section 98(14) of the Labour Act have been excluded.

Any suspension of any award granted under section 98 of the Labour Act would therefore be ultra vires the Rules themselves as they have not provided for such suspension.

The matter however does not end there.

The applicant has contended, that, irrespective of what the Labour Court Rules may provide, that court does not have the jurisdiction or power to suspend or stay execution of an order or judgment of this Honourable Court.

In terms of section 92B(4) of the Labour Act, once a judgment or order has been registered with the High Court, it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.

The same provision is found in section 98(15) of the Labour Act.

Effectively, therefore, once this court issued an order registering the award in favour of the applicant; upon the registration, the award became, to all intents and purposes, a judgment of the High Court.

The contention by the applicant is that, as a result of the registration, the Labour Court ceases to have jurisdiction over the judgment and it cannot control, vary, set aside, or rescind the judgment.

I think this is a correct exposition of the law.

The effect of the registration with this court is that only the High Court, barring an appeal to the Supreme Court, can interfere with the judgment or its execution. This is because, the High Court, being a court of superior jurisdiction, has the inherent power to regulate its own proceedings as remarked by GILLESPIE J in S v Chakwinya 1997 (1) ZLR 109 (H) as follows:

“…, and the remedy for the accused here lies in the inherent jurisdiction of this court to regulate its own proceedings and to protect the rights of those coming before it."

Clearly, the import behind Rule 34(1) of the Labour Court Rules is to permit the stay of any judgment registered with a court possibly with inferior jurisdiction to it.

I say possibly because this aspect was not argued before me as that was not the situation confronting the parties. I am therefore not in a position to state, with certainty, that the Rule permits this.

It is an issue that would have to be argued before a court can pronounce on it.

What I can state is that the Rule cannot be read as giving the Labour Court the power to regulate proceedings of the High Court. To the extent that it appears to do so, the Rule, in my view, is in conflict with the Labour Act and the limited jurisdiction granted to the Labour Court in terms of section 89 thereof.

I am bolstered in this view by the comments of SANSOLE J in Chibaya v Chibaya 1985 (2) ZLR 237…, where he quoted from remarks by ROPER J in R v de Jager 1953 (2) SA 197, remarks to the following effect:

"The ordinary rule of law is that an order made by a court can (except by way of appeal or review in a higher court) not be varied except by the court itself:…,."

It is trite, that, a judicial officer cannot vary or set aside a judgment or order issued by an officer of parallel jurisdiction, except in the case of a rescission of an order granted in default, or, in restricted circumstances, in accordance with the provisions of Rule 449 of the rules of this court.

As the applicant rightly argues, if a judge cannot vary or alter aside an order issued by a judge with parallel jurisdiction (see Parker v Parker 1985 (2) ZLR 79…,.) how can it be possible for a judge from a lower court have the power to stay an order issued by a court of superior jurisdiction?

I cannot conceive of a situation where a court can lawfully interfere with execution or suspension of a court order issued by a court of superior jurisdiction to its own.

Execution is a process of the court and every court has the power to control its own process subject to the Rules of Court. In the High Court, that power is inherent: see Strime v Strime 1983 (4) SA 850; and Stumbles & Rowe v Mattinson 1989 (1) ZLR 172.

The courts in this country have all been imbued with the power to regulate their own proceedings and therefore no other court can legally interfere with those proceedings unless in an appeal or a review of the proceedings of that other, which, in any case, would have to be a court of inferior jurisdiction.

In casu, the Labour Court is not such a court as can review or subject to appeal the proceedings of the High Court and it ought not to have stayed the judgment of this court as that is not within its jurisdictional power.

I have been enjoined in this vein to find, by the applicant, that Rule 34(1) of the Labour Court Rules is ultra vires the provisions of section 92B of the Labour Act.

The award which is the subject matter of this dispute falls for registration in terms of section 98 of the Labour Act, and, therefore, this Rule does not make reference to awards registered in terms of that section, and any remarks by this court relating to section 92B of the Labour Act would be obiter.

I will therefore not venture into that territory, as I believe that the law is clearly against the Labour Court staying the execution of an order of this court - even where it has been granted through the registration process of an order, award, decision, or judgment emanating from that court or bodies under its umbrella.

Thus, the order staying execution of the judgment of this court, of 21 January 2010, does not bind this court and the stay is of no force and effect.

The writ issued in consequence of that order is therefore valid and capable of execution by the first respondent or the second respondent.

It is clear, that, as a result of the provisions of Rule 34(1) of the Labour Court Rules a lot of confusion has been evident between the litigants as to which court, between this court and the Labour Court, should be approached for relief when considering a stay of execution.

The import behind section 92B(3) and (4) as well as 98(13) and (14) of the Labour Act is to provide successful litigants under the Labour Act an avenue for the due execution of any orders or awards rendered in their favour.

The purpose was not to make this court or the Magistrates Court the owner of those orders.

However, in order for the orders to be given legal effect, for purposes of execution, the relevant sections provide, that, upon registration, the order or award becomes an order of the court in which the registration has been effected.

The legal consequences of the registration are manifold:

(i) Firstly, if there is need for a stay, in so far as the High Court is concerned, only this court can order a stay of the order. I was not addressed on the issue of an award registered in the Magistrates Court, and, in the absence of argument, I am unable to render an opinion.

(ii) Secondly, once the order is registered, only the High Court can entertain an application for rescission or variation.

The High Court does not have the jurisdiction to deal with labour matters, that being within the exclusive jurisdiction of the Labour Court and structures set up under the Labour Act. In the event that the initial order, judgment, or award has to be reviewed, rescinded, varied or interfered with in any manner, this court plays no part. It cannot determine anything to do with labour on the merits.

The absurd situation is therefore created where this court has registered an order which becomes its own, but, if either party wishes it rescinded, this court cannot consider the merits of the application as it has no jurisdiction to determine labour issues.

In the event, the parties have to utilise the structures set up under the Labour Act to regularise or deal with the dispute, and, once that is finalised, they approach the High Court to set aside its judgment which came by way of registration.

I believe that the burden on the litigant, in the existence of the need to have a multiplicity of actions, is not just unduly burdensome, it can be costly. Invariably, the employee is not legally represented and the minefield presented by the need to jump from one court to another for redress may lead to an injustice.

I would venture to suggest that the Labour Court be provided with the services of the Sheriff for purposes of effecting execution of its own judgments and this would instantly remove the confusion prevailing from the interpretation of Rule 34(1) of the Labour Court Rules.

Already, the Deputy Sheriff and the Messenger of Court are empowered to serve process of that court, and, it would be a simple thing to extend those powers to execution of judgments rendered by the court.

I turn then to the substance of the application, as to whether or not I should issue an order in favour of the applicant directing the first and second respondents to abide by their statutory duties and remove the attached assets and sell them in execution of the judgment of this court.

The powers and duties of the Sheriff are provided for in section 20(1) of the High Court Act to the following effect:

"Subject to section nineteen and to rules of court, the Sheriff shall, by himself or his deputy or an assistant deputy, execute all sentences, decrees, judgments, writs, summonses, rules, orders, warrants, commands and other processes of the High Court, and shall make a return thereof to that court together with the manner of execution thereof."

That there is a statutory obligation falling upon the shoulders of the Sheriff and his lawful deputy, in this case the first and second respondents, is not in dispute. Both are officers of this court and are bound by the High Court Act.

The question to be determined here is whether or not the applicant has made out a case requiring this court to order that the first respondent execute his mandate in terms of the writ.

The applicant has addressed this court at length on the validity of the writ. I do not believe that is the issue before me. The writ is valid until such time as the judgment of this court has been set aside.

The judgment has not.

However, each of the parties has noted an appeal against the assessment of damages by the arbitrator in the sum of US$60,000.

It is trite that a litigant who is dissatisfied with a judgment or decision may appeal against that judgment or decision.

Appeals under the Labour Act are governed by that Act. Section 92D provides:

"A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner prescribed, appeal to the Labour Court."

The effect of noting an appeal under this section is described in section 92E of the Labour Act in the following terms:

"(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires."

In terms of subsection (2), the Legislature has finally put to rest the confusion in the law as to whether or not an appeal under the Labour Act would suspend the operation of the decision or determination appealed against.

The arbitral award was however granted in terms of section 98(9) of the Labour Act.

An appeal against the decision of the arbitrator, on a question of law, lies to the Labour Court in accordance with the provisions of section 98(10) of the Labour Act.

Where section 92E of the Labour Act provides that the noting of an appeal does not suspend the decision or determination, there is no such provision in relation to an appeal against an award by an arbitrator.

In PTC v Mahachi 1997 (2) ZLR 71 (H) CHATIKOBO J stated…,.:

"I am concerned with proceedings conducted in the public law domain under the provisions of the Act. In this domain, the common law presumption against the operation of judgments which have been appealed against applies unless the Act provides to the contrary.

In this case, the Act is silent on the issue. But, does this silence mean that Parliament intended to alter the common law position?

In Phiri & Ors v Industrial Steel & Pipe (Pvt) Ltd SC242-95 (not reported) KORSAH JA said:

'There is a presumption, in the interpretation of statutes, that Parliament does not intend to change the common law, unless it expresses its intention with irresistible clearness, or, it follows, by necessary implication, from the language of the statute in question, that it intended to effect such alteration in the common law; for 'construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself is to sin against one of the most familiar rules of construction….,.': per LORD HALSBURY LC in Bank of England v Vagliani [1891] AC 107 at 120.

I am of the opinion, that, in the absence of a clear indication by the law giver to the contrary, the common law position that the execution of all judgments is suspended upon the noting of an appeal is not ousted by the silence of the statutory instrument in terms of which the respondent's appeal to the Tribunal was lodged upon the effect of such appeal against the order made by the Minister.'"

I will consider, and accept, as CHATIKOBO J did before me in PTC v Mahachi 1997 (2) ZLR 71 (H) that the proceedings against which the appeal was noted were conducted in the public domain law under the aegis of the Labour Act. As such, in the public domain law, the common law presumption against the operation of judgments which have been appealed against operates unless the Act has provided to the contrary viz section 92E(2) of the Labour Act.

I am fortified in this view by comments made by GREENLAND J in Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H)…, to the following effect:

"To my mind, it would be anomalous if an administrative decision of a quasi-judicial nature, as is the case here, were to be put on a different footing from court judgments and orders.

In the absence of anything provided to the contrary in the relevant Act, such decisions must be treated as suspended pending appeal."

The sum total of the comments from the eminent jurists that I have quoted from leaves me with no other conclusion than that the arbitral award, having been appealed against, is not capable of being executed against.

To hold otherwise would be to fly in the face of age old established common law principles, let alone logic.

For a litigant to note an appeal against judgment granted in his favour, and, thereafter, to seek to execute against the same judgment with which he has clearly expressed unhappiness, is, to say the least, an abuse of court process.

ln any event, the fourth respondent has noted an appeal against the award of damages by the arbitrator.

The Labour Court is a creature of statute and is regulated strictly within the four corners of the statute which created it.

The Act that created it has not seen fit to interfere with the common law position which provides that an appeal against a judgment suspends the same.

It stands suspended and the applicant has not convinced me otherwise.

In the premises, I find that the application has no merit and it should be dismissed with an appropriate order for costs. I therefore make an order as follows:

IT IS HEREBY ORDERED AS FOLLOWS:

1. The order of this court dated 21 June be and is hereby varied by the rescission of the order for the sum of $29,367 registered in favour of the applicant as having been registered in error.

2. The application for an order of mandamus against the first and second respondents be and is hereby dismissed.

3. The applicant is ordered to pay the costs of this application.

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

The application before me is a special plea and exception.

The brief facts surrounding this claim are as follows:

The plaintiff was employed by the Confederation of Zimbabwe Industries reporting to the first defendant who was its President and Chief Executive Officer. On 18 June 2014, the plaintiff issued summons against the two defendants claiming damages for shock, non-patrimonial damages, post traumatic damages and pain and suffering.

The plaintiff claims that during the course of her employment with the second defendant, which ran between September 2002 and June 2003, she was sexually harassed by the first defendant who would pester her for an improper relationship. She claims that her resistance to the sexual advances culminated in the termination of her employment by the first defendant for a petty offence.

She challenged the dismissal.

The matter ended up at arbitration. An arbitrator ruled in her favor after having found that she had been sexually harassed by the first defendant. The arbitrator ordered the defendants to jointly compensate her for the damages she had suffered as a result of the sexual harassment....,.

The jurisdiction of arbitrators, when dealing with unfair labour practices, is limited to stopping the conduct complained against. The role of the Labour Court and arbitrators, when dealing with claims involving sexual harassment, is to make a finding on allegations of unfair labour practice and only seek to stop the practice.

The Labour Court or tribunal does not have jurisdiction to assess damages arising from a complaint of an unfair labour practice.

Similarly, a Labour Court or tribunal faced with a complaint of sexual harassment cannot proceed and make an award for damages arising out of the sexual harassment.

The claim for damages was never properly before the arbitrator.

The arbitrator erred in dealing with the issue regarding damages suffered as a result of the sexual harassment as damages were not part of the arbitrator's terms of reference. His terms of reference were clear that he was required to deal with the unfair labour practice only. He dealt with the claim for damages out of his own initiative and wrongly so. He went on a frolic of his own.

The award was subsequently set aside by this court on the basis that the arbitrator lacked jurisdiction to award civil damages.

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo ...

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.

The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo be set aside and substituted with an order dismissing the special plea with costs.

Background

This protracted and bitterly contested matter emanates from the following factual background:

The appellant was employed by the second respondent, reporting to the first respondent, who was the Chief Executive Officer of the second respondent. On 18 June 2014, the appellant issued summons against the respondents claiming damages for shock, pain and suffering, arising from alleged sexual harassment by the first respondent between September 2002 and June 2003.

According to the appellant, her resistance to the first respondent's unsolicited and predatory advances culminated in her dismissal from the second respondent's employment. Her dismissal was challenged and referred to arbitration. The arbitrator found in her favour after finding that she had been sexually harassed by the first respondent.

The arbitrator initially ordered both respondents to jointly compensate the appellant, but, in subsequent proceedings, he referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment.

Before the High Court, the respondents filed a special plea that the claim had prescribed by the time that summons were issued in June 2014.

The second respondent also excepted to the declaration on the basis that it did not disclose a cause of action by reason of the appellant's failure to specifically and properly allege vicarious liability on its part in respect of the first respondent's conduct.

The court a quo found that, by the end of 2003, the appellant was aware of every fact necessary to prove her claim for damages. However, instead of approaching the High Court for damages, she pursued her claim through the labour relations mechanisms of conciliation and arbitration. The arbitrator had no jurisdiction to assess damages arising from an unfair labour practice, and, therefore, could not award damages for sexual harassment. The claim for such damages was not part of the arbitrator's terms of reference and was not properly before the arbitrator.

In the circumstances, the court held that the setting in of prescription was not delayed, in terms of section 17(1)(d) of the Prescription Act, by the purported submission of the claim to the arbitrator. The claim for damages was raised before a competent court well after it had prescribed.

In the event, the court upheld the respondents' special plea of prescription and dismissed the appellant's claim with costs.

Submissions on Appeal

The appellant's position, as appears from her grounds of appeal and voluminous heads of argument, is that the question of sexual harassment was a labour matter to be first determined and disposed of by the arbitrator before any claim for delictual damages could be lodged at the High Court.

She further submits that the issues of sexual harassment and vicarious liability were part of the arbitrator's terms of reference.

Moreover, the arbitrator's finding of sexual harassment was not appealed against and remained unchallenged.

Thus, she contends that the question of damages, having been properly raised before the arbitrator, was not raised for the first time before a competent court well after her claim had prescribed.

Counsel for the first respondent submits, that, there is a fundamental distinction between a claim for compensation in a labour dispute and a claim for damages under the lex Aquilia. Therefore, since there was a different cause of action before the arbitrator as compared with that before the High Court, the reference to arbitration did not operate to interrupt the running of prescription on the claim for damages.

Counsel for the second respondent echoes the same position, but from a slightly different angle.

He submits that the appellant's claim of sexual harassment created two distinct rights:

(i) One was an exclusively labour matter;

(ii) While the other was purely for civil damages.

Consequently, the appellant's claims before the arbitrator did not have the effect of suspending the running of prescription as against the appellant's claim in the High Court.

However, he accepted that the rationale behind section 17(1)(d) of the Prescription Act was the need to avoid the multiplicity of litigation in respect of the same cause of action.

In casu, there are two critical factors that are not in dispute:

(i) Firstly, one of the questions referred to the arbitrator for determination was “whether or not sexual harassment was perpetrated on R.M. Mbatha by F.B. Zizhou in his capacity as Confederation of Zimbabwe Industries Chief Executive Officer.”

(ii) Secondly, in March 2014, the arbitrator found that the appellant had been sexually harassed and ordered the respondents to compensate her for the damages she had suffered.

However, as I have already indicated, the arbitrator subsequently referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment, as that was a matter that fell outside his jurisdictional remit.

In any event, the arbitrator's finding, that the appellant had been sexually harassed, remains extant. It has not been appealed against or otherwise challenged.

Whether Prescription Interrupted by Arbitration Proceedings

In light of the exchanges between the Court and the parties at the hearing of the appeal, the principal issue for determination in casu is the meaning to be ascribed to section 17(1)(d) of the Prescription Act [Chapter 8:11].

Section 17 of the Prescription Act enumerates the various circumstances in which the completion of prescription is delayed. Section 17(1)(d), which is specifically relevant in casu, provides as follows:

“(1) If -

…,.

(d) The debt is the subject matter of a dispute submitted to arbitration, or is the subject matter of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of a debtor or against a company in liquidation or against an applicant under the Agricultural Assistance Scheme set out in the Third Schedule to the Agricultural Finance Corporation Act [Chapter 18:02]; or…, and the period of prescription would, but for this subsection, be completed before or on, or within one year after, the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date.”

As a matter of interpretive principle, in the context of statutory provisions, it is trite that the courts lean towards an interpretation that gives full effect to the purpose for which the provision under consideration was enacted.

In my view, a broad and generous interpretation of section 17(1)(d) of the Prescription Act would give effect to the twofold purpose for which it was enacted:

(i) The foremost rationale of the provision is to avoid the situation where the same dispute is submitted for adjudication before multiple fora.

(ii) The second objective is to ensure that litigants whose disputes are submitted to arbitration are not prejudiced by being precluded from instituting proceedings before the courts, should it become necessary to do so, in respect of the same matters.

On this broad and purposive approach, where a matter is submitted to arbitration, the running of prescription would be arrested notwithstanding that a different remedy is later sought, provided that remedy arises from the same cause of action. To hold otherwise would, in my view, operate to erode the purpose for which section 17(1)(d) of the Prescription Act was created.

While I accept that a cause of action is conceptually distinct from the overlying debt that is claimed, the latter cannot exist in vacuo and must be predicated on the underlying cause of action.

In the instant case, the debt, being the claim for damages for sexual harassment, cannot be severed or divorced from the cause of action, which is the sexual harassment itself.

The question that was submitted to the arbitrator for determination was whether or not sexual harassment was perpetrated on the appellant. This is the same cause of action from which the appellant's claim for damages emanates.

On this basis, it must be accepted, that, the debt claimed by the appellant, being the damages for sexual harassment, constitutes the subject matter of the dispute that was submitted to arbitration.

It then follows that the running of prescription on the claim for damages was interrupted in accordance with the provisions of section 17(1)(d) of the Prescription Act.

The same conclusion is arrived at if one has regard to the broad definition of the term “debt” in section 2 of the Prescription Act [Chapter 8:11], viz:

“Without limiting the meaning of the term, [a debt] includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict, or otherwise.”

The debt sued for in the court a quo arose from the delict of sexual harassment, which delictual matter was also competently before the arbitrator.

The debt in casu comprises two separate but interrelated components, to wit, the delictual conduct perpetrated by the first respondent and the consequent claim for damages.

The arbitrator dealt with and determined the first component of the debt, which consequently gave rise to the claim for damages in the court a quo.

Thus, inasmuch as an essential component of the debt was before the arbitrator, the debt was the subject matter of the dispute submitted to arbitration, thereby interrupting the running of prescription on the claim for damages in the court a quo.

Potential Plea of Lis Alibi Pendens

I am fortified in the foregoing conclusion from a different practical perspective.

The argument that the appellant should have simultaneously, or conjunctively with the arbitration proceedings, pursued a separate suit for delictual damages in the High Court results in the untenable scenario where the arbitrator might possibly have made findings contradictory to those made by the High Court.

Quite apart from this potentially anomalous scenario, the principles governing the special plea of lis alibi pendens would have operated to impede the successful institution of a claim for delictual damages. This is because the claim would be premised on the same cause of action in a dispute between the same parties already pending before an arbitral tribunal.

The rationale behind the special plea of lis alibi pendens is akin to that underlying section 17(1)(d) of the Prescription Act, viz. the need to avoid potential duplication of litigation founded on the same cause of action.

This point was highlighted by the Appellate Division in Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571…, in interpreting the South African equivalent of section 17(1)(d) of the Prescription Act [Chapter 8:11]:

“The same duality of purpose can be seen, in my view, in section 13(1)(f) of the Act which is of direct relevance to the present case. The subsection applies 'if…, the debt is the object of a dispute subjected to arbitration.'

An arbitration agreement does not necessarily oust the jurisdiction of the court.

Despite the existence of such an agreement, the creditor may elect to institute legal proceedings, although he might be met by an application for stay of proceedings or a special plea to the same effect…,.

The court would, in practice, normally order a stay if requested to do so…,.

An arbitration agreement is therefore, in a sense, an impediment to the recovery of a debt by means of legal proceedings, but it is one, because it provides an alternative means of resolving disputes, which carries the approval of the law.

This applies a fortiori where a dispute has actually been subjected to arbitration.

The creditor is protected against the running of prescription because there exists an impediment to his approaching the ordinary courts, and the impediment exists because he is taking appropriate alternative steps to recover his debt. It is against this background that section 13(1)(f) of the Act should, in my view, be interpreted and applied.”

In casu, it would not have been practically possible for the appellant to institute proceedings for delictual damages in the High Court when another competent tribunal was already seized with an unfair labour practice arising out of the same cause of action.

This is so because the respondents would undoubtedly have pleaded lis alibi pendens and succeeded in that plea, thereby preventing the appellant from prosecuting her claim for damages.

Disposition

It follows from all of the foregoing that the appeal must succeed on the basis that the running of prescription against the appellant's claim for damages was interrupted by the submission to arbitration of her claim of sexual harassment by the respondents.

Thus, the prescriptive period would only have expired, in terms of section 17(1)(d) of the Prescription Act [Chapter 8:11], one year after the date of the award rendered in her favour.

Consequently, the appellant's claim for damages for sexual harassment, having been lodged in June 2014, within three months of the award rendered in March 2014, must be regarded as having been timeously lodged in the High Court.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgement of the court a quo be and is hereby set aside and substituted with the following:

“(i) The defendants' special plea of prescription is dismissed with costs.

(ii) The defendants shall plead to the plaintiff's claim within ten days from the date of the judgement handed down by the Supreme Court in Case No. SC80/18 as Judgment No. SC69/2018.”

prev 1 2 next

Back Main menu

Law Portal Zimbabwe

Cause of Action and Draft Orders re: Approach iro Labour Proceedings

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O. Ruled By: ZIYAMBI JA

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER Ruled By: MATHONSI J

HH23-08 : EDWIN MUSHORIWA vs ZIMBABWE BANKING CORPORATION Ruled By: GOWORA J

HH26-10 : MEDICAL INVESMENTS LIMITED vs RUMBIDZAYI PEDZISAYI Ruled By: MAKARAU JP

HH150-09 : SOUTHBAY REAL ESTATE (PVT) LTD vs SOUTHBAY PROPERTIES (PVT) LTD and G RATISSO and CHIEF REGISTRAR OF COMPANIES Ruled By: MAKARAU JP

HH51-10 : DHL INTERNATIONAL (PVT) LTD vs CLIVE MADZIKANDA Ruled By: MAKARAU JP

HH148-10 : ZIMASCO (PVT) LIMITED vs FARAI MARIKANO Ruled By: MTSHIYA J

HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED Ruled By: MAKONI J

HH31-11 : ESTHER CHIYADZWA vs BETTY MAGUWU Ruled By: BERE J

HH94-11 : BEMBA FARM (PVT) LTD vs ZIMBABWE HORTICULTURE AGROINDUSTRIES AND GENERAL AGRICULTURE WORKERS UNION and OTHERS Ruled By: BHUNU J

HH102-11 : KAREN TUMAZOS vs TRAVEL CONECTIONS (PRIVATE) LIMITED and STEWART CRANSWICK Ruled By: MTSHIYA J

HH116-11 : TELECEL ZIMBABWE (PVT) LTD vs NAQUIB OMAR Ruled By: CHIWESHE JP

HH124-13 : HOSEA JAMBWA vs GRAIN MARKETING BOARD Ruled By: MATHONSI J

HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB Ruled By: CHEDA J

HH38-14 : JULIET HOMODZA vs CHITUNGWIZA MUNICIPALITY Ruled By: TAKUVA J

HH171-14 : ANDREW KASERERA and JOHN SIBANDA and SYDNEY MANDIDI and MECK NCUBE and MAJORA LEMBACHURU vs RIOZIM (PRIVATE) LIMITED Ruled By: MANGOTA J

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED Ruled By: MTSHIYA J

HB168-11 : NOKUTHULA MOYO vs NORMAN GWINDINGWI N.O. and DAIRIBOARD ZIMBABWE (PVT) LTD Ruled By: MATHONSI J

HH211-14 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY vs RONALD MUTOMBODZI Ruled By: NDEWERE J

HH272-14 : TREVIGLO SERVICES trading as TADA TEAK AND IRON vs EMMERSON GWATIDZO Ruled By: CHIGUMBA J

HH295-14 : SURFACE INVESTMENTS (PRIVATE) LIMITED vs MAURICE CHINYANI Ruled By: DUBE J

HH566-14 : TAWADZERA ZISHIRI and SHIRELLA PETERS and ANDRA NYANDEBVU and VIOLET CHATINDO and OTHERS vs STREAMSLEIGH INVESTMENTS (PVT) LTD Ruled By: MATHONSI J

HB09-14 : ZIMPAPERS GROUP OF COMPANIES T/A THE CHRONICLE NEWSPAPERS vs MILIDZI KHUPHE and THE HONOURABLE M. MOYO-MATSHANGA Ruled By: MOYO J

HB21-14 : JONA NDALAMA vs COMMISSIONER GENERAL OF POLICE and CHIEF SUPERINTENDENT SIGAUKE and CO-MINISTER OF HOME AFFAIRS Ruled By: MOYO J

Appealed SC01-18 : NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

SC56-18 : CITY OF GWERU vs RICHARD MASINIRE Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

HH92-15 : CAPRI (PVT) LTD vs HOWARD MAPONGA Ruled By: MATHONSI J

HH126-15 : GODFREY JONGA vs CHIEF EXECUTIVE OFFICER, ZAMBEZI RIVER AUTHORITY and ZAMBEZI RIVER AUTHORITY Ruled By: MTSHIYA J

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS Ruled By: MAFUSIRE J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY Ruled By: CHIGUMBA J

HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL Ruled By: MATHONSI J

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY Ruled By: MATHONSI J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND Ruled By: CHIGUMBA J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE Ruled By: CHIGUMBA J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE Ruled By: CHIGUMBA J

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST Ruled By: CHIGUMBA J

View Appeal HH108-11 : GIFT BOB SAMANYAU and THIRTY EIGHT OTHERS vs FLEXIMAIL (PRIVATE) LIMITED Ruled By: MUTEMA J

HH93-18 : CHITUNGWIZA MUNICIPALITY vs MAXWELL KARENYI Ruled By: TAGU J

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE Ruled By: MATHONSI J

HH140-13 : TELONE (PRIVATE) LIMITED vs EDWIN MATINYARARE Ruled By: MAKONI J

HH309-13 : WILLIAM BAIN & COMPANY HOLDINGS (PRIVATE) LIMITED vs AMON NYAMUKUNDA Ruled By: MATHONSI J

HH211-15 : NETONE CELLULAR PL vs THE MINISTER OF PUBLIC SERVICE LABOUR AND SOCIAL WELFARE and NATIONAL EMPLOYMENT COUNCIL FOR THE COMMUNICATIONS AND ALLIED SERVICES INDUSTRY Ruled By: MAKONI J

HB147-18 : MARTIN JONGWE vs NATIONAL FOODS LTD and LABOUR COURT (BULAWAYO - HON KABASA) Ruled By: MATHONSI J

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT Ruled By: CHIGUMBA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: TSANGA J

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE Ruled By: GOWORA J

Appealed HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: DUBE J

View Appeal SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

Categories

Your Donation.

Law Portal
Zimbabwe

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

HH23-08 : EDWIN MUSHORIWA vs ZIMBABWE BANKING CORPORATION
Ruled By: GOWORA J

HH26-10 : MEDICAL INVESMENTS LIMITED vs RUMBIDZAYI PEDZISAYI
Ruled By: MAKARAU JP

HH150-09 : SOUTHBAY REAL ESTATE (PVT) LTD vs SOUTHBAY PROPERTIES (PVT) LTD and G RATISSO and CHIEF REGISTRAR OF COMPANIES
Ruled By: MAKARAU JP

HH51-10 : DHL INTERNATIONAL (PVT) LTD vs CLIVE MADZIKANDA
Ruled By: MAKARAU JP

HH148-10 : ZIMASCO (PVT) LIMITED vs FARAI MARIKANO
Ruled By: MTSHIYA J

HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED
Ruled By: MAKONI J

HH31-11 : ESTHER CHIYADZWA vs BETTY MAGUWU
Ruled By: BERE J

HH94-11 : BEMBA FARM (PVT) LTD vs ZIMBABWE HORTICULTURE AGROINDUSTRIES AND GENERAL AGRICULTURE WORKERS UNION and OTHERS
Ruled By: BHUNU J

HH102-11 : KAREN TUMAZOS vs TRAVEL CONECTIONS (PRIVATE) LIMITED and STEWART CRANSWICK
Ruled By: MTSHIYA J

HH116-11 : TELECEL ZIMBABWE (PVT) LTD vs NAQUIB OMAR
Ruled By: CHIWESHE JP

HH124-13 : HOSEA JAMBWA vs GRAIN MARKETING BOARD
Ruled By: MATHONSI J

HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

HH38-14 : JULIET HOMODZA vs CHITUNGWIZA MUNICIPALITY
Ruled By: TAKUVA J

HH171-14 : ANDREW KASERERA and JOHN SIBANDA and SYDNEY MANDIDI and MECK NCUBE and MAJORA LEMBACHURU vs RIOZIM (PRIVATE) LIMITED
Ruled By: MANGOTA J

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED
Ruled By: MTSHIYA J

HB168-11 : NOKUTHULA MOYO vs NORMAN GWINDINGWI N.O. and DAIRIBOARD ZIMBABWE (PVT) LTD
Ruled By: MATHONSI J

HH211-14 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY vs RONALD MUTOMBODZI
Ruled By: NDEWERE J

HH272-14 : TREVIGLO SERVICES trading as TADA TEAK AND IRON vs EMMERSON GWATIDZO
Ruled By: CHIGUMBA J

HH295-14 : SURFACE INVESTMENTS (PRIVATE) LIMITED vs MAURICE CHINYANI
Ruled By: DUBE J

HH566-14 : TAWADZERA ZISHIRI and SHIRELLA PETERS and ANDRA NYANDEBVU and VIOLET CHATINDO and OTHERS vs STREAMSLEIGH INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

HB09-14 : ZIMPAPERS GROUP OF COMPANIES T/A THE CHRONICLE NEWSPAPERS vs MILIDZI KHUPHE and THE HONOURABLE M. MOYO-MATSHANGA
Ruled By: MOYO J

HB21-14 : JONA NDALAMA vs COMMISSIONER GENERAL OF POLICE and CHIEF SUPERINTENDENT SIGAUKE and CO-MINISTER OF HOME AFFAIRS
Ruled By: MOYO J

Appealed
SC01-18 : NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

SC56-18 : CITY OF GWERU vs RICHARD MASINIRE
Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

HH92-15 : CAPRI (PVT) LTD vs HOWARD MAPONGA
Ruled By: MATHONSI J

HH126-15 : GODFREY JONGA vs CHIEF EXECUTIVE OFFICER, ZAMBEZI RIVER AUTHORITY and ZAMBEZI RIVER AUTHORITY
Ruled By: MTSHIYA J

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

HH212-13 : ELIZABETH CHIWUNDO vs ZIMBABWE NATIONAL FAMILY PLANNING COUNCIL
Ruled By: MATHONSI J

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

View Appeal
HH108-11 : GIFT BOB SAMANYAU and THIRTY EIGHT OTHERS vs FLEXIMAIL (PRIVATE) LIMITED
Ruled By: MUTEMA J

HH93-18 : CHITUNGWIZA MUNICIPALITY vs MAXWELL KARENYI
Ruled By: TAGU J

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE
Ruled By: MATHONSI J

HH140-13 : TELONE (PRIVATE) LIMITED vs EDWIN MATINYARARE
Ruled By: MAKONI J

HH309-13 : WILLIAM BAIN & COMPANY HOLDINGS (PRIVATE) LIMITED vs AMON NYAMUKUNDA
Ruled By: MATHONSI J

HH211-15 : NETONE CELLULAR PL vs THE MINISTER OF PUBLIC SERVICE LABOUR AND SOCIAL WELFARE and NATIONAL EMPLOYMENT COUNCIL FOR THE COMMUNICATIONS AND ALLIED SERVICES INDUSTRY
Ruled By: MAKONI J

HB147-18 : MARTIN JONGWE vs NATIONAL FOODS LTD and LABOUR COURT (BULAWAYO - HON KABASA)
Ruled By: MATHONSI J

SC61-07 : AGRICULTURAL BANK OF ZIMBABWE LIMITED t/a AGRIBANK vs CLEMIO MACHINGAIFA AND CHENJERAI MUTAMBISI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT
Ruled By: CHIGUMBA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA