On 1 January 2003, the applicant and the first respondent executed an agreement for the “supply of primary beverage transport services.”

In terms of clause 8 of the agreement, the first respondent, Delta, appointed the services of the applicant, Pioneer, to distribute and deliver products on its behalf to various destinations.

In order to perform its obligations under the agreement, Pioneer undertook to supply vehicles to Delta for use in the distribution aforesaid. To that end, Pioneer had to make available to Delta twelve mechanical horses which would be used to draw thirty-four trailers, these being supplied by Delta.

The agreement also provided for the supply of additional horses, by Pioneer, on an ad hoc basis as the exigencies of the situation would have demanded.

As sometimes happens, the parties had a falling out.

The agreement, in terms of clause 18 thereof, provided for the settlement of disputes through an arbitration process.

In due course, the second respondent was appointed as arbitrator to the dispute and the matter referred to him. The parties were called before him, and, on 16 January 2010, he issued an award.

The applicant has, through these proceedings, brought an application to have the award set aside by this court in terms of Chapter VII, Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15]. The applicant also seeks costs against the first respondent.

The founding affidavit has been deposed to by a John Groves. He states that he is employed as a Managing Director by the applicant and that he is authorised to depose to the affidavit.

He states therein that the application was being brought to court in accordance with the provisions of section 2 of Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15].

The dispute is centred around the effect to be given to clause 9(f) of the agreement, in terms of which, upon termination of the agreement, Pioneer was supposed to return the trailers to Delta, and such return to be in “good working condition” and order fair wear and tear excepted.

The deponent states that, on 26 September, Delta commenced arbitration proceedings in terms of a Statement of Claim filed of record. Pioneer opposed the claim and the matter was set down for hearing before the arbitrator. Both parties adduced viva voce evidence.

According to the deponent to the affidavit the crystal issue before the arbitrator was the duration of the agreement.

The arbitrator found that the claim by Delta had not prescribed at the time that it submitted the dispute to arbitration. The deponent contends, therefore, that the arbitrator acted outside the enabling provisions of the agreement.

He contends, further, that the finding by the arbitrator that the agreement between the parties terminated on 30 November 2005 was not rationally linked to either the evidence adduced by the parties or submissions made by the same on the papers or during the hearing. He contends, further, that, in finding as he did, that the agreement terminated on 30 November instead of 31 December, as provided for in clause 2 of their agreement, the arbitrator had created a new contract for them.

In addition to the above, the applicant contended that the mandate of the arbitrator was limited to the duration of the agreement, and that consequently he was supposed to ascertain the obligations of the parties as at the date of termination of the agreement.

However, contends the applicant, the arbitrator seemed to have extended the applicant's obligations under the contract beyond the lifespan of the agreement.

It is further contended that the applicant's liabilities ought to have been ascertained as at the date.

According to the applicant, the award is not limited to the termination date, as found by the arbitrator, that is 30 November 2005, but goes beyond that. Therefore, the applicant contends, even on his own version, the arbitrator has acted outside the provisions of the contract. This, he suggests, is contrary to the Zimbabwean substantive law on the privity of contracts and therefore contrary to public policy.

The deponent also avers, that, by awarding specific performance in favour of a party who had, in terms of the contract, bilateral obligations which it had itself not performed, and was not in a position to perform, the arbitrator had unjustly enriched one of the parties at the expense of the other contrary to the positive law in Zimbabwe regarding bilateral obligations and further that this was contrary to public policy.

In the event, the applicant prayed for the setting aside of the arbitral award.

The first respondent has opposed the application. It has raised a number of points in limine.

(i)...,.

(ii) In relation to the second point in limine, the first respondent contends that clause 18 of the agreement provides that the parties irrevocably agreed that the decision of the arbitrator in any arbitration proceedings brought under the agreement would be binding upon each of them and that this was in respect of any dispute arising out of or in connection with the agreement including any dispute regarding its existence, validity, or termination.

Accordingly, the first respondent contends, the parties are bound by the provisions of clause 18 of the agreement, and, consequently, the applicant cannot have recourse against the award by virtue of these proceedings.

The first respondent contends, further, that, assuming that the parties do have recourse against the award, notwithstanding the provisions of clause 18, the application filed in casu does not disclose a cause of action as contemplated in Chapter 7 Article 34 of the First Schedule to the Arbitration Act as modified by S.I.208 of 1996.

The first respondent contends that, in terms of Article 34(5), it is only if the award was induced or effected by fraud that it can be said to have been contrary to public policy. However, so the argument goes, the applicant has made no such allegation. Accordingly, so contends the first respondent, there is no cause of action exhibited on the papers.

A party to an agreement which provides for relief by way of an award by an arbitrator has a right to have the award set aside as provided for in Article 34. It has been given legislative imprimatur under the Arbitration Act, and the respondent has not pointed out any authority which allows parties to an agreement to override provisions that have been spelt out in an Act of Parliament.

In this connection, I would want to quote from comments I made in Recoy Investments (Pvt) Ltd v Tarcon (Pvt) Ltd HH159-11 to the following effect:

“In my view, the respondent has a mis-apprehension of the law. The court has the jurisdiction to hear the matter where none of the parties has applied for a stay of the proceedings and a consequential referral to arbitration. Article 8 is clear and admits of no ambiguity. I am bolstered in this view by dicta from CLOETE JA in PCL Consulting (Pty) Ltd v Tresso Trading 119 (Pty) Ltd 2009 (4) SA 68 at 71G-72C to the following effect:

'The mere fact that parties have agreed that disputes between them shall be decided by arbitration does not mean that court proceedings are incompetent. If a party institutes proceedings in a court despite such an agreement, the other party has two options:-

(i) It may apply for a stay of the proceedings in terms of section 6 of the Arbitration Act 42 of 1965; or

(ii) It may, in a special plea (which is in the nature of dilatory plea), pray for a stay of proceedings pending the final determination of the dispute by arbitration.'

The definitive statement of the law in this regard is to be found in Rhodesian Railways Ltd v Mackintosh 1932 AD 359 at 370-371 where WESSELS ACJ said:

'All that section 6(1) lays down is that you cannot adopt the cheaper and speedier procedure therein provided when once you have delivered pleadings or taken any other step in the proceedings. If you have taken any step in the proceedings, then you can no longer adopt the speedier and less costly procedure of applying to the court to stay proceedings but you must file your pleadings in the ordinary way. In pleading, however, you can raise the defence that the case ought to be decided by arbitration, this can be done by a special preliminary plea.'”

The High Court, being a superior court of jurisdiction, has the power to hear any matter and any party unless its jurisdiction has been specifically ousted by statute.

In addition, Article 8 of the Arbitration Act permits the parties who have submitted a dispute for arbitration, and which process has now been brought before this court for the setting aside of any award resulting from such process, to apply to the court for a stay of those proceedings.

The powers granted to the court under such application are as follows:

“Arbitration agreement and substantive claim before court

(1) A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests, not later than when submitting his first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed.

(2) Where proceedings referred to in para (1) of this article have been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”

A reading of Article 8 above makes it clear that the court must stay proceedings upon the application of a party who wishes that the matter proceed to arbitration for resolution on the dispute. That, in my view, appears to be the only reason for the court's jurisdiction to be temporarily suspended.

Once the parties have referred the dispute to arbitration, and an award has been made, the jurisdiction of the court to decide on the award is unfettered.

This court is however seized with an application for the setting aside of an arbitral award. I therefore hold that this court has the jurisdiction to determine this matter on its merits.

Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15] allows for the setting aside of an arbitral award by this court in very restricted circumstances.

In casu, the applicant contends that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or that it contains decisions or matters beyond the scope of the submission to arbitration and that the award itself is contrary to the public policy of Zimbabwe.

Clause 18.1 of the service contract made a provision for the reference of any dispute thereunder to arbitration and that such arbitration proceedings would be final and binding upon the parties herein.

The exercise of power by the High Court, under Article 34 of the Arbitration Act, has already been discussed in the case of Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) where GUBBAY CJ said the following:

“Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching in its defiance of logic or accepted moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.

Although no moral turpitude whatsoever attached to the conduct of the arbitrator, I am satisfied that his award bears the adverse characteristics I have referred to. It is my belief that, in the circumstances pertaining, the award made results in so palpable and substantial an injustice to ZESA that for this court to uphold it would be to sanction a conflict with the public policy of Zimbabwe.”…,.

The principle enunciated in this judgment was confirmed in Delta Operations (Pvt) Ltd v Origen Corporation SC86-06.

It is therefore trite, that, under the law, the court is empowered to set aside an arbitral award if the applicant who wishes to have it set aside can establish that the award is in conflict with the public policy of Zimbabwe.

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of para (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”

The High Court is a superior court with inherent jurisdiction. 

Thus, it has the right to regulate its proceedings and judgements. This inherent jurisdiction includes the power to grant leave to have its judgments executed pending appeal.

In terms of the Magistrates Court Act [Chapter 7:10] the jurisdiction of the court is provided for as follows:

“11. Jurisdiction in civil cases

(1) Every court shall have, in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction -

(a) Excepting any other jurisdiction assigned to any court by this Act or any other enactment, the persons in respect of whom the court shall have jurisdiction shall be -

(i) Any person who resides or carries on business or is employed within the province;

(ii) Any partnership whose business premises are situated or, any member whereof resides, within the province;

(iii) Any person whatever, in respect of any proceedings incidental to any action or proceedings instituted in the court by such person himself;

(iv) Any person, whether or not he resides, carries on business, or is employed within the province, if the cause of action arose wholly within the province;

(b) With regard to the causes of action -

(i)…,.

(ii)…,.

(iii)…,.

(iv) In actions in which it is claimed a decree of divorce, judicial separation, or nullity of a marriage solemnized in terms of the Customary Marriages Act [Cap 5:07], including actions relating to the division, apportionment or distribution of the assets, whether movable or immovable, of spouses or former spouses of such marriages and the payment of maintenance in terms of the Matrimonial Causes Act [Cap 5:13].”...,.

The Magistrate's Court is a creature of statute and can only function within the confines and parameters set by the statute that creates it. It cannot grant to itself any powers not afforded it by the statute...,.

This is a labour dispute between the parties. A brief history of the matter is as follows:

The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."

(Nedlaw was the Corporation's holding company).

There was also provision for one month's notice of termination of the contract to be given by either side.

Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.

On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.

The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."

Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).

After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).

Thereafter, events developed as follows:

1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."

2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.

3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.

4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."

5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.

6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.

7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.

8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:

(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).

(b) Payment of emoluments from the date of illegal termination to date.

(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.

9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:

"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.

2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.

3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.

4. That there be no order as to costs."

Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.

I will deal with them in turn....,.

(B) REINSTATEMENT

It is quite obvious that the Corporation does not want to take Mr Moyana back.

For his part, Mr Moyana has tended to blow hot and cold. On the one hand he accepted his terminal benefits, including a refund of his pension contributions, after he was "dismissed" in May 1987. At times, in his argument, which is not always easy to follow, he seemed to accept that the termination of his employment was inevitable and acceptable to him. Thus, at p51 of the transcript of the submissions before the Tribunal (although it is headed "Labour Regulations Board" it is clearly the proceedings before the Tribunal) he is recorded as saying:

"In the final analysis also, the termination of the…, I think it was very fair. Secondly, the fact that they are saying: 'why did you not contest', whereas, in all honesty, in management, you would not want to be seen to be forcing yourself on people when it has become obvious the sun has set. All I can ask through your office, My Lord, is that they should desist from following me up. We should be allowed to part amicably…,."

A little later, he seems to go back on that statement and says categorically:

"I would like to be reinstated. "

Overall, however, one gains the very strong impression that he sees reinstatement as a bargaining counter. He wants to establish his claim to have been wrongfully dismissed, and it is in that sense, really, that he speaks of reinstatement. What he wants is to have the dismissal set aside, to have his financial rights determined, and then to part company with the Corporation.

It is important to clarify this attitude on his part because the Corporation is taking what might, in different circumstances, be regarded as a somewhat technical point against him.

They say that the Board had a discretion to reinstate him; it decided not to do so; he did not appeal against that decision; and therefore the Tribunal had no jurisdiction to reverse the decision.

The Board which made the decision not to reinstate was undoubtedly a "determining authority" as defined in terms of section 2. The Board is given the power, in section 111(2)(c), to order reinstatement in a job. Obviously, it must have a discretion in that regard. In this case, it decided not to do so on the grounds of incompatibility. That can hardly, in the circumstances, be described as a decision no reasonable Board could make.

No appeal was lodged in terms of section 40 of the Labour Relations (General) Regulations 1985, (S.I.368 of 1985) by Mr Moyana.

The Tribunal, which is a creature of statute and whose powers therefore must be founded within the four walls of the Labour Relations Act, has its powers defined in section 107 of the Labour Relations Act, which reads:

"In determining an appeal in terms of this Part, the Tribunal may confirm, vary, or set aside the decision appealed against and make an order accordingly, and may include in such order any order that to costs as it thinks fit."…,.

The decision of the Board, not to reinstate Mr Moyana, was not appealed against. He himself did not appeal at all, and the Corporation appealed only on other parts of the Board's determination.

It is true that the Corporation appealed against the date with effect from which reinstatement was refused (8 April 1988) and claimed it should have been as from 28 May 1987, but, that was not an appeal against the decision not to reinstate.

The Tribunal does not seem to have addressed itself to the legal implications of this question.

The judgment of the President does record that in terms of section 7(1) of the relevant Regulations (S.I.369 of 1985) "an appeal from a decision of the Board to the Tribunal shall be an appeal on the Record of the Proceedings before the Board and shall not be in the nature of a re-hearing…,."

This provision was, however, not considered in the context of whether the issue of reinstatement was before the Tribunal.

The Tribunal appears to have taken the view that if the dismissal was unlawful Mr Moyana was, ipso facto, entitled to reinstatement. They found his dismissal was unlawful and therefore they ordered his reinstatement.

It seems to me, with respect, that, in this, the Tribunal was wrong.

Reinstatement is not the only or the inevitable remedy for wrongful dismissal. It is a remedy. There is an alternative remedy, which is a claim for damages for wrongful dismissal.

The matter is expressed as follows in "Labour Law; Cases and Materials" by BENEDICTUS & BERCUSSON:

"The obvious remedy for unjustified ('unfair') involuntary termination is re-employment, if the employee so wishes, and, otherwise, compensation.

The first remedy is not available at common law.

The essentially reciprocal nature of contractual obligations means that it is impossible to force an unwilling party to remain bound to a contract against his will. This, in effect, gives a veto to either side to prevent the continuance of a contract of employment notwithstanding the possible merits of the other party's case for maintaining the contractual relationship.

Compensation, at common law, is minimal, being confined to the precise contractual loss suffered…,. Statute, as will be seen, has only partially overcome these limitations."

The authors then go on, at p394, to quote another book which says:

"Although reinstatement is clearly the primary remedy for unfair dismissal provided by law, very few successful applicants are awarded it. The usual remedy for successful applicants is compensation."

It would seem that the English legislation has more detailed provisions for compensation than ours, but, the point that I am making is that reinstatement is not the inevitable consequence of a finding of wrongful dismissal.

The Board decided against it, and the Tribunal had no jurisdiction to interfere with the decision in the absence of an appeal against it.

Towards the end of its judgment, the Tribunal reverted to this point. It said:

"We are unable to support the Board's finding that 'the two parties could no longer work together' on account of incompatibility. Mr Moyana has asked to be reinstated. We believe that had the position been that he was no longer prepared to work for the Corporation, he would not have prayed for this relief. In any event, incompatibility between an employer and an employee, even where it has been established, is not, in our law, a ground for the employer to terminate the contract of employment unilaterally."

This passage calls for comment in two respects:

(i) First of all, the Board's finding was not an incompetent finding. It was within the Board's powers to make such finding. That being so, the Tribunal had no power to question the finding in the absence of an appeal against it. Note that the Tribunal's review powers are very limited: section 24 of S.I.369 of 1985.

(ii) Secondly, incompatibility was not a ground upon which the employer had sought to terminate the contract of employment. It was a ground upon which the Board had decided not to order reinstatement.

I conclude, therefore, that, the question of reinstatement was not before the Tribunal and it had no jurisdiction to make an order on the subject.

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:

The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in 1992, she was confirmed as a permanent employee of the respondent. On some date in 1991, the applicant, or someone purporting to be her, filled out an employment form in which it was represented that the applicant had attended Lord Malvern High School between 1977 and 1980 and had passed three subjects at "O" Level. The form was not signed nor dated.

It is pertinent to note here, that, the applicant did not deny the respondent's averment that it was the applicant herself who filled out the form.

On 18 November 1999, the respondent's Personnel Manager requested the applicant to furnish proof of her qualifications. This, the applicant failed to do. She was then charged with misconduct before a disciplinary committee. The charges that were preferred against her were communicated to her by a letter dated 15 June 2000 that read, in part, as follows:

"RE MISCONDUCT CHARGES

1. Insubordination - wilful and unreasonable disobedience of a lawful order from a superior. Category I section I.

2. Theft, fraud, forgery, involvement in bribery, misappropriation, falsification of documents. Category I section 3.

3. Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied conditions of his/her contract of employment. Category 1 section 5.

In the letter dated 18th November 1999, from the Human Resources Manager, you were advised that the Chief Executive had requested that you submit proof of the 3 "O" Level passes that you had claimed to possess on joining the Board in 1991, and also in the interviews of 1996, by 26th November 1999. You, however did not submit these or offer an explanation by the due date.

The Regional Personnel Officer (Northern) then wrote to you on 4th January 2000, reminding you to respond in writing to the Chief Executive's request by 12th January 2000; which she set as the new deadline. However, you did not respond in writing as had been required. Your failure to respond as required is considered to be insubordination."

The Disciplinary Committee found her guilty of the alleged act of misconduct and recommended that her employment be terminated.

The applicant appealed against this decision.

In accordance with the provisions of the respondent's Code of Conduct, her appeal was noted to the Chief Executive in accordance with the respondent's Code of Conduct who dismissed the appeal.

The applicant then filed the above application for review.

The applicant alleged, as her grounds for review:

(i) Firstly, that the Disciplinary Committee that sat to hear her matter was not properly constituted; and

(ii) Secondly, that the decision of the respondent to dismiss her is grossly unreasonable.

The application was duly opposed.

In opposing the application, the respondent raised three preliminary issues:

(i) Firstly, the respondent argued, that, the applicant has approached the wrong forum for relief.

The respondent contended that the applicant ought to have noted an appeal to the Labour Relations Tribunal in terms of section 101(7) of the Labour Relations Act [Chapter 28.01].

The issue of whether or not, in labour issues, this court has concurrent jurisdiction with the Labour Relations Tribunal has exercised this court before. In my view, GILLESPIE J has put the issue to some rest in Zikiti v United Bottlers 1998 (1) ZLR 389. I can do no better than quote from the learned judge. This is what he had to say:

" The particular point concerning the bringing of review proceedings in the High Court, in connection with an employment dispute not yet resolved in a lower authority, is generally raised as an instance of a suggested obligation to exhaust domestic remedies before approaching this court.

The Labour Relations Act does not expressly require that the domestic or statutory procedures and remedies be exhausted before an approach is made to this court.

The question whether an intention to this effect is to be necessarily implied from the legislation has therefore exercised the court on occasion. It would appear, from the authorities, that, in employment disputes the court does not hold its common law jurisdiction in principle to be ousted or suspended pending the exhaustion of domestic remedies."

In my view, the point made by GILLESPIE J is that the court will not ordinarily close its doors to any litigant who is entitled to relief from it, but, in the exercise of its inherent jurisdiction to regulate and control its proceedings so as to prevent an injustice or abuse of its process, the court may withhold its jurisdiction.

A caution is however sounded in the judgment that the courts should sparingly exercise this equitable discretion to withhold its jurisdiction, as the courts of law should be open to all.

I agree with this view.

The jurisprudential basis supporting this view is obvious and has its foundation in the universally acclaimed right of every one to an effective remedy by the competent national tribunals for acts violating rights granted him or her by the laws of the land: Article 8 of the Universal Declaration of Human Rights (1948).

In the matter before me, no reason was advanced as to why I should withhold the court's jurisdiction. It has not been shown that recourse to the machinery set up under the Labour Relations Act will confer a more effective remedy to the applicant.

I therefore decline the invitation to withhold my jurisdiction in the matter.

The first applicant is a nominated Parliamentary candidate for the Movement For Democratic Change, the (“MDC”). He will stand for the Goromonzi West House of Assembly constituency seat in Mashonaland East Province. The second applicant is the Movement for Democratic Change, a political party which fielded candidates for the Presidential, Parliamentary, Senatorial and Local Council elections.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, which is responsible for the conducting of elections in Zimbabwe. The second respondent is the Registrar-General of Voters, responsible for the registration of voters, though he does so under the control and supervision of the first respondent.

The brief facts leading to this application are as follows:

The applicants, exercising their right under section 21(4) of the Electoral Act [Chapter 2:13], which I will refer to as the Electoral Act in this judgment, requested the respondents to supply them with electronic copies of the voters roll. They supplied the respondents with compact disks onto which the voters roll was to be copied. The applicants have since been given fifty compact disks, with voters rolls copied onto them - but in a format not acceptable to the applicants. They were advised that other disks could not presently be copied because of the breakdown of the respondents' computers.

The applicants, being spurred by the approaching election day on 29 March 2008, urgently want the Voters Roll, hence the filing of an urgent application. They seek an order compelling the respondents to give them electronic copies of the voters roll in a format they have specified.

Counsel for the respondents raised a point in limine.

He submitted that this court, being a creature of statute, does not have jurisdiction to determine issues arising from the provisions of section 21 of the Electoral Act as that section does not confer jurisdiction on the Electoral Court.

He submitted that this court can only exercise jurisdiction in cases where the Electoral Act specifically confers jurisdiction on it.

He further submitted that the Electoral Act specifies instances when the court has jurisdiction, meaning, in instances where jurisdiction is not specifically conferred the legislature did not intend to confer jurisdiction. He relied on the expressio unius est exclusio alterius rule of interpretation.

Counsel for the applicants, in response, submitted that this court was created to deal with electoral matters, and, therefore, has jurisdiction to hear and determine matters arising from failure to comply with any provisions of the Electoral Act.

He submitted that the use of the words “and other matters in terms of this Act”, means and other cases arising from this Act confers jurisdiction on this court in instances where the legislature did not specifically do so.

He summed up by saying the Electoral Court was created to hear and determine electoral cases.

He pointed out various provisions in which various officials are required to act in one way or the other and asked what would happen if they did not comply. He submitted that this court should intervene and order the officials to comply as should be done in this case.

Counsel for the respondents, in reply, submitted that the applicants are not left without remedy as they can apply to the High Court which has inherent jurisdiction and can hear and determine matters for which the Electoral Court has no jurisdiction.

Creature of Statute

This court was created in terms of section 161(1) of the Electoral Act. There is no doubt that it is a creature of statute.

As a creature of statute, it can only exercise the jurisdiction conferred on it by the statute which created it. Its powers are confined within the provisions of the creating Act.

In the case of Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)…, GILLESPIE J said:

“The concept of the rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal, or authority is a creature of statute and bound by the four corners of its enabling legislation.”

See also the cases of Chairman, Public Service Commission and Ors v Zimbabwe Teachers Association & Ors 1996 (1) ZLR 637 (S)…,; Harare City v TA Prop (Pvt) Ltd 1994 (2) ZLR 82 (S)…,; and Gwalazimba v PG Merchandising Ltd and Anor 1993 (2) ZLR 215 (S)…, where McNALLY JA said:

“This submission is undoubtedly correct. The Tribunal is a creature of statute and can only hear appeals as provided in the Labour Relations Act 16 of 1985.”

In the case of PTC v Mahachi 1997 (2) ZLR 71 (H)…, CHATIKOBO J, commenting on the powers of a court created by statute, said:

“The Tribunal was established by section 83(1) of the Labour Relations Act [Cap 28:01] (“the Act”). Being a creature of statute, the Tribunal has no powers other than those conferred upon it by the legislature either expressly or by necessary implication.”

The important observation made by CHATIKOBO J, which I respectfully agree with, is that the Act which confers jurisdiction on the creature of statute can do so expressly or by necessary implication. This means the enabling Act must be analysed to determine whether or not the implied jurisdiction, which, in this case, counsel for the applicants seems to rely on, was conferred. The implied jurisdiction must be discovered from the provisions of the Electoral Act.

The provision in dispute

Section 161(1) of the Electoral Act provides as follows:

“(1) There is hereby established a court to be known as the Electoral Court for the purpose of hearing and determining election petitions and other matters in terms of this Act.”

There is no dispute on the meaning of the part of section 161(1) which establishes the Electoral Court. It is common cause that this court has jurisdiction to hear and determine election petitions.

The dispute arises from the interpretation of the later part of section 161(1), namely, the words “and other matters in terms of this Act.”

Most of the words in that phrase present no difficulties as their meanings are obvious. They are not ambiguous as they admit of no other meanings besides their ordinary grammatical meanings. It is the word “terms” which the parties rely on in arriving at their respective constructions of the phrase in question.

Construction of the phrase

The meaning of the phrase “and other matters in terms of this Act” can be discovered by assigning an ordinary, literal, or grammatical meaning to every word in the phrase.

In Keyter v Minister of Agriculture 1908 NLR 522…, BALE CJ said:

“It is the duty of the court to give effect to every word which is used in a statute unless necessity or absolute intractability of the language employed compels the Court to treat the words as not written. (Salmon v Duncombe & Ors 7 NLR 182).

Another cardinal rule, in ascertaining the meaning of a statute, is that in construing the words used we are to ascertain the meaning from the words themselves, and not from what we imagine to have been the intention of the legislature.”

In the case of The Queen v Bishop of Oxford 4 QBD 261, it was said a statute “should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.”

In the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC)…, McNALLY JA 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 Pearson (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 the absurdity and inconsistency - but no further.'”

In this case, the word “and” in the phrase is a conjunction joining the other matters which this court can hear and determine to petitions, which are agreed can be heard and be determined by this court.

The word “other” simply means other than the petitions already referred to.

The word “matters” means other cases which can be heard and determined along side the petitions which it is common cause can be heard by this court.

The word “in” directs the inquirer to the source from which he or she can look for the “other matters” which can be heard and determined by this court.

The word “terms” refers to what qualifies a matter to be heard and determined by this court. It is the word whose true meaning has to be construed to determine whether or not this court has jurisdiction to hear this case….,.

The remaining words “of this Act” directs the inquirer to look within the Electoral Act for the other cases or matters which can be heard and determined by the Electoral Court.

In this case, the key word is “terms”.

Its interpretation should be based on its ordinary, literal, grammatical meaning.

In the case of Expedite Haulage (Pvt) Ltd v Scotfin Ltd 2000 (2) ZLR 113 (HC)…, CHATIKOBO J said:

“On the face of it, the contention advanced by Mr de Bourbon seems to be closer to the wording of the statute than that advanced by Mr Colgrave, and, of course, the cardinal rule of construction is that the words of a statute must be given their ordinary, literal, grammatical meaning, unless to do so would lead to a glaring absurdity.”

The same principles were expressed by the Supreme Court in the case of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S)…, where GUBBAY CJ said:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context, or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result. See Stellenbosch Farmers' Winery Ltd v Distillers' Corp (SA) Ltd & Anor 1962 (1) SA 458 (A) at 476E-F.

The same notion was expressed in another way by MARGO J in Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at 846G-H:

'Dictionary definitions of a particular word are very often of fundamental importance in the judicial interpretation of that word in a statute or in a contract or in a Will. Nevertheless, the task of interpretation is not always fulfilled by recourse to a dictionary definition, for what must be ascertained is the meaning of that word in its particular context, in the enactment, or contract, or other document.'”

The inquiry, according to these cases, must encompass the following rules of interpretation:

(a) The literal rule, to establish the ordinary, literal, grammatical or dictionary meaning of the word;

(b) Intention of the legislature to determine the contextual meaning of the word as guided by the clear intention of the legislature; and

(c) Other indicia or rules of interpretation to confirm the presence or absence of anomalies and absurdity in the resultant meaning established through the use of the above-mentioned.

The Literal Interpretation

It is trite that a court can rely on a dictionary meaning in the construction of statutes. See the cases of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) and Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

The ordinary grammatical meaning of the word “terms”, according to the Shorter Oxford English Dictionary, means:

“(i)(a) limit in space, duration, etc, that which limits the extent of anything; a limit, extremity, boundary, bound; (b) Utmost or extreme limit, end; (c) That to which movement or action is directed or tends, as its object, end or goal.

(ii) A limit in time; a space of time.

(iii) Limiting conditions pl. Conditions or stipulations limiting, what is proposed to be granted or done.”

The dominant meaning of the word “term” clearly has something to do with limiting, conditioning, bounding, and directing, whatever is to be done.

In the context of this case, this means the jurisdiction of this court, is as is limited, conditioned, bound, and directed by the Electoral Act. In simple language, the jurisdiction of the Electoral Court is as is provided by the Electoral Act.

The word “term” has acquired a well known judicial meaning.

In the Law of Contract, when one refers to the terms of a contract, the clear meaning is the conditions on which the contract is premised.

In a Will, it means as is provided by the testator in the Will.

Similarly, in an enactment, it means as is provided by the provisions of the enactment.

In the result, the literal, ordinary, plain, and technical meaning of the word “terms”, as used in section 161 of the Electoral Act, and in the context of the Electoral Act, means as stipulated, limited, or provided by the Electoral Act.

The Intention of the Legislature

Counsel for the applicants took this court through the various sections of the Electoral Act for which no court is vested with jurisdiction to enforce compliance in the event the officer who is required to act does not do so.

He argued that in such situations the Electoral Court has jurisdiction.

He obviously had in mind the implied intention of the legislature referred to in PTC v Mahachi 1997 (2) ZLR 71 (H) or the assumed or imagined intention of the legislature, referred to in Keyter v Minister of Agriculture 1908 NLR 522.

Counsel for the respondents argued that, in such circumstances, the aggrieved party should apply to the High Court which has inherent jurisdiction. He referred to section 13 of the High Court Act [Chapter 7:06].

It is correct that the High Court has inherent jurisdiction and can hear such cases, but, the issue is: does the Electoral Court have jurisdiction to hear such cases as submitted by counsel for the applicants?

This can be determined by ascertaining the expressed or implied intention of the Legislature from the construction of the sections which confer jurisdiction on the Electoral Court and a careful study and construction of the scheme of the Electoral Act.

This calls for an analysis of the sections conferring jurisdiction on this court and other courts.

In Part V of the Electoral Act, aggrieved parties are, in terms of section 25(6), referred to a designated magistrate for the province in which the affected constituency is situated for redress in the case of a dispute over claims for transfer of registration.

In Part VI, sections 27(3)(a) and (b), 28(3)(b) and 29 of the Electoral Act confers jurisdiction on a designated magistrate to hear appeals against objections by the Constituency Registrar or a voter.

Section 30(1) to (4) provides for the submission of a stated case by the designated magistrate to a judge of the High court for his opinion.

In Part X, section 44(7) confers jurisdiction on the Electoral Court to hear and determine petitions against the decision of the presiding officer over the election of the Council of Chiefs and of President and Deputy President of the Council of Chiefs and other Senator Chiefs.

In Part XI, section 46(19)(b) and (c) confers jurisdiction on the Electoral Court to hear and determine appeals from the Nomination Court.

In Part XIII, section 66(2) provides for the presence of an Electoral Court Judge at the drawing of lots to determine the winning candidate. Section 66(4) confers jurisdiction on the Electoral Court to hear and determine a petition against the decision of the Chief Elections Officer. Section 70(3)(b), (4), (5), and (8) confers jurisdiction on the Electoral Court to determine issues and make orders in relation to the destruction or preservation of electoral documents.

In Part XIV, section 81 confers jurisdiction on the High Court to, on convicting a person for inducing any person to obtain a ballot paper and influencing him or her to vote in favour of a particular candidate, to declare the convicted person disqualified from voting in any election for a period not exceeding five years.

In Part XVII, section 111 confers jurisdiction on the Electoral Court to hear and determine petitions on an undue return or an undue election of a person to the office of President, while section 112A as read with the Fifth Schedule, confers jurisdiction on the Chief Justice to preside over the electoral college for the election of a President.

In Part XVIIIA, in sections 133E and 138, confers jurisdiction on the High Court to impose additional punishment, of a civil nature, to a person it will have convicted for intimidatory practices. The same jurisdiction is conferred on the High Court in terms of section 150. Identical jurisdiction is conferred on the Electoral Court by section 155, but after the hearing of a petition after the election. It is clear the legislature conferred jurisdiction on two different courts on this aspect. The High Court deals with intimidatory and illegal practices before the elections, while the Electoral Court deals with the same situations and can impose the same additional penalties after the elections.

In Part XXI, sections 155 to section 158 confer jurisdiction on the Electoral Court to hear and determine petitions and applications and make appropriate orders specified in the various sections.

In Part XXII, section 161 establishes the Electoral Court, and, in subsection (1) and (2) specifies what it can or cannot do.

In Part XXIII, section 167 provides for the presentation of election petitions to the Electoral Court. Section 170(1) confers jurisdiction on the Electoral Court to hear and determine objections on the sufficiency of the security provided by an applicant to an election petition. Section 171(1) confers jurisdiction on the Electoral Court to hear and determine election petitions. Sections 177, 179, 180, and 181 provide for the other powers the Electoral Court may exercise in the hearing of petitions.

In Part XXIV, section 183 confers jurisdiction on the Electoral Court to hear and determine applications by persons convicted on perjured or false evidence, for the removal of the incapacity imposed at the time of conviction.

An examination of the sections conferring jurisdiction on the various courts clearly demonstrates the legislature's deliberate intention as to which court it intended to deal with which situation.

There is no doubt in my mind that where the legislature intended to confer jurisdiction on this court it did so by conferring it through a specific provision in the Electoral Act. There is clearly no room for the conferring of jurisdiction by implication.

The legislature's specific mention of the instances where this court has jurisdiction means where it did not confer jurisdiction it intended not to confer jurisdiction.

This would support counsel for the respondents submission that the application of the expressio unius est exclusio alterius rule to the specific conferring of jurisdiction in some instances means this court has no jurisdiction where it is not specifically conferred.

In the case of Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (SC)…, GUBBAY CJ said:

“To ascribe a sensible meaning to subs (5) and to avoid superfluity necessitates the legitimate recourse of construing the general words 'any sentence' in subs (6) as excluding the specific reference to 'a sentence of death' in subs (5). This is no more than an application of the rule embodied in the maxim 'expressio unius exclusio alterius.' It draws attention to the fairly obvious linguistic point that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded. See MAXWELL on The Interpretation of Statutes 12ed at p293.”

In the case of Eagle Insurance Co. Ltd v Grant 1989 (3) ZLR 278 (SC)…, KORSAH JA, commenting on the operation of the maxim, said:

“A rule which is variably resorted to in the interpretation of statutes, the expressio unius rule, is that the mention of one or more things of a particular class may be regarded as silently excluding all other members of the class.”

The use of the words “may be regarded as silently excluding”, leaves room for the inapplicability of the rule in some cases. This is confirmed in the case of Chivinge v Mushayakarara & Anor 1998 (2) ZLR 500 (SC); at p506E-F GUBBAY CJ said:

“The same result is arrived at, so it seems to me, by a cautious application of the maxim expressio unius est exclusio alterus: see Taylor v Prime Minister & Anor 1954 SR 94 at 165; 1954 (3) SA 956 (SR) at 965B-D; R v Ndhlovu (1) 1980 ZLR 96 (G) at 100A-D; Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S) at 596C-E; National Automobile & Allied Workers Union v Borg-Warner 1994 (3) SA 15 (A) at 26H–I.

The specific mention of the instances of permissible discharge of termination on notice by a permanent employee, to my mind, leads to the unavoidable inference that it was not the intention of the parties to the contract to allow termination on notice of a permanent employee.”

The need to exercise caution before relying on the expressio unius rule is because a conclusion based on it is a product of a logical deduction inferred from the specific mention of the other thing being an implied exclusion of that which was not mentioned.

In the case of Commissioner of Taxes v F Kristiansten (Pvt) Ltd 1994 (1) ZLR 412 (SC)…, the Supreme Court, commenting on the nature of the rule, said:

“It may be that one cannot rely on that uncertain principle of interpretation known as the 'expressio unius exclusio alterius' in this situation.”

The uncertainty of the expressio unius est exclusio alterius rule was again commented on by the Supreme Court in the case of Davies and Ors v Minister of Lands, Agriculture & Water Development 1996 (1) ZLR 681 (SC)…, where GUBBAY CJ said:

“Mr Anderson's counter to this argument was that the principle expressio unius est exclusio alterius was one of limited application to be applied with great caution. This is of course true, but, whereas here something which is not on the face of it acquisition is specifically stated so to be, there is a strong indication that acquisition is to otherwise be given its ordinary meaning.”

In the present case, a careful reading of the sections of the Electoral Act conferring jurisdiction on this court and other courts, together with section 161 of the Electoral Act, whose interpretation restricts the search for jurisdiction within the Electoral Act, the express mention of the instances where this court has jurisdiction is a clear indication that where no jurisdiction was specifically conferred the legislature did not intend to confer jurisdiction on this court. In the context of the whole Act, the words “and other matters in terms of this Act” means and other matters in which jurisdiction has been conferred by provisions of this Electoral Act.

Other indicia

Counsel for the applicants referred this court to section 157 of the Electoral Act and submitted that reference in it to “petitions and applications” when no specific jurisdiction in terms of the Act is conferred on this court to hear and determine petitions means applications such as the applicant's are the “other matters” which can be heard and be determined by this court.

This tends to suggest that the literal meaning, as established above, should include applications as provided in section 157.

The expressio unius est exclusio alterius rule would not be applicable as the mentioning of applications, without providing for them in any specific sections of the Electoral Act, would leave this court with jurisdiction in circumstances mentioned by counsel for the applicants. That would not be consistent with the plain meaning of the phrase “and other matters in terms of this Act.” It would entitle this court to depart from the plain, literal, and grammatical meaning to avoid the inconsistency or the absurdity: see the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

Counsel for the first respondent submitted that the word “application” means petition. He therefore argued that its being mentioned in section 157 is of no significance. He relied on section 15(2) of the Interpretation Act [Chapter 1: 01] which provides as follows:

“Any reference in an enactment to a petition to a court shall be construed as a reference to an application to the court or to a judge, magistrate, or other judicial officer of the court, made in accordance with rules of the court.”

Counsel for the first respondent's submission is persuasive but does not explain why the legislature would convey the same concept using two different words of the same meaning in succession. This would suggest that one of the words is superfluous. If the use of both words was out of caution then why would the legislature use the word “or” between them suggesting that it should be one or the other?

A careful reading of section 157 of the Electoral Act is called for. It provides:

“(1) When it appears to the Electoral Court, either on application or upon an election petition, that –

(a) Any act or omission of a candidate at an election or of his or her chief election agent or of another agent or person, which but for this section would be an illegal practice, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; and

(b) By reason of the circumstances it would be just that the candidate or his or her chief election agent or other agent or person, or any of them, should not be subject to any of the consequences under this Act of the said act or omission;
the Electoral Court, may make an order allowing the act or omission to be an exception from the provisions of this Act which would otherwise make the act or omission an illegal practice, and thereupon the candidate, agent or person shall not be subject to any of the consequences under this Act of the said act or omission.

(2) Where application is made for relief in terms of subsection (1), the Electoral Court, before hearing the application, shall be satisfied that reasonable notice of the application has been given in the constituency or area in which the election was held.”

The clear meaning of section 157 of the Electoral Act is that the Electoral Court, may, during the hearing of a petition or when an application is made to it in terms of sub-section (2), make an order allowing an otherwise illegal practice an exception to the provisions of the Electoral Act.

The provisions of section 15 of the Interpretation Act are therefore not applicable in this case.

Subsection (2) specifically provides for the making of an application to the Electoral Court, and confers jurisdiction on it to hear and determine such applications.

I, with respect, do not agree with both counsel for the applicants and counsel for the respondents' respective interpretations of section 157 of the Electoral Act: therefore, the interpretation of the words “and other matters in terms of this Act,” as discussed above, remains unaffected by the provisions of section 157 of the Electoral Act.

Even if subsection (2) of section 157 had not clarified the issue, there are other sections of the Electoral Act which confer jurisdiction on this court to hear and determine applications.

Section 179(2) of the Electoral Act provides for an application for substitution of a petitioner. Section 183 provides for an application to the Electoral Court for the removal of any incapacity imposed upon conviction based on perjured or false evidence.

It is therefore beyond doubt that the instances in which this court has jurisdiction to hear and determine applications are specifically provided for in the Electoral Act.

As already indicated, that means all the instances in which the legislature intended to confer jurisdiction on this court are specified leaving no room for this court to assume jurisdiction in circumstances referred to by counsel for the applicants.

Counsel for the respondents sought costs on the legal practitioner and client scale against the applicants on the basis that his clients were unnecessarily dragged to a court which does not have jurisdiction to hear the application.

It is true that, with careful reading of the Electoral Act, the applicants should have known that they were suing the respondent in a court which did not have jurisdiction. It is however apparent from counsel for the respondents own failure to appreciate that the Electoral Act confers jurisdiction on this court to hear applications that the Electoral Act, as recently amended, is still to be fully understood by legal practitioners - especially those who infrequently appear before this court.

There is need for guidance through the judgments of this court.

I can therefore not grant punitive costs in circumstances which clearly call for the guidance of this court.

In the result, the applicant's application is dismissed with costs.

It is in my view trite that this court, being a creature of statute can only exercise those powers that are expressly granted to it by the enabling statute.

To discharge the constitutional mandate of enforcing or securing the enforcement of fundamental human rights and freedoms enshrined in the Constitution, the Court must exercise the power expressly conferred on it. 

Its duty is to determine the question whether the conduct of the State, forming the subject of complaint, contravenes the fundamental right or freedom sought to be enforced. It must come up with an affirmative or negative answer to that question after consideration of all the circumstances of the case.

It is unthinkable, in the circumstances, that the Court can restrict the exercise of the power and not inquire into the method by which the presence of an accused person before it was secured. It has to inquire if the allegation is that the conduct of the public officers involved in bringing the accused person violated his or her fundamental right.

The only occasion in which the Court can decline to exercise its powers, under section 24(4) of the Constitution, is if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person under other provisions of the Constitution or under any other law. 

What it cannot do is to decline to exercise the power to determine the question whether or not the fundamental right has been or is being or is likely to be contravened by the conduct of the State forming the subject of complaint properly brought before it.

Section 24(4) of the Constitution gives the Court a wide discretion as to the choice of a practical and effective remedy which can appropriately redress a violation of a fundamental human right or freedom....,.

In selecting an appropriate remedy under the Constitution, the primary concern of the Court must be to apply the measures that will best vindicate the values expressed in the Constitution and to provide the form of remedy to those whose rights have been violated that best achieves that objective. 

This flows from the Court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of the country: Osborne v Canada (1991) 82DLR (4th) 321…,.

The respondents raised points in limine objecting to the right of the applicant to approach this court since, being a soldier, he is barred by section 18(a) of the Defence Forces (Discipline) Regulations from demanding a right to be tried by a civil court.

The answer to the point is simply that, as his status is the essence of this application, this provision is clearly not applicable where an applicant seeks a declaratur that he is not a soldier and, therefore, not subject to the Defence Act [Chapter 11:02].

The plea to jurisdiction, as this is what this will be in the martial court, can be raised and tried in that court where a court, such as the present, is seized with the matter.

The defendant was married to one Clemens Westerhoff in terms of the marriages Act [Chapter 5.11]. The marriage was dissolved by this court on a date that is not readily ascertainable, and is, any event, immaterial for the purposes of this trial.

During the subsistence of the marriage, the parties had acquired an immovable property called Stand 491 Mount Pleasant Township 13 of Lot 33 of Mount Pleasant. This they set up as the matrimonial home. Title in the property was held freehold by a company called Westerhoff Investments (Private) Limited. It is common cause that the parties regarded the company as their joint alter ego, set up primarily for the purposes of holding title in the property.

Prior to divorce, and with the assistance of the judge who presided over a pre-trial conference in their matter, the parties settled as between themselves, a consent paper, which disposed of the issues of paternity and maintenance for the minor child of the marriage and the distribution of the joint estate. The consent paper was, at the time of the divorce, incorporated into and became part of the divorce order.

Regarding the fate of the matrimonial home, the court ordered as follows, following the wording of clause 5 of the consent paper:

“5. After the results of the paternity tests, the following scenario will obtain:

(a) The property known as No.29 Morningside Drive, Mount Pleasant, Harare, shall be valued for commercial purposes and the value shall be divided in such a manner that:

(i) If the plaintiff is the natural father of the minor child, plaintiff gets a 40% share, the defendant a 40% and the minor child 20% share, and the defendant shall pay to the plaintiff such amount as may be the difference between the plaintiff's 40% share and the sum of $110 million which is the lump sum payment for the maintenance of the minor child in full and final settlement as provided for in clause 2 hereof; and

(ii) If the plaintiff is found by results of the tests not to be (the) natural father, then the ratio shall be 60% for the plaintiff and 40% for defendant.

(b) The valuation provided for in clause 5(a) hereof shall be conducted by an independent valuer appointed by the Master of the High Court from his list and such valuation shall be conducted and concluded within 7 days of receipt by plaintiff (who shall serve the results on the defendant's legal practitioner within 7 days of receipt of them) of the results of the valuation.

(c) The costs of the valuation shall be borne by plaintiff and defendant in the ratio of 50% plaintiff and 50% defendant. The valuation costs shall be paid for in full by plaintiff to facilitate the process and he shall be refunded his share by defendant at the time that defendant pays what is due to plaintiff either in terms of clause 5(a)(i) or clause 6.

(d) Should the defendant fail to pay the amount payable to plaintiff within 12 months of the date of valuation, then, and in that event, and without notice to defendant, the plaintiff shall be entitled to sell the immovable property, and from the proceeds pay $110 million as provided for in clause 2, to defendant for the minor child and 40% of the proceeds to the defendant as her share. In a sale in terms of this clause, the defendant herein irrevocably appoints her legal practitioner, failing him the Sheriff or his lawful deputy to sign all documents necessary to effect the sale and resultant transfer, and the rates duties and other taxes payable by reason of the transfer including transfer fees shall be paid from the proceeds of sale.

6….,.

7….,.

8….,.”

It is common cause that in January 2006, the property was evaluated for the purposes of clause 5(a) of the divorce order. This was to set the value of the property at which the plaintiff before me, then defendant, could “buy off” her former husband's share in the property to enable her to acquire joint title with the minor child in the property, to the exclusion of her former husband. The defendant had a year in which to do this and the clock started ticking against her in January 2006.

It is further common cause that the defendant failed to raise the requisite funding necessary to bring into effect the provisions of clause 5(a)(i) of the order. She could not buy out her former husband and her failure to raise the necessary funding triggered the provisions of clause 5(d) of the divorce order. In terms of this clause, the property had to be sold and the proceeds parceled out in a pre-determined ratio.

Again, it is not in dispute that in the course of time, the property was sold to the plaintiff. Transfer of title was conveyed to the plaintiff, and, in due course, the plaintiff sought the eviction of the defendant from the property.

The defendant resisted the plaintiff's claim for eviction and this is the suit that came before me.

In defending the eviction summons at the instance of the plaintiff, the defendant pleaded that the agreement of sale to the plaintiff was defective, transfer to the plaintiff was fraudulently procured and was to the prejudice of the defendant and the minor child of the marriage. In the plea, the defendant prays for the sale and subsequent transfer of the property to be set aside.

At the pre-trial conference of the matter, where, in terms of our procedures, all legal issues ought to have been crystallized, the matter was referred to trial on the following issues:

1. Whether or not the agreement of sale entered into by and between the plaintiff and Westerhoff Investments (Private) Limited in respect of the property known as No.29 Morningside Drive, Mt Pleasant, Harare, and its subsequent transfer by the latter to the former, is valid at law.

2. Whether or not the plaintiff is entitled to an order for the eviction of the defendant from the premises.

3. Who between the parties should bear the costs of suit?...,.

It would appear that in terms of the defendant's summary of evidence, and indeed according to the evidence led at the trial, the defendant took issue with the fact that she was not consulted on the ultimate price at which the house was sold to the plaintiff. She is of the view that the property was sold at an unreasonably low price to her prejudice as she then could not buy another property from her share of the proceeds....,.

To substantiate its claim, the plaintiff first called Joseph Mandizha. He was approached by a third party to act on behalf of the defendant's former husband. He was instructed to carry out the terms of the divorce order as between the parties and as it related to the distribution and disposal of the former matrimonial home.

In January 2007, the witness advised the defendant that he had been instructed to cause the sale of the property. His instructions had been for him to proceed without informing the defendant as her time to act had come and gone by. He met with the defendant and her legal practitioner and they discussed the matter. He informed the defendant and her legal practitioners on how he intended to dispose of the property. He indicated to the defendant that while clause 5(d) did not place any obligation on him to consult her in disposing of the property, he would nevertheless keep her informed of developments out of courtesy.

Before putting up the property for sale, the witness caused a market appraisal of the property to be done. The estate agents that were approached to carry out this appraisal included Heaven on Earth, an agency in which he is the majority shareholder. After the appraisal, instructions were given to Heaven on Earth to sell the property. It is at this stage that reports were received to the effect that the defendant was objecting to the mandate given to Heaven on Earth Real Estate to sell the property. She sought to introduce a new agent to handle the sale.

Undeterred by the efforts taken by the defendant to stall the selling of the property, the witness had the property sold to the plaintiff in June 2007. The defendant was advised of the sale of the property through correspondence to her legal practitioners. Requests were made for the attendance of the defendant upon the witness for the signing of the agreement of sale. It is at this stage that the defendant intimated that the property could be sold for a higher price. It was indicated to the witness, by the defendant's legal practitioners, that, in view of the prices she was expecting, she was unlikely to sign the agreement of sale which reflected a purchase price of $13 billion. He received the purchase price for the property and then proceeded to facilitate the registration of transfer of the property to the plaintiff.

In disposing of the property, he never had sight of the Articles of Association of the company that held title in the property. He merely followed the dictates of the court order as to how the property was to be disposed and the proceeds distributed between the divorced parties and their minor child. While the parties held a meeting before the property was sold, it was never his intention to re-negotiate the dispute between the parties or to be taken outside the provisions of the divorce order. His instructions were not to revisit the distribution of the property.

When he was genuinely convinced that the defendant would not sign the agreement of sale, he requested the Deputy Sheriff to sign on her behalf in accordance with the court order.

The witness gave his evidence well and was very candid with the court. His explanations were full and while one may not agree that it was prudent of him to instruct his own agency to sell the property, one cannot, on that basis, find that he was an unreliable witness.

Next to testify on behalf of the plaintiff was one Tongoringa Mubaiwa. He is an estate agent working for Heaven on Earth Real Estate. He handled the sale of the property in dispute. Prior to putting up the property for sale he did a market appraisal of the property. He compiled a report of his findings. He was then given instructions to market the property which he did. Eventually he sold the property to the plaintiff. He drafted the agreement of sale which was signed in due course.

The witness gave his evidence well. He fared well under cross-examination. His answers and explanations were easy to follow. I find him a credible witness.

The plaintiff called Muriel Chengetai Dowa as its third witness. She represented the directors of the plaintiff in the purchase of the property.

She was under instructions from the plaintiff to look for a property. She, at one stage, responded to an advertisement by Heaven on Earth for a property in Mt Pleasant. The deal fell through. She then advised the estate agency to contact her should they have another property in the same area for sale. After some time, she was informed of the property in dispute. She was advised that the property was being sold as a result of a divorce. She could not view the property but was shown pictures of the same. The directors of the plaintiff advised her to seek legal advice before proceeding. She did and proceeded to buy the property. Eventually, the property was transferred to the plaintiff and when she tried to gain access to the property, after transfer, she was denied same by the defendant.

I find no fault with the evidence and manner of testifying of this witness. I shall rely on her evidence.

After the evidence of this witness, the plaintiff closed its case.

The defendant called one Bruce Beaven Mujeyi to give evidence first. He was acting as the legal practitioner of the defendant during the hearing of the divorce matter and was especially instructed to deal with the matter of the disposal of the matrimonial home.

At the time he received instructions to act in the matter, the matter had received a lot of publicity and tensions were high on either side. The legal practitioner who had acted for the defendant's husband during the divorce proceedings had renounced agency and he had to deal with Mr Mandizha, who, like him, had been instructed to act in the matter after the divorce had been granted. Mr Mandizha wrote to the defendant advising her that he was now handling the matter. He responded to the letter by telephoning Mr Mandizha. They agreed to meet. In view of the fact that neither he nor Mr Mandizha had handled the much publicized divorce, he suggested that the best way forward was for the parties to negotiate their way through the disposal of the former matrimonial home. He was aware of the divorce order and the consent paper on which the order was based.

In the meeting, Mr Mandizha agreed to keep him abreast of developments as he had the company documents and the Deed of Transfer in respect of the property. He also understood that the draft agreement would be forwarded to him for his input.

Regarding the agency of Heaven on Earth in the matter, the defendant was clearly uncomfortable that an agency in which Mr Mandizha had an interest should be used to sell the property. On the instructions of the defendant, he addressed a letter to Mr Mandizha expressing these concerns. When Mr Mandizha responded showing little concern for this since his client had no problem with the arrangement, he filed an urgent application on behalf of the defendant seeking to interdict Heaven on Earth from proceeding. Regrettably, the matter was not determined as the judge before whom the urgent application was placed ruled that the matter was not urgent as there were other remedies available to the defendant.

His further understanding was that if the property was to be evaluated, this had to be done by an estate agent on the Master of the High Court's roll.

The defendant also informed him that she had problems with people coming to view the house. Since the parties had agreed to negotiate, they had not agreed on who was to carry out the evaluation of the property. His client was aggrieved by this as it went against the spirit of the meeting while Mr Mandizha was equally aggrieved by what he perceived as lack of co-operation from the defendant. He was somewhat caught in the middle.

On 25 June 2007, he received notification that the property had been sold and requesting his client to sign the draft agreement of sale. He had not been shown a copy of the draft. He was constrained to write to Mr Mandizha informing him that he could not sign the agreement on behalf of his client; that his client was out of the country; and that she would take issue with the price at which the property had been sold. From the response he received, he gained the impression that he should wait for Mr Mandizha's further advice. The letter read:

“Your letter of 26 the instant received in fax form refers. (Sic)

We advise that it has been referred to our client. We will revert to you once his instructions are to hand.”

When his client returned, he contacted Mr Mandizha to advise him that the parties could now move forward. He was advised that the property had been sold. For his client's signature, Mr Mandizha had approached the Deputy Sheriff. He then advised his clients of the developments and the two parted company after he felt that it was best that another law firm takes over the matter as the defendant felt that she had been let down.

The witness gave his evidence well. He was quite clear in his responses to questions and while his reading of the divorce order may have been different to mine, in some respects, that is not a basis for impugning his credibility.

The defendant also gave evidence.

During the subsistence of her marriage to her former husband, the two bought a property that was registered in the name of a company. At the time of the divorce, the parties entered into a consent paper.

She tried to raise money to “buy the defendant out” but failed. She is living openly with HIV/AIDS and was not in gainful employment at the time. When she realized that she could not raise the necessary funds to buy him out, she tried to sell the property within the one year stipulated in clause 5 of the divorce order. She failed.

In January 2007, she received a letter from Mr Mandizha advising her that he wanted to sell the property. She attended a meeting with Mr Mandizha in the company of her legal practitioner. It was agreed at the meeting that the fighting between the parties should come to an end; that the parties would henceforth resolve all issues amicably; and that the parties would be in constant communication over the disposal of the former matrimonial home. At the meeting, no mention was made of the estate agency that would dispose of the property.

A day after the meeting, an agent from Heaven on Earth came to the property to carry out an evaluation of the property. She allowed him in. Later on, she did not open her gate to him and to people who wanted to view the property. She had issues with the whole process as she had not received the valuation report to compare it with her own idea of how much the property should fetch. When she finally received the evaluation report, she then realized that Mr Mandizha was one of the directors of Heaven on Earth. She raised the issue with her legal practitioner. She felt that there was an obvious conflict of interest in that Mr Mandizha represented her former husband, was selling the property through his agency, would do the conveyancing, and then distribute the proceeds from the sale to the parties as between the parties and the minor child. The matter came to court, but, unfortunately, the urgent application was not granted.

While waiting for developments in the matter, she instructed her lawyers to place a caveat against title to the property as she felt that she had real rights in the property that needed protection. She was also protecting the interests of the minor child.

Some time later she sent an e-mail to her lawyer suggesting that an independent estate agent be appointed to handle the sale. She suggested one. She copied the email to Mr Mandizha. In the e-mail she also gave her own suggestion of the fetching price for the property.

She left Harare for some time and when she returned she was advised that the property had been sold. She was not happy. She went to her legal practitioner and asked him to stop the transfer and he filed an urgent application. She went to the Anti-corruption Unit and lodged a complaint. Before the urgent application to stop the transfer could be heard, Mr Mandizha appeared and showed them the Deed of Transfer. She then withdrew the case.

At one point she expected her former husband to call for a company resolution on the disposal of the property.

In her view, her former husband did not comply with the court order from the beginning. Her legal practitioners ought to have been shown a copy of the draft agreement. They were not. At the same time she was also looking for another house to buy. The price fetched for the former matrimonial property was not sufficient to meet her obligations in procuring another property.

In conclusion, she prayed for an order setting aside the sale and transfer to the plaintiff and for the property to be resold under the supervision of the Master of this court.

The defendant was understandably highly emotional when she gave her evidence. This however did not deter her from giving her opinion on how the former matrimonial home should have been disposed of. Her testimony was to a large extent corroborated by that of her former legal practitioner. I have no cause to disbelieve her on fact. Due to the emotion which the defendant testified and presumably which she attaches to this matter, I have reproduced her testimony in greater detail than for any other witness deliberately as I shall try and examine each issue that she has raised in her evidence and upon which she rests her defence.

It is not in dispute that the plaintiff has brought the rei vindicatio against the defendant.

As aptly summarized by counsel for the plaintiff, in his closing submissions, the plaintiff has approached this court as an owner of the property to seek the ejectment of the defendant simply on the basis that it is the owner and is thus entitled, as such, to enjoyment of its property.

The rei vindicatio is an action that is founded in property law. It is aimed at protecting ownership. It is based on the principle that an owner shall not be deprived of his property without his consent. So exclusive is the right of an owner to possess his or her property that, at law, he or she is entitled to recover it from wherever found and from whomsoever is holding it without alleging anything further than that he or she is the owner and that the defendant is in possession of the property. Thus, it is an action in rem enforceable against the world at large.

This is settled law in this jurisdiction which hardly requires authority. See Sibanda v The Church of Christ 1994 (1) ZLR 74 (SC); Musanhi v Mt Darwin Rushinga Cooperative Union 1997 (1) ZLR 120 (SC); Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S); Jolly v A Shannon & Anor 1998 (1) ZLR 78 (HC); and Stanbic Finance Zimbabwe Ltd v Chivungwa 1999 (1) ZLR 262 (HC).

The bedrock of all the above decisions is Chetty v Naidoo 1974 (3) SA 13 (A) where…, JANSEN JA had this to say:

"It is inherent in the nature of ownership that possession of the res should normally be with the owner, and, it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner."

There are primarily two defences to the rei vindicatio, each aimed at destroying each of the two essential elements of the action;

1. The first one seeks to destroy the claim of ownership completely by denying that the plaintiff is the owner of the property in question or seeks to diminish his rights in the property by admitting his or her ownership but by alleging that the plaintiff has parted, under some recognized law, with the right to exclusive possession of the property.

2. The second defence, of course, is to deny possession of the property at the time the action is brought or the claim is instituted.

There are no equities in the application of the rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it.

It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership.

The application of the principle conjures up in my mind the most uncomfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession and the rightful owner cries to the mother for intervention, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the age and size of the owner-child or the number of lollipops that the owner-child may be clutching at the time. It matters not that the possessor child may not have had a lollipop in a long time or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it.

In casu, the plaintiff has not denied that the plaintiff is the owner of the property. She has not denied that she is in possession of the property in issue. She has however sought to attack the right of the plaintiff to exclusive use of the property on the basis that she was unfairly treated by her former husband and his agents when the property was disposed of.

In my view, the defendant's case is hampered by the application of three legal principles.

(a) Firstly, she is relying on the consideration of equities in the matter to deny the plaintiff exclusive enjoyment of its property.

I repeat her evidence in this regard. She could not raise enough funds to purchase her former husband's share in the property as she was not in gainful employment at the time. She could not raise any loans as she is publicly known to be living with the HIV/AIDS virus. She intended to purchase another property for herself and for the minor child of the marriage. She could not do so from the proceeds of the sale of the property as her share was too low. The success of this suit against her will literally make her and the minor child of the marriage homeless.

On the other hand, the plaintiff has bought the property for investment purposes. It does not require the property for its own accommodation but as an income-generating investment. Thus, on equities alone, the defendant has a strong case.

Having heard and seen the defendant testifying and having listened to the impassioned plea that she was making to the court for a break for herself and the minor child of the marriage and having heard the anguish in her voice, I would have, if I had any, used my discretion in her favour and granted her prayer.

I have none. The law gives me none. I have no power to abrogate any to myself to change the principles of the rei vindicatio to bring in the consideration of equities into the matter. My hands are tied. I must apply the law that denies her a remedy even if I am keenly aware of her circumstances....,.

I have been referred to two decisions of this court that seem to go against the finding that I make in this matter. See Ndlovu v Ndlovu HH15-04 and Chapeyama v Chapeyama HH96-05.

In Ndlovu v Ndlovu HH15-04 I made the finding that the personal rights that the wife had in that matter were equal to the personal rights that the third party had from his agreement of sale with the respondent/husband. It is worth noting that in that case, no transfer of the property had been effected in favour of the third party when the wife/applicant approached the court for relief. The facts of that matter are therefore distinguishable from the facts in this matter. The competition in that case was between two equal rights. The applicant wife and the respondent/purchaser had personal rights against the respondent/husband, and, on a balance of equities, the applicant succeded.

In Chapeyama v Chapeyama HH96-05 the suit was between the former spouses, and, in my view, GOWORA J correctly held that as between the two of them the wife had breached the terms of the divorce order in having transfer registered in her favour before first affording her former husband the right to purchase her out. She therefore ordered the two parties to proceed in terms of the divorce order.

In any event, the above two cases were each instituted by the wives to protect their rights in the properties in question. The causes of action in both cases were different and called for different considerations. As indicated above, the applicant in this matter is bringing a rei vindicatio. The considerations that I have to take into account when dealing with this specific cause of action are different from the considerations that arose in the above cases. Such is the law....,.

1. The defendant and all those occupying through her are to give vacant possession of the property called Stand Number 491 Mount Pleasant Township 13 of Lot 33 Mount Pleasant to the plaintiff within 30 days of this order failing which the Deputy Sheriff is hereby authorised to evict the defendant and all those occupying through her from the property and give vacant possession to the plaintiff.

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”...,.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

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 jurisdiction with other bodies and tribunals set up by law, this court may, in its discretion, withhold its jurisdiction to allow the inferior tribunal to complete its processes. The court has, at times, withheld its jurisdiction to allow domestic and statutory remedies to be exhausted.

The test as to when this court will withhold its jurisdiction is, in my view, well settled.

In a judgment that has since been endorsed by the Supreme Court, MTAMBANENGWE J observed, in Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H)…, that, where domestic remedies are capable of providing effective redress in respect of the complaint, and the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so: see Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S).

The Juvenile Court made a more serious error when it heard the applicant's application when it had no jurisdiction to hear such an application. In terms of section 9(1) and (2) of the Guardianship of Minors Act [Chapter 5:08], the Children's Court can only hear applications for guardianship by relatives, other persons having care and custody of the minor, or a probation officer. It can only hear such an application if the minor has no natural guardian or tutor testamentary. Subsections 9(1) and (2) of the Guardianship of Minors Act [Chapter 5:08] provide as follows –

“(1) Without prejudice to the rights powers, and privileges of the High Court as upper guardian of minor children, and the Master, in terms of s74 of the Administration of Estates Act [Chapter 6:01], the children's court may, on application in terms of this section, appoint a fit and proper person to be the guardian of a minor who has no natural guardian or tutor testamentary.

(2) Where a minor has no natural guardian or tutor testamentary –

(a) A relative or person having the care and custody of the minor; or

(b) A probation officer;

may apply to the children's court by way of an application lodged with the clerk of that court for the appointment of a person as guardian of the minor, and such application may propose the appointment of a specified person as the guardian.”

This means the Juvenile Court can only exercise jurisdiction and appoint a guardian for a minor child if that child has no natural guardian. In this case, the applicant is the minor child's natural mother, and, therefore, the child's natural guardian. Applications to the Juvenile Court in terms of section 9(2)(a) and (b) of the Guardianship of Minor's Act [Chapter 5:08] can only be made by a relative or person having the care and custody of the minor, or by a probation officer. It cannot be by the minor's natural guardian because what qualifies such an application is the absence of a natural guardian or tutor testamentary. This is confirmed by section 3 of the Guardianship of Minor's Act [Chapter 5:08] which provides that –

“Where the parents of a minor –

(a) Are living together lawfully as husband and wife; or

(b) Are divorced, or are living apart, and the sole guardianship of the minor has not been granted to either of them by order of the High Court or a judge;”....,.

This means guardianship disputes between the minor's natural parents are determined by the High Court or a judge of the High Court. The Juvenile Court did not, therefore, have jurisdiction to hear the applicant's 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.

Counsel for the applicant, relying on Lloyd Guwa (2) Hazel Claris Kumire v Willoughby Investments (Pvt) Ltd SC31-09, said, unlike the High Court, the Supreme Court had no inherent jurisdiction. He said it was a creature of statute whose powers are clearly defined in the Supreme Court Act [Chapter 7:13].

The third was that the court did not have jurisdiction to deal with the application.

The last preliminary issue was that this court did not have authority to restore the status quo ante because in so doing it would grant the applicant the right to stay on the property.

It seems to me that this court has the jurisdiction to entertain spoliatory proceedings. A plethora of cases have set out the basis for granting such an extraordinary remedy. It is to prevent self-help. It seeks to encourage the despoiler to have recourse to the due process. The restoration of the despoiled party is not permanent but temporary. It does not stop the despoiler from seeking the proper eviction of the despoiled party.

The applicant argues that a Magistrate Criminal Court has no jurisdiction to grant a civil remedy such as eviction. And, even if, according to the applicant, such criminal court were to put itself in the shoes of a civil court, it still would not have jurisdiction to order execution pending appeal as the monetary value of the land or the occupation concerned far exceeds the monetary jurisdiction of the Magistrate Civil Court.

Exclusion of Ordinary Courts

This point is premised on Article 62 of FIFA Statutes which provides -

“1. The Confederations, Members and Leagues shall agree to recognize CAS as an independent judicial authority and to ensure that their members, affiliated players and officials comply with the decisions passed by CAS. The same obligation shall apply to licensed match and player's agents.

2. Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations.”…,.

This court cannot decline to exercise jurisdiction in football matters on account of FIFA statutes. FIFA statutes do not oust the inherent jurisdiction of the court. The statutes are binding on its affiliates and not this court. FIFA statutes create a disciplinary dispensation for its members. I associate myself with KAMOCHA J in Khami United Football Club v Zimbabwe Football Association HB22-10 (HC 589/10) on this point.

At the hearing of this application, counsel for the respondents raised a point in limine as to the jurisdiction of the court to hear and determine what he referred to as a political question.

He argued that Amendment Number 19 to the Constitution, which inserted Schedule 8 of the Constitution of Zimbabwe was driven by Parliament's intention to give effect to the Global Political Agreement (GPA) entered into by the three major political parties, namely, ZANU-PF, MDC-T, and MDC-M. In doing so, Parliament was alive to the fact that the political settlement would not remain static - it could change from time to time. It was for this reason that the provisions of Schedule 8 of the Constitution of Zimbabwe were not inserted under section 31 of the Constitution which would ordinarily deal with the executive structures of Government. He further argued that Schedule 8 of the Constitution of Zimbabwe heralds itself as a “Framework for a New Government.” Article 20 thereof introduces the provisions of the Global Political Agreement in order to give that agreement the force of law. Schedule 8 of the Constitution of Zimbabwe is thus the product of a political settlement and susceptible to change through political conduct. Schedule 8 of the Constitution of Zimbabwe, according to counsel for the respondents, raises political rather than legal issues. For that reason any dispute arising therefrom is a matter for Parliament to resolve. The courts have no jurisdiction to hear and determine such dispute.

Counsel for the applicants argued to the contrary. 

While conceding that Schedule 8 of the Constitution of Zimbabwe came about as a result of the Global Political Agreement he contended, to my satisfaction, that once the terms of a political settlement are incorporated into the Constitution, they become part of our law. They can no longer be regarded as mere political issues – they become legal issues the import of which this court has jurisdiction to determine.  This court has full original civil jurisdiction over all persons and over all civil matters in Zimbabwe (section 13 of the High Court Act [Chapter 7:06]. I agree with the applicants when they state that the Constitution lies at the very foundation of the country's legal order. To suggest that any of its provisions are merely a political matter would undermine the rule of law and negate the very foundation of a democratic society.

In support of this unusual proposition, counsel for the respondents cited the following cases: King and Ors vs Attorneys Fidelity Fund Board of Control and Another 2006 (1) SA 474; Doctors for Life International vs Speaker of National Assembly 2006 (6) SA 416; United Democratic Movement vs President of South Africa 2003 (1) SA 506.

However, these cases are distinguishable from the present application, and, in some respects, support the contention by the applicants that this court's jurisdiction is unassailable. In King and Ors vs Attorneys Fidelity Fund Board of Control and Another 2006 (1) SA 474 the issue was whether the South African National Assembly had failed to fulfill its constitutional obligation to facilitate public participation in the legislative process.

In the present application, the issue is not whether the first and second respondents have failed to fulfill their constitutional obligation; rather, the issue is whether, in fulfilling that obligation, they have exceeded the mandate given to them in terms of Schedule 8 of the Constitution of Zimbabwe to the Constitution by appointing more than 31 Ministers.

In United Democratic Movement vs President of the Republic of South Africa and Others 2003 (1) SA 495 what the court dealt with at page 506 and identified as a “political question” was not the provisions of the disputed legislation themselves but the debate as to the merits of those provisions. That clearly would not be the concern of any court. The “merits and demerits” are matters for Parliament to deal with during the legislative process.

In this application, the merits or demerits of the provisions of Schedule 8 of the Constitution of Zimbabwe are not in issue. It is the interpretation of those provisions which is at stake. Clearly, again, the distinction is obvious.

As a court, I am frightened by the first respondent's counsel that sought to oust the jurisdiction of this court by making ill-advised reference to section 3 of the Water Act.

The applicant was the respondent's employee. He resigned from employment by letter dated 1 October 2013. The respondent accepted his resignation by letter dated 6 January 2014. Through the same letter, the respondent acknowledged that it owed the applicant US$32,542=07 for salaries, pension refunds, cash in lieu of leave, and medical refunds and promised to pay him as follows;

1. 1st instalment by 7th February 2014 - $10,000-00

2. 2nd instalment by 28 February 2014 - $ 3,757-00

3. 3rd instalment by 31st March 2014 - $ 3,757-00

4. 4th instalment by 30th April 2014 - $ 3,757-00

5. 5th instalment by 31st May 2014 - $ 3,757-00

6. 6th instalment by 30th June 2014 - $ 3,757-00

7. 7th instalment by 31st July 2014 - $ 3,757-00

In addition, the respondent asked the applicant to handover the company vehicle by the 31st December 2013 which was his last working day. The respondent did not pay the applicant as promised. The applicant did not handover the company motor vehicle as directed.

The applicant issued summons claiming the sum of US$32,542=07 from the respondent. The respondent entered appearance to defend. The applicant applied for summary judgment.

The respondent opposed the applicant's application and counter applied for an order that the applicant handover the company vehicle, an Isuzu KB registration number ABD 4174, to the respondent.

At the hearing of the applicant's application for summary judgement and the respondent's counter application, the respondent in the application for summary judgment raised a point in limine challenging the jurisdiction of this court on the basis of section 89(6) as read with section (1) of the Labour Act [Chapter 28.01] which 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 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.

(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 applicant submitted that this court has jurisdiction because there is no dispute the Labour Court can hear and determine as the respondent admits and acknowledged its indebtedness to the applicant.

Commending on the respondent's counter application, counsel for the applicant said the applicant is holding the respondent's motor vehicle as a lien for the acknowledged debt.

He is agreeable to this court ordering the respondent to pay the sum owed and his client being ordered to handover the motor vehicle to the respondent. It is therefore clear that both parties have no defence to the other party's claim against them.

There is therefore no dispute to be determined by the Labour Court.

The Labour Court's exclusive jurisdiction does not apply where a party has admitted its indebtedness arising from a labour relationship which amicably ended with the rights of both parties clearly spelt out and admitted by the other.

Section 89(6) of the Labour Act applies where the Labour Court has “to hear and determine any application, appeal, or matter referred to in subsection 1.”

In this case, both parties admit their liability to the other leaving no dispute to be determined by the Labour Court.

Where a party acknowledges his indebtedness to the other, this court has jurisdiction to determine whether or not to grant summary judgment.

In the case of Madinda Ndhlovu v Highlanders Football Club HB95-11 CHEDA J, dealing with a similar situation, said;

“It is my respectful view, that, while it was the intention of the legislature to oust the jurisdiction of the courts from adjudicating on matters involving labour disputes, an acknowledgment of debt, even if it arises from a contract of labour, is not what the legislature intended to mean. An acknowledgment of debt is nothing but a liquid document which is covered by the rules of this court, for which an application for summary judgment can be applied for.”

The respondent's point in limine is therefore dismissed.

The High Court is a superior court with inherent jurisdiction to protect and regulate its own process and to develop the common law, taking into account the interests of justice.

In the exercise of this inherent power, the High Court promulgates Rules of Court designed to expedite and facilitate the conduct of court business of the court....,.

In the absence of an express or clear statement to the contrary, a Court will not assume that its powers are curtailed.

In respect of the jurisdiction of the High Court, it is trite that the High Court is a superior court with inherent jurisdiction. 

In Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 380 GARWE JA described the powers and functions of the High Court as follows:

In R v Pashda 1923 AD 281, INNES CJ stated…,:

In Horace Nzuma and 2 Others v Hunyani Paper and Packaging SC137-11, the court issued an order in these terms:

“The matter is remitted to the court a quo to exercise its equitable jurisdiction in determining the question of conversion of backpay into foreign currency and the applicable rate.”

The effect of the orders given in these two cases was to emphasize the position that it is the Labour Court - and not the Supreme Court - which is endowed with jurisdiction to apply principles of equity in its determination of labour disputes. The Labour Court's jurisdiction to determine labour disputes on the basis, inter alia, of equity can be gleaned from the import of section 2A of the Labour Court Act [Chapter 28:01], which is quoted in full below;

“2A Purpose of Act

(1) The purpose of this Act is to advance social justice and democracy in the workplace by -

(a) Giving effect to the fundamental rights of employees provided for under Part II;

(b)…,.

[Paragraph repealed by section 3 of Act 7 of 2005]

(c) Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment;

(d) The promotion of fair labour standards;

(e) The promotion of the participation by employees in decisions affecting their interests in the work place;

(f) Securing the just, effective and expeditious resolution of disputes and unfair labour practices.

(2) This Act shall be construed in such manner as best ensures the attainment of its purpose referred to in subsection (1).

(3) This Act shall prevail over any other enactment inconsistent with it.”…,.

The principles of equity and social justice, as well as the imperative for the Labour Court to secure the just and effective resolution of labour disputes, are all called into question when it comes to determining the basis and formula for computing a debt (e.g. damages) suffered in Zimbabwe dollars but claimed in foreign currency. This is particularly so where such damages, being owed to an employee, can no longer be paid in Zimbabwe currency realistically or in a way that gives due value to the employee….,.

Accordingly, I will, in casu, do no more than be guided by the recent authorities on this matter that, have been cited above; Fleximail (Pvt) Ltd v Gift Bob Samanyau and Thirty Eight Others SC21-14 and Horace Nzuma and 2 Others v Hunyani Paper and Packaging SC137-11….,.

1….,.

2….,.

In terms of section 167(1) of the Constitution, the Constitutional Court is the highest court in all constitutional matters and decides only constitutional matters and issues connected with decisions on constitutional matters....,.

Under section 332 of the Constitution, a constitutional matter is one in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.

Background

The appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. Their periods of employment ranged from 2007 and 2008 until January and April 2011 when their contracts of employment expired by effluxion of time.

Their contracts were not renewed because the project for which they were employed was finally wound up in 2011.

In July 2010, in a separate matter involving the respondent, its Workers Committee, and its employees, the first arbitrator (Nasho) ordered the payment of back pay, from 1 March 2009 to the date of the award, in line with the multi-currency system.

In conformity with that award, a Works Council Agreement was concluded, on 15 September 2010, to fix the back-pay due to all employees and the salary structure for non-managerial employees from 1 January 2010 onwards.

In a subsequent matter, the appellants in casu challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

The second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.

On appeal, the arbitral award was upheld by the Labour Court. That decision is currently pending an application for leave to appeal to this court.

On 10 December 2012, following the rejection of their unfair dismissal claim by arbitrator Mugumisi, the appellants filed a further claim for the payment of arrear salaries and benefits.

The third arbitrator (Mambara) found in their favour and awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimant was retrenched.

The respondent, being aggrieved by that award, applied to the Labour Court for the review of the award.

Decision Appealed and Grounds of Appeal

The court a quo rejected two of the grounds of review mounted by the respondent.

It found, that, the Mambara award did not improperly seek to review or enforce the Nasho award. It also found, that, the prior decision of the court, upholding the Mugumisi award, was different from the matter currently before it because the former concerned back pay from the date of termination to the date of reinstatement as opposed to salary and benefits accrued before termination.

Consequently, it was not necessary that the current matter be held in abeyance pending the determination of the appeal in the earlier matter.

The court a quo found in favour of the respondent on the remaining two grounds of review:

(i) Firstly, it held, that, the Mambara award did operate to review and alter the court's previous decision that the appellants had not been unfairly dismissed. This resulted in uncertainty on the employment status of the appellants and the possible institution of other unnecessary claims.

Moreover, the arbitrator's findings, that, the appellants had implied permanent contracts of employment and that they had been retrenched were equally erroneous.

(ii) Secondly, the court found, that, the issue of the appellants grades was not part of the arbitrator's terms of reference. Thus, the arbitrator had misdirected himself in going beyond his remit and basing his award on extraneous terms of reference.

The court accordingly held, that, the review succeeded on these two grounds.

The arbitral award was set aside and substituted with the dismissal of the appellants claim.

The grounds of appeal in casu are that the court a quo erred in the following respects:

(i) In concluding, that, the arbitrator's award, mandating the quantification of an admitted liability, had the effect of altering the court's previous judgment.

(ii) In placing any significance on the arbitrator's misuse of the word retrenchment.

(iii) In concluding, that, the arbitrator had effectively conducted a re-grading exercise in determining what was due to the appellants.

(iv) In concluding, that, there was a reviewable issue raised before the court.

Jurisdiction to Review Arbitral Awards

In his heads of argument, and at the hearing of the appeal, counsel for the appellants embarked upon an excursus outside the stated grounds of appeal into the review jurisdiction of the Labour Court.

He submits, that, section 89(1)(d1) of the Labour Act [Chapter 28:01] limits that court to the same review powers as are exercisable by the High Court.

Therefore, since the review of arbitral awards cannot be instituted in terms of the High Court Act [Chapter 7:06] but only under the Model Law scheduled to the Arbitration Act [Chapter 7:15], it follows that the Labour Court, being a creature of statute, and having no inherent jurisdiction, cannot review the decisions of arbitrators.

Counsel for the appellants relies for this proposition upon the decisions in Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S) and National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H).

In Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S), it was held, that, Article 34(2) of the Model Law sets out the sole grounds on which the High Court may set aside an arbitral award.

The court cannot, therefore, rely on the grounds set out in section 27 of the High Court Act to set aside an arbitral award on review.

This position was adopted in National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H) on the somewhat questionable basis, that, the general power to review proceedings, conferred by section 26 of the High Court Act, does not extend to arbitral awards because an arbitrator does not fall into any of the stipulated categories, i.e. inferior courts of justice, tribunals, or administrative authorities.

In any event, it was re-affirmed, that, the narrow grounds on which an arbitral award may be set aside are set out in Article 34 of the Model Law, and recourse to the courts against an award may only be made by way of an application under that Article.

The legislature had, in enacting the Model Law, so it was held, deprived the High Court of its inherent jurisdiction to review the conduct of an arbitrator.

Counsel for the respondent submits, that, section 89(1)(d1) of the Labour Act was inserted by Act No.7 of 2005: therefore, the earlier authorities cited on behalf of the appellants do not apply.

This position is placed beyond doubt by the decision of this court in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) to the effect, that, the Labour Court has full powers of review in addition to those of the High Court.

Moreover, section 92EE(1) of the Labour Act, inserted by Act No.5 of 2015, makes it very clear, that, the Labour Court can exercise review powers over the decisions of arbitrators.

I entirely agree with these submissions.

Section 89 of the Labour Act [Chapter 28:01] prescribes the functions, powers, and jurisdiction of the Labour Court. In particular, section 89(1) of the Labour Act, in its relevant portions, 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;

(b)...,.;

(c)...,.;

(d)...,.;

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

The interpretation of this provision was lucidly elaborated by GARWE JA in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S)..., as follows:

“The above provisions are, in my view, clear and unambiguous. In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters. The jurisdiction to exercise these powers of review is in addition, and not subject to, the power the court has to hear and determine applications in terms of the Act….,.

The suggestion…, that, the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters, is, in my considered view, incorrect and inconsistent with the provisions of the Act. I say this for two reasons:

(i) Firstly, the Act is clear, that, 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 section 89(1) of the Act – see section 89(6) of the Act….,.

(ii) Secondly, it is clear, that, the interpretation given relies on a superficial reading of the wording of section 89(1)(d) [sic]. The section should be understood to mean 'the same powers of review in respect of labour matters as would be exercisable by the High Court' or alternatively 'the same powers of review, as would be exercisable by the High Court, in respect of labour matters.'

Any other reading of the paragraph would clearly result in an absurdity.”

I fully endorse the above reasoning.

The only possible meaning and effect to be ascribed to section 89(1)(d1) of the Labour Act is that the Labour Court has the same power to review any inferior proceedings in labour matters on the same grounds of review as may be invoked by the High Court in the exercise of its powers of review in relation to other matters not embraced by the Labour Act.

The interpretation propounded by counsel for the appellants is not only specious in that it divests the Labour Court of the full breadth of its oversight in labour matters, but also absurd in that any procedural or other irregularity committed by an arbitrator would be rendered wholly unreviewable - whether by the Labour Court or the High Court.

That surely could not have been the intention of Parliament in the enactment of section 89 of the Labour Act.

In any event, any possible room for misconstruing section 89(1)(d1) of the Labour Act has been inescapably shut down by the recently enacted section 92EE of the Labour Act which provides as follows:

“92EE Grounds of Review by Labour Court

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with this Act may be brought on review before the Labour Court shall be –

(a) Absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) Interest in the cause, bias, malice, or corruption on the part of the arbitrator or adjudicating authority concerned;

(c) Gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

The purpose of section 92EE of the Labour Act, as I perceive it, is to bolster the review powers of the Labour Court, under section 89(1)(d1), by spelling out, in unambiguous terms, the specific grounds upon which those powers may be exercised, viz. the same grounds as are enumerated in section 27 of the High Court Act.

Moreover, the provision makes it clear, ex abundante cautela, that, the review powers of the Labour Court are exercisable over arbitrators and adjudicating authorities in all labour matters.

To conclude on this aspect, I take the view, that, the appellant's legal point in limine, challenging the jurisdiction of the Labour Court to review arbitral awards, is utterly unmeritorious.

It is accordingly dismissed.

The first respondent stated, as its first preliminary matter in opposition to the application, that the court did not have jurisdiction over the present application.

It developed its argument around that preliminary issue along the following lines. It said the urgent chamber application for stay of execution involved an assessment of the applicants' prospects of success on appeal. It stated that the Supreme Court, and not this court, has the jurisdiction to make the assessment. It, on that basis, insisted that the applicants' application was in the wrong forum. It submitted that the urgent chamber application should have been filed with the Supreme Court and not this court.

The applicants stated to the contrary in their response to the first respondent's above-mentioned in limine matter. They stated that the court does have jurisdiction to hear and determine their application. They, in this regard, made reference to section 171(1) of the Constitution of Zimbabwe. They said the section confers jurisdiction on the court to entertain the application. The section reads:

“171 JURISDICTION OF HIGH COURT

(1) The High Court -

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

(b)…,.

(c)…,.

(d)…,.”…,.

The applicants submitted that the application which was before the court was a civil matter. They insisted that the application was, therefore, properly before the court.

A reading of section 171(1) of the Constitution shows, in a clear and unambiguous manner, that the court has the necessary jurisdiction to hear as well as determine the application.

The first respondent's assertions on the issue of the court lacking the jurisdiction to hear the application was, to a large extent, misplaced. That is so because, while it is accepted that an application for stay of execution pending the hearing of an appeal does involve an assessment of the applicant's prospects of success, the court's ability to make the assessment is not excluded. At any rate, the assessment is not the only factor which determines the propriety or otherwise of the application. Other matters come into play. Amongst such matters are the interests of justice as between the parties.

An application for stay of execution does, by its nature, fall into the area of equity reliefs. Where, therefore, equity demands that it be granted in the interests of justice, the court hearing the application is, as a general principle, enjoined to consider, and, where appropriate, grant it.

The applicants referred the court to section 176 of the Constitution of Zimbabwe. They argued, and correctly so, that the section confers power on the court to regulate its processes as well as to develop the common law or the customary law taking into account the interests of justice. The position which the applicants stated is in sync with the remarks of GUBBAY CJ who, in Mupini v Makoni 1993 (1) ZLR 80 (S) said:

“Execution of a judgment is a process of the court and the court has an inherent power to control its own processes and procedures, subject to such rules as are in force. In the exercise of a wide discretion, the court may set aside or suspend a writ of execution or cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay of execution to satisfy the court that special circumstances exist. Such special circumstance can be readily found where the judgment is for ejectment or the transfer of property, because the carrying into operation of the judgment could make restitution of the original position difficult.”

The parties are, in this regard, referred to the following case authorities where the cited principle was also enunciated: Cohen v Cohen 1979 (1) ZLR 184 (G); Santam Ins Co Ltd v Paget 1981 (1) ZLR 132 (S); and Chibanda v King 1983 (1) ZLR 116 (H) wherein DUMBUTSHENA AJP stated that the applicant:

“must satisfy the court that he may suffer irremediable harm or prejudice if execution is granted.”

The applicant also submitted that he is entitled to appeal to the High Court against the decision of the Commissioner General dismissing his appeal in terms of section 70(5) of the Constitution.

He has not appealed, despite having been served with the appeal judgment on 17 March 2016, because he had not been given appeal papers by his superiors. Before he could note the appeal he was arrested and taken to detention at Fairbridge detention barracks where he has been held unlawfully.

Considering that the applicant has had almost a month to file his appeal to the High Court but did not do so, electing, instead, to file a review application, those submissions are mere red-herring by a recalcitrant police officer who thinks he can use all means possible to avoid the consequences of his actions.

In any event, the Commissioner General is the final court of appeal and not the High Court.

I have already pronounced myself on that point in Tamanikwa v Commissioner General of Police and Another HH676-15 where I took the view that it was never the intention of the legislature, in enacting section70(5) of the Constitution, to allow any party aggrieved by a decision of any tribunal, including the Commissioner General of Police, to appeal to the High Court because such an appeal is not provided for in any enactment. This is because section 171(1)(b) of the Constitution provides that the High Court may only exercise appellate jurisdiction conferred to it by an Act of Parliament.

See also section 30(1) of the High Court Act [Chapter 7:06].

Ordinary jurisdiction and appellate jurisdiction must be treated differently.

While this court will jealously guard its original jurisdiction, it does not possess the magical crystal ball to guard the appellate jurisdiction it does not have or to install it merely because a statute had not specifically ousted it. This is because section 171(1)(d) of the Constitution makes it clear that this court may only exercise appellate jurisdiction conferred to it by an Act of Parliament. In line with that, section 30(1) of the High Court Act [Chapter 7:06] provides that this court shall determine appeals from courts or tribunals in terms of an enactment.

In that respect, the appellate jurisdiction cannot be imposed merely because it is not excluded. Surely, it was never the intention of the lawgiver, in enacting section 70(5) of the Constitution, that any party aggrieved by a decision of any tribunal should just rock up at the High Court with an appeal not provided for in any enactment. Chaos would ensue if that was to be the case. I am fortified in that view by the existence of a right of review, as opposed to appeal, available to an aggrieved party. Such a party can therefore not foist appellate jurisdiction on this court which is not conferred by an Act of Parliament.

The Police Act certainly does not confer such jurisdiction.

The provisions of the Police Act are clear. There is no provision for an appeal or review to this court from a decision of a Single Officer. This court may only review the decision of a Board of Officers or entertain an appeal against the decision of a Board of Officers.

The reasoning behind this discrimination is clear.

Single Officers may only adjudicate on simple offences which do not attract stiff penalties. They preside over a simple and fast and streamlined procedure designed to clear less serious infractions. Section 33(2) of the Police Act gives the right to any person convicted of an offence by a Board of Officers to appeal to the High Court against such conviction or order by the Board. The provisions of the High Court Act which relate to appeals from the Magistrates Court apply to such appeals. These provisions relate to the prosecution of such appeals, the power of the High Court on such appeal, the execution and suspension of sentence and the institution of further proceedings after a conviction has been set aside.

No similar provisions are set out in the Police Act for appeals from decisions of Single Officers. If we read these provisions of section 33 as applying equally to reviews, we would be forgiven for coming to the conclusion that no appeal or review lies to the High Court against a decision of a Single Officer. An appeal or review against a decision of a Single Officer lies with the Commissioner General of Police. One interpretation of section 34(7) of the Police Act is that once the Commissioner General has dismissed an appeal to him against a decision by a Single Officer, the matter should end there. However, the jurisdiction of the High Court, which is conferred upon it by section 171(1)(d) of the Constitution is that it has such appellate jurisdiction as may be conferred on it by an Act of Parliament. It might seem to be safe to assume that if the Police Act is silent on the issue of whether an appeal lies to the High Court from a decision of a Single Officer then the High Court has no such jurisdiction. A reading of section 30(2) of the High Court Act will soon put paid to that notion. The High Court has jurisdiction in all civil matters unless such jurisdiction is expressly ousted by an Act of Parliament. The Police Act is silent on whether an appeal lies to the High Court from a decision of Single Officer.

Silence is not equivalent to express ouster. See Rateyiwa v Kambuzuma Housing Co-op & Anor 2007 (1) ZLR 311…,.

In terms of section 345(1) of the Mines and Minerals Act [Chapter 21:05], where both the complainant and the defendant have agreed, in writing, that a dispute be investigated and resolved by the Mining Commissioner in the first instance, the latter shall do so notwithstanding the original jurisdiction of the High Court.

The question of a referral of the dispute to the Mining Commissioner must be considered in conjunction with the provisions of section 345(1) of the Mines and Minerals Act [Chapter 21:05] which provides:

“Except where otherwise provided in this Act, or except where both the complainant and defendant have agreed, in writing, that the complaint or dispute shall be investigated and decided by the mining commissioner in the first instance, the High Court shall have and exercise original jurisdiction in every civil matter, complaint or dispute arising under this Act, and if, in the course of any proceeding, and if it appears expedient and necessary to the court to refer any matter to a mining commissioner for investigation and report, the Court may make an order to that effect.”

Therefore, while the Mining Commissioner has judicial powers conferred upon him by section 346 of the Mines and Minerals Act [Chapter 21:05], to hold a court in any part of the mining district to which he is appointed and determine disputes in the simplest, speediest and cheapest manner possible…, this court still enjoys jurisdiction over such matters.

The application can therefore not be defeated by a failure to refer the dispute to a Mining Commissioner.

It is, however, important to note that it is within the province of this court to direct the Mining Commissioner to commission a survey. Indeed, the Mining Commissioner to whom a complaint has been made, as was done by the applicant in this case, has a duty to investigate the complaint thoroughly; BMG Mining (Pvt) Ltd v Mining Commissioner, Bulawayo and Ors 2011 (1) ZLR 74 (H)…,.; Mazuva v Simbi; Simbi v Mazuva 2011 (2) ZLR 319 (H)…,.

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 Impact of New Constitution

In light of the foregoing conclusion, and with deference to the twin doctrines of Constitutional ripeness and avoidance, I deem it unnecessary and somewhat academic to delve into the broader question as to the possible supersession of the exclusive jurisdiction of the Labour Court with the advent of the current Constitution.

Although this Constitutional dimension is obviously important, it seems preferable to leave it for determination at a more opportune time and by a larger bench - possibly the Constitutional Court itself.

Jurisdiction is everything. Without it, a court has no power to take one more step. Where a court acts without jurisdiction, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

It is for the court to satisfy itself that it has the authority to decide the matter litigated before it….,.

The High Court also exercises jurisdiction on the ground that it has inherent jurisdiction based on section 171(1)(a) of the Constitution which states that;

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

Section 13 of the High Court Act also states that;

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

The High Court is empowered, in terms of section 14 of the High Court Act [Chapter 7:06] to make declaratory orders.

The Magistrate's Court is a creature of statute. It operates in terms of the powers conferred upon it by the legislature. The Magistrates Court cannot arrogate to itself powers that are not conferred upon it by statute….,.

The issue of the power of the High Court to grant declaratory orders was canvassed in the case of AGRIBANK v Machigauta & Another 2008 (10) ZLR 244 (S), where GARWE JA, stated…, as follows:

“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.”…,.

Section 85 of the Constitution does to give the Magistrates Court the power to deal with applications for declaratory orders.