CHIWESHE
JP: The respondent was a senior employee
of the applicant, holding the post of commercial director. On account of his employment, he enjoyed the
use of a company motor vehicle, a Toyota Prado.
On 5 February 2010 the respondent's contract of employment was
terminated pursuant to a disciplinary hearing.
The respondent has appealed against that decision of the disciplinary
authority. The appeal is pending before
the Labour Court. In the meantime, the applicant has sought to
repossess the Toyota Prado issued to the
respondent on account of his employment, arguing that despite the noting of the
appeal, the respondent is no longer its employee and he cannot, on that
account, hold on to its vehicle. In any
event, argues the applicant, in terms of s 92 E (2) of the Labour Act [Cap 28:01] the noting of an appeal with
the Labour Court does not have the effect of suspending the judgment appealed
against.
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 [Cap 28:01] (“the Act”) 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:-
“(I) 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 s 89 (6)
and 89 (1) (i) of the Act 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 s 89 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 s 89 of the
Act. 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 s 89 (6) and (1) of the Act. 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 (as she then was) in the case of DHL International (Pvt) Ltd vs Clive
Madzikanda HH 51-2010 wherein the facts were on all fours with the facts in
the present case.
In that case, at p 2 of the
cyclostyled judgment, the learned Judge President (as she then was) 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 SC 8/05 and at p
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.
Scanlen & Holderness, applicant's legal practitioners
Mbidzo Muchadehama
& Makoni, Respondent's legal practitioners
