Jurisdiction re: Judicial Deference iro Specialised Courts and Tribunals

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

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

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

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

(b) Laptop HP Compaq 6720;

(c) Cellphone Samsung D880;

2. The cost of this application 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.

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

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 ...

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SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

Following their suspension from employment by the first respondent, the appellants, on 2 February 2018, filed an application with the High Court seeking a declaratur to the effect that such suspension was unlawful as well as consequential relief.On 3 October 2018, the High Court dismissed the application with each of ...

Following their suspension from employment by the first respondent, the appellants, on 2 February 2018, filed an application with the High Court seeking a declaratur to the effect that such suspension was unlawful as well as consequential relief.

On 3 October 2018, the High Court dismissed the application with each of the parties being made to pay its own costs.

This appeal is against that judgment.

BACKGROUND FACTS

The first respondent is a municipal authority constituted in accordance with the provisions of the Urban Councils Act [Chapter 29:15]. It is the authority responsible for running the affairs of Harare. The second respondent is the Government official tasked with the administration of the Act. The third respondent is cited in his official capacity as the acting Town Clerk for the first respondent. The fourth and fifth respondents were members tasked with the hearing of disciplinary proceedings against the two appellants.

The two appellants are senior officials within the employ of the first respondent, (“City of Harare”). Such appointments are governed by section 134 and 135 of the Urban Councils Act.

Following allegations of gross mismanagement in the affairs of the City of Harare, the Government caused a special audit to be conducted into the affairs of the municipality. On 20 December 2017, a special meeting was convened by councilors to receive the report on the special audit.

Following upon the meeting aforesaid, the third respondent was directed, by a resolution passed at the meeting of the council, to write letters of suspension to the appellants.

On 31 December 2017, the third respondent addressed letters to the appellants advising them of their suspension from employment with immediate effect and without pay and benefits in terms of section 6(1) of the Labour (National Employment Code of Conduct) Regulations, 2006, S.I.15 of 2006 (the “National Code of Conduct”).

On 5 January 2018, the appellants were invited to attend a disciplinary hearing on 15 January 2018 to enquire into the alleged offences detailed in the letters of suspension.

On 10 January 2018, the appellants launched an application with the High Court, under urgent cover, to interdict the conduct of the disciplinary proceedings. The matter was deemed not urgent and was not heard. The applicants then launched the proceedings which are the subject matter of this appeal.

PROCEEDINGS BEFORE THE HIGH COURT

Before the High Court, the appellants contended that the Urban Councils Act rigidly regulates the appointment and conditions of service of senior officials. To that end, any aspect involving the appointment, discipline, and dismissal of senior officials contrary to the Act was void and of no effect.

They contended that section 140 of the Urban Councils Act is specific and mandatory and that, in terms of its provisions, a senior official facing suspicion of misconduct cannot be suspended by councillors. It was averred, that, in terms of section 140 of the Urban Councils Act, only the Town Clerk had the mandate to place a senior official on suspension. It was suggested, that, the reliance, by the first respondent, on SI15 of 2006 in effecting the suspension and the consequent disciplinary proceedings pursuant thereto was wrong and unlawful.

Turning to the appointment of the disciplinary committee, the appellants contended, that, there was no scope within section 140 of the Urban Councils Act for the Mayor to appoint a disciplinary committee. His decision to do so, and the appointment itself, were therefore illegal. As a result, the failure to comply with the provisions of section 140 of the Urban Councils Act rendered the entire process an illegality.

The application was opposed by the first and third respondents who took a preliminary point. The respondents contended, that, the High Court did not have the requisite jurisdiction to determine the application.

It was submitted, that, although disguised as an application for a declaratur, what the appellants were seeking was a review of the suspension.

As regards the merits, the respondents averred that the employer was the City of Harare and not particular individuals who were also employees of the same. The councillors represent the City of Harare and it was their mandate to make the decision to suspend the two appellants. In that regard, the City of Harare had acted within the confines of the law when it suspended the appellants in terms of the Labour Act [Chapter 28:01] and the National Code of Conduct. The respondents denied that the suspension and the scheduled disciplinary proceedings were unlawful and prayed that the application be dismissed with costs.

The learned judge in the court a quo, based on the relief sought in the draft order, was of the considered view that the High Court had the requisite jurisdiction to determine the application. This was because, as he stated, the relief sought was that of a declaratory order, and the Labour Court was not empowered, in terms of its enabling Act, to grant declaratory orders.

He discounted the contention by the respondents, that, what the appellants draft order sought was an order for their reinstatement disguised as a declarator.

I am inclined to believe that the learned judge erred, in that he then proceeded to determine the matter on the merits as to whether the applicable law was the Labour Act or the Urban Councils Act.

The court a quo found that the appellants were employees as defined in section 2 of the Labour Act. The learned judge concluded that the only employees who were excluded from the Labour Act were those whose conditions of service were covered by the Constitution and the appellants did not fall in that category.

It was common cause that the City of Harare did not itself have a Code of Conduct providing for the discipline of its employees, and, accordingly, in terms of section 12B of the Labour Act, in the absence of a code of conduct, the National Code of Conduct was the default code for disciplining employees.

The court dismissed the application.

On the issue of costs, it was the view of the learned judge, that, given the two pieces of legislation seemingly providing for the discipline and dismissal of employees in the employ of the City of Harare, it was to be expected that the appellants would bring an application to court for the determination of their right to administrative conduct that is lawful. In addition, he surmised that the matter raised important legal issues. Accordingly, he ordered that each party should bear its own costs.

THE APPEAL

Aggrieved by the dismissal, the appellants have brought this appeal on two grounds. It is contended that the court erred in law:

(i) In finding that section 140 of the Urban Councils Act [Chapter 29:15] had been repealed by section 2A of the Labour Act [Chapter 28:01];

(ii) In not finding that the suspension of, and the disciplinary proceedings against, the appellants were null and void and of no force or effect for being in contravention of section 140 of the Urban Councils Act [Chapter 29:15].

The appellants pray that the appeal be allowed with the judgment of the court a quo being set aside to allow the grant of the application. They also pray for consequential relief in the form of the declaratur sought in the court below.

ISSUE(S) ARISING FOR DETERMINATION

The sole issue for determination, on appeal, therefore, is whether the court a quo erred in finding that section 140 of the Urban Councils Act had been implicitly repealed by the Labour Act.

However, before determing the merits of the appeal it is necessary to determine whether or not the court a quo was correct in assuming jurisdiction over the matter in the first place.

WHETHER THE COURT A QUO CORRECTLY ASSUMED JURISDICTION

Subsequent to the promulgation of the 2013 Constitution, there has arisen, within the jurisdiction, some confusion on the extent of the jurisdiction enjoyed by the High Court as a court of first instance - especially as relates to matters concerned with employment disputes.

The Supreme Court has determined, in Nhari v Mugabe & Ors SC161-20, that, the High Court has no jurisdiction in issues of labour and employment and that such issues fell to be determined under the Labour Act.

In that case, the court had to consider whether, under section 171 of the 2013 Constitution, the High Court could be said to enjoy original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In this exercise, the Supreme Court had to construe the provisions of sections 171 and 172 of the Constitution which specifically made provision for the jurisdiction of the High Court and the Labour Court respectively. The court said:

“The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialized areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution, which establishes the Labour Court, is not made subject to section 171 which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity.

The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution.”

In the context of this case, the court a quo assumed jurisdiction on the premise that the appellants were seeking relief in the form of a declaratur and that the Labour Court was not empowered to grant declaratory orders.

The learned judge found, that, the matter was properly before him on the sole premise that the relief sought was that of a declarator as opposed to an application for reinstatement.

It is a settled position in our law, that, as a creature of statute, the Labour Court has not been imbued with the power to issue declaratory orders.

The manner in which the relief was framed did indeed suggest that the appellants were seeking declaratory orders.

In order to decide whether or not the matter was properly before the High Court, I must have regard to the premise upon which the appellants approached the court. In other words, the resolution of the question on jurisdiction is hinged on the dispute that was placed for adjudication before the court a quo.

The contention made on behalf of the appellants was that the City of Harare had, in effecting their suspensions and seeking to discipline them, used the wrong law and that, to that extent, they were entitled to a declaration of rights, thus imbuing the High Court with the necessary jurisdiction.

This, it was argued, was due to the fact, that, the Labour Court, being a special court set up in terms of the Labour Act, was a creature of statute and could only do that which its eanabling Act provided for.

In deciding whether or not a litigant is seeking a declaratur or some other relief, a court must be guided by the grounds upon which the application is made and the evidence in support of the order prayed for.

In Geddes Ltd v Tawonezvi 2002 (1) ZLR 479 (S)…, MALABA JA…, stated:

“In deciding whether an application is for a declaration or a review, a court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks declaratory relief is not, in itself, proof that the application is not for review.

In City of Mutare v Mudzime & Ors 1999 (2) ZLR 140 (S), MUCHECHETERE JA quoted with approval from Kwete v African Publishing Trust & Ors HH21-98, where, at p3 of the cyclostyled judgment, SMITH J said:

'It seems to me, with all due respect, that, in deciding whether or not, in an application for damages or reinstatement arising from alleged wrongful dismissal, the provisions of Rule 259 of the High Court Rules should be complied with, one should look at the grounds on which the application is based, rather than the order sought…,. It seems to me anomalous that one should be permitted to file an application for review out of time, without seeking condonation, as long as a declaratory order is sought. A declaratory order is, after all, merely one species of relief available on review.'

In this case, the respondent was not attacking Mrs Madyara's decision to suspend him from work, the disciplinary proceedings she presided over, or the decision of the employer to dismiss him from employment.

He was in fact treating these decisions and proceedings as a nullity.

In other words, they were as good as not having happened and there was no route leading to them upon which they could be reviewed. The ground on which he was treating these decisions and proceedings as a nullity, was that Mrs Madyara had no legal authority or jurisdiction to make the decisions and institute disciplinary proceedings against him.”

Contrary to the remarks of the learned MALABA JA…, above, the appellants argue, that, in suspending them and preferring charges of misconduct, the City of Harare had failed to give effect to the provisions of section 140 of the Urban Councils Act rendering such conduct illegal. They contended, that, the employer was not at large to ignore the specific provisions of the Act and find comfort in S.I.15 of 2006.

The order sought by the appellants in the court a quo was to the following effect:

“1. That, it be and is hereby declared that the suspension of the applicants, pursuant to resolutions by a special Council meeting of the first respondent, held on 20 December 2017 and communicated to the applicants by letters of the third respondent dated 31 December 2017, is in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and is null and void and of no force and effect.

2. That, it be and is hereby declared that the disciplinary proceedings against the applicants, flowing from the aforesaid resolutions by a special Council meeting of the first respondent held on 20 December 2017 and implemented by letters of the 3rd respondent dated 5 January 2018, are in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and are null and void and of no force and effect.

3. That, as a consequence of 2 above, it be and is hereby declared that the disciplinary proceedings presided over by the fourth and fifth respondents are in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and are null and void and of no force and effect.

4. That, it be and is hereby declared that, in respect of senior officials of a council, non-compliance with section 140 of the Urban Councils Act [Chapter 29:15] cannot be remedied merely by resorting to the use of the procedures set out in the Labour (National Employment Code of Conduct) Regulations 2006, S.I. 15/2006.

5. That, for the avoidance of doubt, it be and is hereby declared that the first and second applicants are still the Human Capital Director and Finance Director, respectively, of the first respondent.

6. The respondents (if any oppose this order) shall pay the costs of this application on a legal practitioner and client scale.”

The appellants seek to challenge their suspension under what they term an illegal process not provided for by law. In my view, they were challenging the choice of law by the employer and the legality of the entire process.

The starting point, in my view, must be the Labour Act.

It sets out which employees and employers are subject to its provisions in the determination of disputes in the workplace. Sections 2A and 3 of the Labour Act are pertinent in this regard. Section 3 of the Labour Act provides as follows:

“3 Application of Act

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

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

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

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

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

(c) Such other employees of the State as the President may designate by statutory instrument.”

I begin this inquiry with a consideration of section 3 of the Labour Act.

In sub section (1), it states, in unequivocal terms, that, the Labour Act shall apply to all employers and employees except for those whose conditions of employment are governed by the Constitution.

In subsection (2) and (3) members of the Public Service and the disciplined forces are specifically excluded from the application of the Labour Act.

The appellants have not argued that they fall within the category of employees whose conditions of employment are excluded from the application of the Labour Act.

In turn, section 2A of the Labour Act [Chapter 28:01] is in the following terms:

“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;

(b) (repealed)…,.;

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

(d) The promotion of fair labour standards;

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

(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 subs (1).

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

A perusal of the section makes it clear to the reader that the intended purpose is to ensure that employees are accorded the legal framework for the enforcement of their rights within the work place as guaranteed by law.

However, for present purposes, section 2(1)(f) is the pertinent provision as it seeks to ensure the securing of a just, effective, and expeditious resolution of disputes and unfair labour practices.

In casu, the dispute centres upon which statute the City of Harare should have resorted to in disciplining the appellants.

The City of Harare contends that section 140 of the Urban Councils Act is inconsistent with the Labour Act, and, to that extent, is inapplicable in the determination of labour disputes within its workplace.

The appellants do not dispute that there is no Code of Conduct in existence governing the discipline and dismissal of senior employees within the workplace of the City of Harare. Their contention is that section 140 of the Urban Councils Act affords them all the protection they require, as employees, and that to depart from the specific provision of the said section and discipline them in terms of any other law is to perpetuate an illegality.

Section 140 of the Urban Councils Act reads:

“140 Conditions of service of other senior officials

(1) Subject to subsection (2) and to the conditions of service of the senior official concerned, a council may, at any time, discharge a senior official —

(a) Upon notice of not less than three months; or

(b) Summarily on the ground of misconduct, dishonesty, negligence, or any other ground that would, in law, justify discharge without notice.

(2) A council shall not discharge a senior official unless the discharge has been approved by the Local Government Board: provided that the discharge of a medical officer of health shall, in addition, be subject to the approval of the Minister responsible for health in terms of section 11 of the Public Health Act [Chapter 15:09].

(3) If it appears to a Town Clerk that any other senior official of the council has been guilty of such conduct that it is desirable that that official should not be permitted to carry on his work, he —

(a) May suspend the official from office and require him forthwith to leave his place of work; and

(b) Shall forthwith notify the mayor or chairman of the council, as the case may be, in writing, of such suspension.

(4) Upon receipt of a notification of suspension, in terms of subsection (3), the mayor or chairperson shall cause the suspension to be reported, at the first opportunity, to the council.

(5) Where a council has received a report of a suspension, in terms of subs (4), the council shall, without delay —

(a) Conduct an inquiry or cause an inquiry to be conducted into the circumstances of the suspension; and

(b) After considering the results of the inquiry, decide whether or not —

(i) To lift the suspension; or

(ii) To do any one or more of the following —

(A) Reprimand the senior official concerned;

(B) Reduce the salary any allowance payable to the senior official;

(C) Transfer the senior official to another post or grade, the salary of which is less than that received by him or her at the date of the imposition of the penalty;

(D) Impose a fine not exceeding level five or three months' salary, which fine may be recovered by deductions from the salary of the senior official;

(E) Subject to subsection (2), discharge the senior official.”

Sub-section (1) above makes for uncomfortable reading as it seems to suggest that the council can summarily dismiss an employee on the grounds of misconduct, dishonesty, negligence, or any other ground, in law, that would justify such discharge without notice.

In his judgment, the learned judge in the court a quo stated that counsel for the appellants had conceded that section 140 of the Urban Councils Act contained repugnant provisions authorizing the Council to summarily dismiss an employee and that this would inevitably be inconsistent with the Labour Act, protecting as it does, social justice within the workplace and safeguarding the rights of employees against unfair dismissal.

This provision is not only inconsistent with section 2(1) of the Labour Act but is also in violation of the audi alteram partem principle. It is particularly inconsistent with subsection (1)(f) of the Labour Act which ensures that an employee is afforded a just and effective legal framework for the resolution of disputes in the workplace.

Before this Court, counsel for the appellants accepted that the provision is inimical to the interests of the employee at large. He suggested that the court not have regard to subsection (1) of section 140 of the Urban Councils Act.

In a somewhat novel submission, he argued that subsections (2) and (3) of section 140 of the Urban Councils Act must be read with the provisions of the National Code of Conduct.

I venture to suggest that this departure in position on the initial submissions would tend to suggest that he has accepted that the reliance, by the City of Harare, on the National Code as opposed to section 140 of the Urban Councils Act, was lawful.

It is also an acceptance of the position that the appellants stand to be disciplined in accordance with the provisions of the Labour Act as they are employees to whom the Labour Act applies and that the absence of a Code of Conduct within the workplace of the City of Harare results in the National Code of Conduct being the default code of conduct for disciplining employees - whether they are junior or senior employees.

This shift in position must dispose of the appeal.

I cannot envisage a situation where a tribunal would, in the course of conducting a disciplinary hearing, move from one legislative instrument to another in an effort to find those provisions that best suit the employee.

A tribunal can only have regard to one instrument recognizable at law as being the applicable law.

In this instance, for all the reasons stated above, the Labour Act, as read with SI15/ 2006, is the law applicable in the disciplining of the two appellants herein.

The appellants have not justified their exclusion from the provisions of the Labour Act in the determination of the allegations of misconduct laid against them.

Section 2(3) provides that the Labour Act shall prevail over any enactment or provision inconsistent with it.

Section 12B of the Labour Act requires that an employee be dismissed in accordance with the provisions of a Code of Conduct. It provides as follows:

“12B Dismissal

(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed —

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) In the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).”

It is common cause that the City of Harare does not have a code of conduct for discipline purposes within the workplace. It has always relied on the provisions of the Urban Councils Act.

Such reliance, in the light of the clear provisions of the Labour Act, is misplaced.-

The City of Harare is subject to the Labour Act and must comply with its provisions in all respects. It does not belong to the category of employers exempted from the application of the Labour Act. In the premises, in the light of the provisions of section 12B of the Labour Act above, the City of Harare must have resort to the National Code of Conduct in the resolution of employment disputes. It cannot have recourse to section 140 of the Urban Councils Act, which, as admitted by counsel for the appellants, is not a Code of Conduct.

As a consequence, the view I take is that what was before the court a quo was an issue dealing with an employment relationship and that is a dispute that falls for determination under the Labour Act, by the Labour Court and the other structures below it.

The issue as to whether the High Court is empowered to exercise jurisdiction as a court of first instance is now settled – see Nhari v Mugabe & Ors SC161-20.

I respectfully associate myself with the remarks by GARWE JA in the above decision.

In this appeal, in order to resolve the dispute between the parties, the court a quo had to delve into the contentious issue of the applicable law. It had to decide whether or not the appellants were employees as defined in section 2 of the Labour Act. It had to decide whether or not the same Act applied to the appellants or whether they were exempt from its application. It had to consider whether or not the suspensions were illegal.

It stands to reason that, in casu, the High Court misdirected itself in assuming jurisdiction in this matter.

Although the court ultimately came to the correct conclusion, that it was the National Code of Conduct that applied to this matter, it should have declined jurisdiction on the same basis resulting in the matter being struck off the roll for want of jurisdiction.

DISPOSITION

When one has regard to the substance of the application and the averments contained therein, the unmistakable conclusion is that the appellants were seeking to challenge their suspensions on the basis that the wrong law had been applied in suspending them.

That argument speaks to a process of review as opposed to a declaration of rights.

The law being impugned was the Labour Act. The issue for determination was whether or not the appellants were suspended according to law, and, if not, were the suspensions illegal entitling them to the setting aside of the suspension?

The fact that they clothed the application as a declarator is not material. The result they sought is what guides the court.

The dispute lends itself to adjudication under the Labour Act which specifically empowered the Labour Court to review the decisions or actions by employers within the workplace. The Act also empowers labour officers to deal with unfair labour practices, dismissals: see section 93 of the Labour Act.

That being the position, the High Court had no jurisdiction to issue a declaratur in respect of issues of labour and employment. Section 2A of the Labour Act [Chapter 28:01] makes it clear, that, notwithstanding the powers of the High Court to issue declaraturs, the Labour Act prevails over all other laws inconsistent with it.

Accordingly, in my view, the issue of the jurisdiction of the High Court fell for determination first. But, I also accept that the issue of which law is applicable is inextricably tied up with the question of jurisdiction.

For the additional reason that this was not in fact a declaratur but an employment and labour matter, the High Court clearly had no jurisdiction to entertain the claim in the first place. The High Court was wrong in assuming jurisdiction in a matter where the issues for determination involved the resolution of an employment dispute.

It should have declined jurisdiction.

Although the High Court had no jurisdiction, it made a determination on the merits. That determination cannot be allowed to stand. It has to be set aside as being an irregularity.

The Supreme Court is empowered, in terms of section 25(2) of the Supreme Court Act [Chapter 7:13] and in the exercise of its powers of review, to set aside any irregular proceedings.

In this instance, the court must exercise those powers and set aside the proceedings as being irregular. Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The appeal be and is hereby dismissed with costs.

2. In the exercise of the powers of review of the Supreme Court, in terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings of the High Court, under HC Number 991/18, be and are hereby set aside for want of jurisdiction on the part of the High Court.

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

The applicant was employed as the Chief Executive Officer (CEO) of the sixth respondent. The sixth respondent is Net One Cellular (Pvt) Ltd, a licensed provider of mobile and related telecommunications services in Zimbabwe. The first to fifth respondents are its directors.

Following a Board meeting held on 20 February 2020, a special resolution to suspend the applicant as Chief Executive Officer was passed. The applicant successfully obtained an interim court order suspending that resolution.

On 9 July 2020, the sixth respondent's Board of Directors wrote a letter to the applicant advising him that his suspension pending disciplinary hearing had been withdrawn and that he was now reinstated as Chief Executive Officer with no loss of salary or benefits.

In less than 24 hours of reinstatement, a letter terminating the applicant's employment on three months' notice was written by the same Board members of the sixth respondent and was delivered to the applicant.

Again, the applicant successfully obtained an interim court order on 15 July 2020, under case number HC3611/20, suspending the effectiveness of the letter of termination pending the hearing of the matter and its final determination on 4 August 2020.

The interim order has not yet been confirmed or discharged. Judgment is still pending in this court.

That notwithstanding, the first respondent, on behalf of the sixth respondent, wrote a letter to the applicant, on 21 December 2020, withdrawing the letter of termination of contract of 9 July 2020 and reinstating him as Chief Executive Officer. On the same date, but in a different letter, the first respondent wrote to the applicant again terminating his employment contract on three months' notice with immediate effect.

The applicant was advised that the President of the Republic of Zimbabwe had given his endorsement for his removal from office of Chief Executive Officer of the sixth respondent. The applicant was further advised that he would be paid in lieu of the three months' notice as his services were no longer required.

It is this letter which prompted the applicant to file the present urgent chamber application.

It is the applicant's averment that the letter of termination of his employment contract is illegal as his contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.

Furthermore, there is an interim court order by CHINAMORA J barring the respondents from giving effect to a similar letter which sought to terminate his contract of employment on notice.

In this application, the applicant is seeking, as against the respondents, a prohibitory interdict in the interim and a declaratur on the return day. The reliefs are couched as follows:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the letter dated 21 December 2020, authored by the 1st respondent, purportedly for and on behalf of the 6th respondent, addressed to the applicant, be and is hereby declared null and void.

2. Any processes taken pursuant to the said letter be and are hereby declared null and void.

3. That, any respondent(s) opposed to the granting of the Final Order be ordered to pay costs, jointly and severally, the one paying the others to absolved on a legal practitioner-client scale.

INTERIM RELIEF GRANTED

Pending the confirmation of the Provisional Order, the applicant be and is hereby granted the following relief:

1. That, the effect of the letter dated 21 December 29020, drafted by the 1st respondent for and on behalf of the board directors of the 6th respondent, be and is hereby suspended as well as any further processes taken in furthering its objects.

2. The respondents be and are hereby interdicted from publishing the illegal dismissal of/or termination of the applicant's contract of employment in terms of section 11(2) of the Public Entities Corporate Governance (General Regulations S.I.168 of 2018) and further interdicted from advertising applicant position in terms of section 8 of the same Statutory Instrument.

3. That, the respondents be interdicted from terminating the applicant's employment contract pending the final determination of this matter and case number HC3611/20.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the respondents or their legal practitioners by the applicant's legal practitioners.”

In short, in the interim, the applicant wants the respondents barred from terminating his employment contract pending the return date. He also wants the respondents barred from publishing his dismissal or termination of his employment contract and advertising his position. On the return date, the applicant will be seeking a declaratur that the letter of 21 December 2020, terminating his employment contract, is a nullity.

In response to the application, the respondents raised some points in limine which I deal with hereunder.

Lack of Jurisdiction

The respondents averred that this is a labour matter wherein the applicant is effectively seeking an order setting aside the termination of his employment contract on notice on 21 December 2020. The respondents contended, that, the applicant should challenge the termination thereof in terms of the Labour Act [Chapter 28:01]. The applicant ought to approach a labour officer who should determine whether or not there is need to follow due process when terminating an employment contract on notice. The ruling should thereafter be submitted to the Labour Court for confirmation or discharge in terms of the provisions of Amendment Act No.5 of 2015.

The Labour Court is set up as a specialist court to deal with employment matters in terms of section 172 of the Constitution.

This court has no jurisdiction to determine the applicant's complaint that his contract was terminated without regard to due process. This court has no inherent jurisdiction to deal with purely employment matters; its jurisdiction having been restricted by the Constitution which created the Labour Court as a specialist court to handle employment matters.

Counsel for the respondents submitted, that, in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 it was clarified that the High Court does not have jurisdiction to deal with labour matters. He referred to paragraph 47 of the judgment. It reads;

“On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe. The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.”

Counsel for the respondents argued, that, in casu, the applicant is claiming that he was unlawfully dismissed.

Referring to paragraph 42 of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, he submitted that the procedure for dealing with an unfair labour practice is to be found in section 93(5) of the Labour Act. Paragraph 42 provides:

“The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act. The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration or that failing, proceed in terms of section 93(5) of the Labour Act.”

In response, counsel for the applicant submitted that Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the judgment that the respondents seek to rely on, is not applicable to the present matter. The circumstances are different.

He submitted that whilst in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 the appellant had approached this court for an order that he be paid monies that were due to him arising out of his employment contract; in casu, the applicant is seeking an interdict, a prohibitory interdict to be specific. He makes that clear in paragraph 5 of his founding affidavit. The Labour Court cannot grant that relief. It has no jurisdiction to grant interdicts whereas the High Court has jurisdiction to grant such.

Counsel for the applicant further submitted that in any case the Labour Act is not the applicable statute in the applicant's case, but the Public Entities Corporate Governance Act [Chapter 10:31] and its General Regulations.

He submitted that this is in terms of Chapter 9, and more specifically section 197 of the Constitution of Zimbabwe (Amendment Act No.20) 2013 which provides for terms of office of heads of Government-controlled entities. Section 197 of the Constitution reads;

“An Act of Parliament may limit the terms of office of chief executive officers or heads of government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.”

Counsel for the applicant submitted that the Act of Parliament being referred to in section 197 of the Constitution is the Public Entities Corporate Governance Act, and not the Labour Act.

He submitted that section 16 of the Public Entities Corporate Governance Act is the provision which deals with the termination of the term of office of the head of a State-controlled commercial entity.

Counsel for the applicant further submitted that Chapter 9 of the Constitution and the Public Entities Corporate Governance Act do not prohibit the High Court from exercising jurisdiction in a matter such as the present one.

He further submitted that a reading of section 3(1) of the Labour Act shows that the Labour Act is not applicable to the applicant who is governed by section 197 of the Constitution. It was his argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197.

To begin with, it is pertinent to point out that counsel for the respondents did not dispute that the Public Entities Corporate Governance Act is the Act that was enacted to provide for the governance of public entities in compliance with Chapter 9 of the Constitution and in terms of section 197 thereof.

To resolve the issue of whether or not this court has jurisdiction in this matter, it is necessary to examine the provisions of section 3 of the Labour Act which deals with the application of the Act. It provides;

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

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

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

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

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

(c) Such other employees of the State as the President may designate by statutory instrument.”

In City of Gweru v Richard Masinire SC56-18 BHUNU JA interpreted this provision.

He stated that it confers jurisdiction of the Act over all employees except those it expressly excludes; and those that are expressly excluded are:

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

2. Members of the Public Service.

3. Members of a disciplinary force of the State.

4. Any other employee designated by the President in a Statutory Instrument.

In casu, I do not believe that the applicant falls in any one of the excluded categories.

I am not in agreement with counsel for the applicant's argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197 of the Constitution. Rather, I am in agreement with counsel for the respondents argument that the applicant's conditions of service are not found in the Constitution, but in an Act of Parliament, the Public Entity Corporate Governance Act which was enacted in compliance with Chapter 9 of the Constitution, which chapter includes section 197.

One of the purposes of the Public Entity Corporate Governance Act, as can be seen from its preamble, is to provide a uniform mechanism for regulating the conditions of service of members of public entities and their senior employees.

Section 197 of the Constitution does not provide any conditions of service for employees of Government controlled entities. It simply says that An Act of Parliament may limit the terms of office of Chief Executive Officers or Heads of Government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.

Surely, this provision cannot, by any stretch of the imagination, be interpreted as providing conditions of service.

Clearly, the applicant does not fall within the category of employees that are excluded by section 3 of the Labour Act [Chapter 28:01]. The Labour Act is therefore applicable to him.

In the letter of termination of the applicant's employment contract, dated 21 December 2020, it is not indicated in terms of which law (whether the Labour Act or the Public Entities Corporate Governance Act) the employment contract was terminated.

The letter is silent.

However, the letter of termination of 9 July 2020, although it was subsequently withdrawn, made it clear that termination had been made in terms of section 12(4) of the Labour Act. On the other hand, the applicant avers that his contract of employment, as read together with section 16 of the Public Entities Corporate Governance Act, which provision provides for the dismissal of Chief Executive Officers, does not provide for the termination of his employment contract on notice.

The point that the applicant was making here was that his employment contract was terminated in terms of the Public Entities Corporate Governance Act which has no provision for the giving of notice.

I will not be drawn into making a determination of whether or not the notice was lawfully given. That is not the issue before me.

The issue that is before me is simply whether or not this is an employment matter which should be determined in terms of Labour Law.

If it is a labour or employment matter, I will decline jurisdiction on the basis of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 that I have already referred to above.

It was counsel for the applicant's further argument, that, even if the Labour Act is applicable to the applicant, this court has jurisdiction to deal with the present application because the applicant is seeking an interdict which only the High Court, and not the Labour Court, can grant.

As was correctly argued by counsel for the respondents, in deciding what relief an applicant is seeking, the court must look at the grounds of the application and the evidence adduced in support of the order prayed for; see Cainos Chingombe & Another v City of Harare SC177-20…,.

The fact that the applicant is seeking a particular relief is not itself decisive. In other words, what is important, or what matters, are the grounds on which the application is based rather that the order or relief that is being sought. Regard should be had to the substance of the application and the averments contained therein instead of the relief that is being sought.

The relief being sought cannot be the sole decider of whether or not a matter is properly before the Court. The decider is the dispute that has been placed for adjudication before the court.

In casu, in paragraph 5 of the founding affidavit, the applicant outlined the purpose of his application. He averred that he is seeking a prohibitory interdict and ancillary relief to the effect that the purported letter of dismissal be declared null and void. From paragraphs 16 to 18 he outlined what he termed “the complaint.”

In paragraph 16 he averred, that, “the letter of termination is illegal and has no force of law in that the applicant's contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.”

In paragraph 18, he averred, that, “the letter of termination…, is illegal and contemptuous in that it seeks to circumvent an extant interim court order…, of this Honourable Court under case number HC3611/2020…,.”

In the subsequent paragraphs, the applicant went on to make averments which deal with the requirements of an interdict.

In paragraph 19, he averred that he has a clear right to lawful process by the respondents which right was wantonly violated. On irreparable harm, he averred, that, in terms of his contract as read together with the Public Entities Corporate Governance General Regulations he cannot be dismissed on notice as purported in the letter of termination.

He further averred that assuming that the President gave his endorsement, the decision to dismiss him was illegal, arbitrary, and an affront to the laws of natural justice in that he was never invited to make any representations.

He averred, that, most importantly, the essential processes to terminate his contract were not compiled with.

He averred that he has rights in terms of the interim court order which interdicts the respondents from terminating his contract on notice.

He averred that he stands to suffer irreparable prejudice by the unlawful process.

What is clear from the applicant's averments is that although he avers that he is seeking an interdict, he is basically challenging termination of his employment contract by way of notice, a way which he says is not provided for in his employment contract and in the General Regulations of the Public Entities Corporate Governance Act.

He is challenging the legality of the termination process.

He says it was unlawful, hence his request for a declaratur that the letter of termination, and any processes taken pursuant to the said letter, are null and void.

I take the view that this is a dispute that relates to the employment relationship between the applicant and the sixth respondent. The dispute is whether or not the applicant's employment contract was lawfully terminated.

Such a dispute falls for determination in terms of labour law under the Labour Act and its structures.

Section 2A of the Labour Act spells out the purpose of the Act as follows:

“2A(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.”

Section 2A(1)(f) of the Labour Act is pertinent. It seeks to secure a just, effective and expeditious resolution of employment disputes and unfair labour practices.

In terms of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the High Court has no jurisdiction in labour and employment issues. Clearly this is not a matter for an interdict and a declaratur.

Under the guise of seeking an interdict and a declaratur, the applicant is actually challenging the termination of his employment contract and seeking reinstatement as Chief Executive Officer (CEO) of the sixth respondent through the back door.

In view of the foregoing, I come to the conclusion that I have no jurisdiction to deal with this matter which is an employment matter.

In the result, it be and is hereby ordered that:

1. Jurisdiction is declined.

2. The applicant shall pay the respondents' costs.

Appealed
HH137-19 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: CHIKOWERO J

At the end of oral argument, on 13 February 2019, I upheld the special plea and dismissed the plaintiff's claim with costs. The background facts are as follows:

The plaintiff is a male Zimbabwean adult: so is the first defendant, the Executive President of the Republic of Zimbabwe until sometime in November 2017. The second defendant is the latter's spouse. The third defendant is a company duly incorporated in terms of the laws of Zimbabwe.

According to the plaintiff, the third defendant is the first and second defendants' investment vehicle.

On or about 1st January 2007, the plaintiff entered into an oral employment contract with the first and second defendants. In terms thereof, the plaintiff was employed by the two as their General Manager. Such employment was under the third defendant, the investment vehicle aforesaid. The material terms of the employment contract were these:

The contract, which was without limit of time, entailed the plaintiff performing, for the third defendant, all such acts as are customarily carried out by a person in the position of a General Manager. Further, the plaintiff was also required to, and did, undertake all such work as the first and second defendants would require of him - including that which had nothing to do with farming operations.

On 6 October 2015, and in breach of the terms of the employment contract, the first and second defendants, by dint of illegitimate influence, force, and might required the plaintiff to relinquish his position.

However, he was ordered to continue working, for no salary, until 6 November 2015.

As a result of the unlawful termination of the employment contract, the plaintiff claimed, from all three defendants, damages for the period 1st October 2015 to 6 November 2015. The amount claimed was $8,909=14, computed on the basis of the plaintiff's salary. The plaintiff also claimed $69,492=69 being cash in lieu of leave, arising from accrued leave days at the rate of 25 days per year. The total period covered by this claim spans from 1st January 2007 to 6 November 2015.

Further, the plaintiff alleged, that, at the time of the termination of the employment contract, the plaintiff was entitled to the contractual benefit of a motor vehicle. Consequently, the plaintiff claimed payment of the sum of $90,000 averring that as the value of the motor vehicle.

Finally, the plaintiff alleged, that, upon the enforced termination of the employment contract, the first and second defendants employed public media to denigrate the plaintiff at various gatherings.

To the plaintiff, this imperilled his future prospects of employment.

The plaintiff complains that the acts of the defendants, in interfering with his employment prospects, are wrongful and deliberate, and resulted in the plaintiff losing potential employment. The damages claimed in this regard are in the sum of US$588,000.

To this suit, the defendants filed a special plea in bar.

In so far as the defendants are concerned, the High Court has no jurisdiction to entertain this matter as it is a purely labour dispute in which the Labour Court is the Court of first instance in terms of section 89(6) of the Labour Act [Chapter 28:01].

The cause of action involves an allegation of non-payment of post termination of employment wages and other benefits, as set out in section 13 of the Labour Act; which allegation, if proved, would amount to an unfair labour practice.

Further, the defendants averred, the procedure for dealing with allegations of unfair labour practices is set out in section 93 of the Labour Act meaning that the matter must be dealt with by the Labour Court.

The High Court has had its jurisdiction ousted by section 89(6) of the Labour Act [Chapter 28:01].

The defendants averred that the intention of the legislature, in enacting section 13(1) of the Labour Act, was to enable an employee who alleges he is owed terminal benefits to use those provisions to enforce payment. Parliament created the necessary machinery in the Labour Act to deal with issues of non-payment.

The defendant further averred, that, in as much as the High Court has original jurisdiction to deal with civil matters, as set out in section 171(1) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013, this does not usurp the power of the Labour Court.

Parliament has, by virtue of sections 172(2) and (3) of the Constitution, circumscribed matters over which the Labour Court has exclusive jurisdiction to the exclusion of other courts, the High Court included, so pleaded the defendants.

Resultantly, I was urged to uphold the special plea and dismiss the entire claim with costs on the higher scale.

Analysis

This court has interpreted sections 171(1)(a) and 172(2) of the Constitution to mean, that, although the High Court has original or inherent jurisdiction in respect of all civil matters in Zimbabwe, in so far as labour matters are concerned, the intention of the legislature is that the Labour Court be the court of first instance: Stanley Machote v Zimbabwe Manpower Development Fund HH813-15; Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H) and Triangle Limited and Others v Zimbabwe Sugar Milling Industry Workers Union and Others HH74-16.

I agree with counsel for the defendants, that, the drafters of the Constitution deliberately separated civil and labour causes in sections 171(1)(a) and 172(2) of the Constitution.

While the High Court's original jurisdiction in civil matters was constitutionally entrenched in the former provision, the Constitution went on to provide for a specialized Court to deal with labour and employment disputes, at first instance, in the latter provision.

The Labour Court is that specialized Court.

The Constitution recognizes the distinction between labour matters and civil matters.

My understanding of the National Employment Council for the Construction Industry v Zimbabwe Nantong International (Private) Limited SC01-18 judgment is that the Supreme Court left open the question of the jurisdiction of the Labour Court vis-a-vis the current Constitution.

I am aware that section 13 of the High Court Act [Chapter 7:06] reads:

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

My construction of this provision, in conformity with section 171(1)(a) and 172(2) of the Constitution, is that labour matters are excluded from the “all matters within Zimbabwe.”

Any other interpretation would mean the High Court Act, in this regard, supercedes the Constitution. That cannot be so.

Indeed, section 13 of the High Court Act itself makes that section subject to any other law.

My view is that that other law is the current Constitution, particularly sections 171(1)(a) and 172(2).

I also hold the view that even if section 13 of the High Court Act were inconsistent with section 89(6) of the Labour Act, the latter would prevail by virtue of section 2A(3) of the Labour Act. It reads:

“2A Purpose of the Act

(1)…,.

(2)…,.

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

With the foregoing in mind, I now examine each of the plaintiff's claims in turn. In doing so, I am mindful of the need to determine, in respect of each, whether the same is purely civil or labour/employment related.

The US$8,909=14 damages claim

I accept that this is not a claim for arrear salary, despite the fact that paragraph 2.1 of the declaration states that the computation is based on the salary the plaintiff was earning as at October 1st 2015. There was therefore no contract of employment to talk about for the period October 1st 2015 to November 6th 2015. But, my finding is that this claim remains a labour matter.

Compelling someone to work without being employed, and without therefore being entitled to any remuneration, is forced labour. Forced labour is defined in the interpretation section of the Labour Act to mean:

“any work or services which a person is required to perform against his or her will under the threat of some form of punishment.”

When a person is ordered to continue working for no remuneration, after the enforced termination of an employment contract, that, to me, is forced labour. It certainly is not voluntary work. It also is not work undertaken in terms of a contract of employment, for no such contract subsists.

It is for these reasons that I upheld the special plea in respect of this particular claim.

Cash in lieu of leave in the sum of US$69,492=69 for the period 1 January 2007 to 6 November 2015

Despite alleging that the employment relationship was terminated on 1 October 2015, the plaintiff claims cash in lieu of leave up to 6 November 2015.

I respectfully am unable to associate myself with the ratio decidendi in Chiweshe & Others v Air Zimbabwe Holding (Pvt) Ltd 2014 (2) ZLR 837 (H). It was therein held that outstanding salaries and allowances owed to ex employees rendered efforts to recover same a debt collection exercise, rather than a labour issue, because the employment relationship had ended.

Were I to follow that reasoning, it would mean, that, I would also find that the summons issued by the plaintiff, to recover the cash in lieu of leave, is also a step in debt collection.

Section 13 of the Labour Act precludes me from making such a finding.

Indeed, I am unable to see how, merely because the employment relationship has ended, a claim for cash in lieu of leave mutates from being founded on the terminated employment contract to being a pure civil debt. To hold otherwise would be akin to saying a claim founded on delict ceases to be delictual in nature once the wrong has been committed.

There are legion decisions, both by the Labour Court and the Supreme Court, where judgments have been granted in respect of claims for payment of cash in lieu of leave, properly treated as labour matters: see, eg. First Mutual Life Assurance Ltd v Muzivi 2007 (1) ZLR 325 (S).

I need only add that the only time that the High Court becomes seized with such matters is when dealing with applications for registration of such judgments for purposes of enforcement. Such applications are purely procedural, not substantive. In disposing of such applications, the High Court is not called upon to delve into the merits of the matter.

Quite clearly, I had no option but to uphold the special plea in respect of this claim.

The US$90,000 being the value of the motor vehicle benefit due to the plaintiff by the defendants

The benefit, being ex contractu, what I have said in respect of the claim for payment of cash in lieu of leave applies in respect of this claim with equal force. I, accordingly, need not say more.

US$588,000 being delictual damages due from the defendants to the plaintiff for loss of employment prospects and/or the impairment of economic prospects

I do not think the appellation “delictual” vis-a-vis this head of damages transforms it into a delictual matter. What was important to me was that the damages suffered were to the plaintiff's employment prospects. The claim therefore remained rooted in Labour Law.

The principles applicable in investigating the questions of liability and quantum of damages are Labour Law principles. There is a special platform for that.

It is the Labour Court.

Such factors would include the age, health, and qualifications of the plaintiff. The Labour Court, being a court of equity, is statutorily created and enabled to undertake that exercise: see generally Delta Beverages (Pvt) Ltd v Kudakwashe Murandu SC38-15.

Costs

As for the scale of costs, I accept that there has been no pronouncement by either the Supreme Court or the Constitutional Court on the jurisdiction of the Labour Court in light of the current constitutional provisions.

Nyahora v CFI Holdings (Pvt) Ltd 2014 (2) ZLR 607 (S) did not consider sections 171(1)(a) and 171(2) of the Constitution vis a vis the jurisdiction of the Labour Court and the High Court in respect of labour matters.

Further, Chiweshe & Others v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H) is just one of a number of High Court decisions to the effect that the High Court, being a court of inherent jurisdiction, can entertain any matter brought before it - labour matters included.

In light of this unhappy state of the law, and in the exercise of my discretion, I saw no justification in awarding punitive costs against the plaintiff.

The law needs to be authoritatively laid out. I am unable to fault the plaintiff for assisting in that endeavour. His submissions, although not finding favour with me, were invaluable in enabling me to dispose of the special plea.

Finally, I wonder why the Labour Court is established and called by that name if labour matters can continue to be dealt with by the High Court at first instance.

In the result, I ordered that;

1. The special plea is upheld.

2. The plaintiff's claim is dismissed with costs.

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

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

(b)–(d)…,. (not relevant)

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

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

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

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

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it....,.

On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe.

The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices, which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.

On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from 11 November 2014, to be served from home i.e. the applicant was not to report for work but would nonetheless be paid his salary.

In the aforesaid notice to terminate the applicant's employment contract the respondent stated:

“…, the corporate hereby undertakes to pay the notice period and all outstanding payments due to you on a monthly basis spreading over a period of four months through the corporate's payroll until all such is extinguished in full. These payments shall be made subject to such statutory deductions as are applicable. A statement of account denoting how much you are entitled to shall be availed to you by the 30th November 2014. Kindly approach the human resources department for your termination clearances and statement of account, and affix your signature to the tear off below to signal your receipt of this letter…,.”

The letter of notice was delivered upon the applicant who refused to sign the tear off slip.

Nothing turns upon the applicant's refusal to sign the tear off slip because the validity of the termination being a unilateral act by the respondent (employer) would not require acceptance by the applicant (employee) through signing the letter. It is sufficient for its validity that the letter was conveyed upon the applicant.

By letter dated 29 November 2014, the respondent wrote to the applicant setting out the amounts which it acknowledged to be owing by it to the applicant. The letter referred to is attached as annexure 'C' to the applicant's founding affidavit and reads in material part as follows:

Re: Statement of account for Aswell Nyanzara EC No. BD1013

“We refer to the above matter.

Please be advised that Mbada Diamonds acknowledges owing you a total amount of USD$9,695=02 which was calculated starting from 1 February 2010 being the date of engagement. The detailed breakdown is as follows:

Item Value
1. Gratuity payable $1,331-95
2. 90 days of CILL payable $3,073-85
3. 0.00 months historic overtime $-
4. April & May 2014 overtime @ 1.5 $-
5. April & May 2014 overtime @ 2.0 $ 102-46
6. Back pay for June & July 2014 $ 576-00
7. Salary for September, October & November $2,305-38
8. 3 months using current work arrangement $2,305-38
Grand Total $9,695-02

Please note that all the above amounts are gross figures, and, as such, are subject to applicable statutory deductions. Mbada Diamonds will deduct any loans or amounts advanced to you from the net amount…,.

A Zindi (Mr)
The Human Resources Manager
For and on behalf of Mbada Diamonds”

As with the letter of termination of employment on notice, which the applicant refused to sign, he also did not sign the letter setting out the statement of account.

The applicant indicates, in his answering affidavit, that, he did not sign his own copy of Annexure C but signed the one which the respondent retained. He attributes his failure to sign the letter to the fact that he is a layman and thought it unnecessary to sign the copy which he retained and has attached to his application.

Although the respondent appears to take issue with the failure by the applicant to sign the statement of account in acknowledgment, it is, in my view, a matter or omission of no great moment because the authenticity of annexure 'C' is common cause between the parties.

I shall advert to analysing its contents later when I consider the jurisdictional issues raised by the respondent.

On 5 May 2015, the applicant filed the present court application whose heading reads 'COURT APPLICATION FOR PAYMENT OF MONEY'. The application is supported by the applicant's brief affidavit consisting of seven (7) paragraphs, the material ones which read as follows:

“4. On 11 November 2014, the respondent terminated my contract of employment on notice. A copy of letter of termination of contract of employment is attached hereto marked “B”.

5. On 29 November 2014, the respondent marked out my terminal benefits which amounted to $9,695=02. A copy of the statement of account from the Human Resources Manager is attached hereto marked 'C'.

6.1. Apart from the $9,695=02, the respondent owed me the following amounts;

(a) Night Allowances - $1,941=10 Annexure 'D'.

(b) Unrefunded portion of the pension fund - $799=20 Annexure “E”.

6.2. Therefore, the total amount of money which I am claiming from the respondent is $12,435=32 arrived at as follows;

7. I have not been paid a single cent from these moneys that are due to me despite demand on several occasions. The respondent has simply neglected, failed and/or refused to pay. I am applying for an order granting me the aforesaid sum for purposes of enforcement …,.

WHEREFORE, I pay for an order in terms of the Draft.

Thus sworn to at Harare this 5th day of May, 2015

Signed: Aswell Nyanzara”

Annexures 'D' and 'E' referred to in paragraph 6.1(a) and 6.1.(b) of the applicant's founding affidavit are, respectively, a letter whose date is not clear but is headed TERMINAL BENEFITS FOR ASWELL NYANZARA…,. NIGHT ALLOWANCE.

Annexure D is addressed to the respondent and is purportedly written by one E Munongerwa representing NUMQUI SWZ. There is a date stamp embossed National Union of Mines Quarrying Iron and Steel Workers of Zimbabwe. It appears that NUMQUISWZ is the abbreviation for the union. The letter purports to calculate the applicant's night allowance at $1,941 as the amount due to the applicant by the respondent.

Annexure E is a letter whose origins are not clear nor stated except that it is dated 4 March 2015, is addressed to the respondent's Principal Officer, a Mr Kennedy Bingwa, and is signed by or on behalf of Alackias Gavure – Administration Manager.

The letter is headed Mbada Diamonds Pension Fund: Retirement – Nyanzara Aswell (BD1013).

The author of Annexure E states in the letter, that, the sum of $1,834=58 was transferred into the “members” NMB Bank account number 290073502 on 2 March 2015. The payment represents the full commutation due to the member (comprising member and employer contributions together with interest thereon). The writer further states, in the letter, that, the 'balance retirement capital could not secure the statutory minimum monthly pension currently pegged at $30. The last paragraph of the letter reads as follows:

“The member has been refunded the 'funded portion' of his contributions made up to 30 November 2013. The unfunded portion, amounting $799-20, has not been refunded pending receipt of the outstanding contributions relating to the period 1 December 2013 to 31 May 2014.”

In the draft order, the applicant prays for an order as follows:

“IT IS ORDERED THAT:

1. Respondent shall pay applicant $12,435-32 together with interest thereon at the rate of 5% calculated from the date of service of the Court Application on Respondent to the date of payment together with costs of suit on attorney–client scale.”

The respondent, in opposing the application, and as shown upon a reading of its opposing affidavit, has raised two issues:

(i) The first issue is that the dispute between the parties is purely a labour matter for which this court has no jurisdiction to determine as the dispute is covered under section 13 of the Labour Act [Chapter 28:01]. As such, so the respondent asserts, the disputes should be dealt with in terms of section 93 of the Labour Act....,.

The applicant, in the answering affidavit, averred, that, the jurisdiction of this court arises from the fact that the respondent acknowledged its indebtedness to the applicant by letter dated 29 November 2014 i.e. annexure 'C' to the applicant's founding affidavit....,.

The issue of jurisdiction of this court, in labour matters, remains unsettled with judgments delivered by this court not being uniform or agreed.

It is not my intention or function to rationalize or harmonize conflicting decisions of this court. I will therefore confine myself to arguments raised herein.

The crisp issue before me is, that, the applicant, whose employment contract with the respondent was terminated, seeks the intervention of this court that he be granted an order suffering or ordering the respondent to pay him his terminal benefits which have remained unpaid since the date of termination of employment.

The applicant appreciates and accepts that the dispute before me is labour-related.

He however argues that this court should rule in his favour because there is no labour dispute to be determined but an enforcement of payment of terminal benefits. He argues that where the employer has acknowledged itself to be indebted to the employee, then the employee can seek relief from this court since the action would derive from an acknowledgment of debt, so to speak.

This court has ruled that the jurisdiction of this court has not been ousted in matters involving an admitted indebtedness by the employer to an employee - even if such indebtedness arises from a labour relationship. There is extensive discussion on the issue by KUDYA J in McCosh v Pioneer Corporation Africa Limited HH164-10: see also Madinda Ndhlovu v Highlanders Football HB95-11; Wellington Takawira v CZI Incorporated (Pvt) Ltd HH586-13.

KUDYA J did accept, and quite rightly so, that an acknowledgment of debt can found a cause of action. He cited the cases Chimutanda Motor Spares (Pvt) Ltd v Musare and Anor 1994 (1) ZLR 310 (H)…,; Gondwe v Bangajena 1988 (1) ZLR 1 (H)…,.; and Salisbury Municipality v Partington & Anor 1961 (3) SA Z18 (SR)…,.

The learned judge, however, found against the plaintiff, that, in his declaration, the plaintiff based his claim on unpaid arrear salary and not upon an acknowledgment of debt. That being so, he dismissed the claim on the basis that its determination was one for the Labour Court consequent upon the provisions of section 89(6) of the Labour Act [Chapter 28:01].

In Madinda Ndhlovu v Highlanders Football HB95-11 and Wellington Takawira v CZI Incorporated (Pvt) Ltd HH586-13, the learned judges, CHEDA J and UCHENA J…, granted the claims for payment of outstanding salaries/benefits after holding that the employers in both cases had acknowledged the debts and that therefore there was no labour dispute for determination under the Labour Act.

In casu, this is the applicant's line of reasoning.

If I follow the decisions of this court which have held that where the employer has acknowledged itself to be indebted to the employee in a liquidated amount, the employee can properly sue for relief in this court on the basis of such acknowledgment of debt; I do not, however, find that, in the present matter, the employer executed an acknowledgment of debt.

The documents relied upon by the applicant do not pass for a valid acknowledgment of debt.

By definition, an acknowledgment of debt is a document which contains an unequivocal admission of liability by the debtor. The amount owed by the debtor must be specified and so should the manner and time of payment. In essence, an acknowledgment of debt must pass the test of a liquid document, i.e a document which proves the debtor's indebtedness without extraneous or outside evidence.

In casu, the applicant relied on Annexure C as herein before quoted.

The said annexure states that the sum of USD$9,695=02 is a gross figure from which statutory deductions, loans, and advances will have to be calculated and deducted.

In my view, the document does not therefore pass the test of an acknowledgment.

It is arguable whether an order for payment subject to the stated deductions would not be appropriate. The applicant does not however ask the court to grant such an order but prays for payment to him of the whole amount of USD$9,695=02.

To make matters worse for the applicant, he also seeks payment of USD$1,941=01 in night allowances.

This amount was not acknowledged by the respondent and is disputed in the opposing affidavit by the respondent.

The applicant does not, in the answering affidavit, address the respondent's denial.

The same applies with regards the further sum of USD799-20 coined un-refunded portion of Pension Fund which the applicant claims.

Quite clearly, therefore, the respondent cannot, in the light of the definition of an acknowledgment of debt, be held to have acknowledged itself to be indebted to the applicant in the sum of USD$12,435=32 or in any of the individual sums of money which add up to the said USD$12,435-32 claimed in the draft order.

In passing, I considered the argument raised by the respondent, that, Annexure 'C' setting out how the figure of USD$9,695-02 was arrived at is marked 'Without Prejudice' and therefore should not be relied upon by the applicant as it is inadmissible.

It is not correct that in the law of evidence, it is a rule of thumb that a letter marked “without prejudice” cannot be disclosed or used in proceedings. The words 'without prejudice' ought to be considered as protecting the rights of the writer of the letter. In other words, the without prejudice statement or letter should not prejudice the applicant from adopting a contrary position from that it would have adopted in the without prejudice statement letter or communication.

I do not intend, however, to belabour the issue because of the view which I have taken of the matter, which view or position is favourable and therefore not prejudicial to the applicant, that, the letter in issue does not pass for an acknowledgment of debt since the amounts set out therein are subject to deductions which are not stated nor agreed to by the parties.

I have also considered the judgment of HUNGWE J in Mhangura Copper Mines Limited v Tayengwa Dugmore Muskwe HH443-15 and also took into account the fact that the respondent did not advance the issue of the admissibility of Annexure 'C' in its heads of argument nor indeed during oral argument.

The respondent was concerned more with the issue of the jurisdiction of this court to hear the matter.

Since the applicant's claim was essentially a claim for payment of terminal benefits arising from a terminated contract of employment, I asked the applicant's legal practitioner…, to address me on her understanding and interpretation of section 13 of the Labour Act [Chapter 28:01].

She submitted that whilst she noted that the section dealt with payment of wages and benefits upon termination of employment and the procedure to be followed, the applicant had proceeded on the basis of an acknowledgment of debt as there was no longer an employer/employee relationship between the parties.

Section 13 of the Labour Act reads as follows:

“13 Wages and benefits upon termination of employment

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

(a) Is dismissed from his employment or his employment is otherwise terminated, or…,.

(b) Resigns from his employment; or

(c) Is incapacitated from performing his work; or

(d) Dies;

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

A simple reading of the section shows that the legislature has codified the cause of action involving a failure by an employer to pay, within a reasonable time, post-termination of employment wages and other benefits, as set out in the section, to the ex employee. The legislature has defined the cause of action.

A failure by an employer to pay shall constitute an unfair labour practice.

It appears to me, therefore, that, if the wrong of failure to pay the wages and benefits has been done to or suffered by the employee, his/her remedy lies in what the Labour Act provides as the corrective remedy to be followed and implemented when an unfair labour practice has been committed.

In the definition section of the Labour Act, an unfair labour practice is defined as “unfair labour practice” means an unfair labour practice specified in Part III or declared to be so in terms of any other provision of this Act….,..

Section 13 of the Labour Act, albeit falling under Part IV of the Labour Act, nonetheless forms part of the Act and is therefore “any other provision of this Act.”

The respondent's legal practitioner…, correctly submitted, that, the procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

In my analysis, the applicant's claim involved the failure by his ex employer to pay the applicant wages and benefits to which he is entitled. It matters not, in my view, that the employer may have acknowledged itself to be indebted to the employee nor signed a document to that effect by whatever name called. The fact is that what would have been admitted to in such a document will be unpaid wages or benefits.

For as long as the acknowledgment involves non-payment of wages and benefits, as listed in section 13 of the Labour Act, then the wrong done to the employee is as defined in the section, i.e. an unfair labour practise.

It being an unfair labour practice, it must be dealt with in terms of the Labour Act.

Section 89(1) of the Labour Act provides for the hearing, by the Labour Court, of applications as set out therein, and, in particular, for the referral of a dispute to a labour officer.

Section 89(6) of the Labour Act provides that only the Labour Court should act as the court of first instance in hearing and determining matters set out in section 89(1) of the said Act.

In this case, the applicant has brought an application before the High Court to remedy an unfair labour dispute. I hold that the applicant has brought his application before the wrong court and should have filed the same before the Labour Court.

The High Court, in my view, has had its jurisdiction in respect of this matter ousted by section 89(6) of the Labour Act i.e. to bring such an application to this court as a court of first instance.

It appears to me, that, the Labour Court is the correct forum for an employee to seek a remedy as a court of first instance where the employer has breached section 13 of the Labour Act.

The fact that the employer may have acknowledged its obligations, arising from its statutory obligations to an ex-employee, in a separate document which may be in the form of an acknowledgment of debt, does not detract from the fact that what is acknowledged to be owing are the terminal benefits.

The employee should not go forum shopping to the High Court or Magistrates Court seeking to sue on an acknowledgment of debt which, in essence, will be a case for enforcement of payment of terminal benefits.

The relationship of employer/employee can loosely be said to continue after termination of employment as envisaged in section 13(1) of the Labour Act but only for the purposes of giving effect to or enforcement of payment of terminal benefits.

The Labour Act further provides as follows in the ensuing sections:

“13(2) Any employer who, without the Ministers' permission, withholds or unreasonably delays the payment of any wages or benefits owed in terms of subsection (1), shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(3) A court convicting an employer of an offence in terms of subsection (2) may order him to pay –

(a) To the employee concerned; or

(b) To any person specified by it for the benefit of the employee concerned; in addition to any other penalty which it may impose, an amount which, in its opinion, will adequately compensate the employee concerned for any prejudice or loss he had suffered as a result of the contravention concerned, within such period and in such instalments as may be fixed by such court.

(4) The court may, at any time, on the application of the employer/employee or specified person concerned, for good cause shown, vary an order made in terms of subsection (3).

(5) Sections 348 and 349 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall apply, mutatis mutandis, in relation to the amount specified in an order in terms of subsection (3) as if such amount were a fine referred to in those sections.

(6) Nothing in this section shall be construed as precluding a person referred to in subsection (1) or his representative or the executor of his estate, as the case may be, from claiming over and above any wages or benefits to which he or his estate is entitled in terms of subsection (1) damages for any prejudice or loss suffered in connection with such dismissal, termination, resignation, incapacitation or death, as the case may be.”

Section 347 of the Criminal Procedure and Evidence Act provides for the imposition of imprisonment or community service in default of payment of a fine as more fully provided for therein.

Section 348 of the Criminal Procedure & Evidence Act empowers and gives a discretion to the High Court or Magistrates Court, where such court has sentenced an offender to pay a fine, to issue a warrant or writ addressed to the Sheriff or Messenger of Court as the case may be authorizing him to levy the amount of a fine by “attachment and sale of any movable property belonging to the offender,” notwithstanding that, “the sentence directs that in default of payment of the fine, the offender shall be imprisoned or shall be permitted to render community service.”

In summary, therefore, apart from an ex-employee taking steps to remedy the wrong committed by his ex employer in not paying the former his wages and benefits as provided for in section 13(1) of the Labour Act through the unfair labour practice route, the employee can also report such defaulting ex-employer to the police to be dealt with by the Criminal courts since the failure to pay wages and benefits without Ministerial permission or reasonable grounds is criminalized.

The Criminal Court, upon convicting a defaulting ex-employer, will act in terms of sections 347 and 348 of the Criminal Procedure and Evidence Act.

At the hearing of this application, I asked counsel for the applicant whether she had ever thought of using the criminal route to enforce her client's (the employee's) claim. Counsel readily admitted that she had not thought of utilizing the option.

There is a growing trend by employee representatives to rush to the High Court with labour matters involving non-payment of terminal benefits by employers to employees whose contracts of employment would have been terminated.

Ingenious arguments are raised to persuade the High Court to agree to exercise jurisdiction. Such ingenuity involves arguing, as in the present application, that the cause of action arose from an acknowledgment of debt, which, strictly speaking, would not be true. The argument, in some cases, has found favour with this court and jurisdiction has been exercised.

In my view, and as already stated, the non-payment of wages and benefits, as set out in section 13(1) of the Labour Act, whether reduced to writing or acknowledged in an acknowledgment of debt, should not change the true facts.

If, for example, the argument that non-payment of wages and benefits, which is clearly an unfair labour practice and a crime, changes its character once reduced into an acknowledgment of debt is accepted and that it is no longer a labour dispute, it means that the Employee can no longer report the Employer to be dealt with in terms of section 13(2) of the Labour Act i.e. to be prosecuted.

The intention of the legislature, in enacting sections13(1) and 13(2) of the Labour Act was clearly to enable an employee who is owed terminal benefits by his employer to use those provisions to enforce payment.

The legislature created the necessary machinery in the Labour Act to deal with the issues of non-payment by either leaving it to the employee to invoke the unfair labour practice route or the criminal route.

I will leave it to be determined another day whether it would be a defence for an employer to argue that a breach of sections 13(1) and 13(2) of the Labour Act can be defeated by a defence that the parties (employer/employee) are now governed by an acknowledgment of debt in their relationship.

I however hold that in my reading of the provisions of the Labour Act, such a defence would not hold sway.

The last issue which I address is the impact of section 171 of the Constitution of Zimbabwe Amendment (No.20) Act 2013. The section reads as follows:

“171 Jurisdiction of High Court

(1) The High Court –

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

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

I am aware of some decisions of this court, like, for example, Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 and Water and Allied Workers Union of Zimbabwe v City of Harare HH238-15 in which this court has held that the effect of section 171(1)(a) of the Constitution is to restore the jurisdiction of the High Court in labour matters because the section gives the High Court original jurisdiction over all civil and criminal matters.

Labour matters constitute a species of civil matters and hence the High Court has original jurisdiction over them.

The interpretation given by this court in these matters is therefore to the effect that section 89(6) of the Labour Act has been overridden by section 171(1)(a) of the Constitution and that the original jurisdiction of the High Court extends to these civil matters of a labour nature in which the Labour Court exercised exclusive jurisdiction prior to the new Constitution being promulgated.

I find myself in respectful disagreement with the interpretation which has been placed upon section 171(1)(a) of the Constitution to the extent that it should be read granting the High Court jurisdiction over labour matters and as overriding section 89(6) of the Labour Act.

The Constitution creates, in sections 163 and 172, a Labour Court which is a special court. The sections read;

“163 The judiciary

(1) The judiciary of Zimbabwe consists of –

(a) The Chief Justice, the Deputy Chief Justice, and the other judges of the Constitutional Court;

(b) The judges of the Supreme Court;

(c) The Judge President of the High Court and the other judges of the court;

(d) The Judge President of the Labour Court and the other judges of that court;

(e) The Judge President of the Administrative Court and the other judges of that court; and

(f) Persons presiding over magistrates courts, customary law courts, and other courts established by or under an Act of Parliament.”

The Constitutional Court, Supreme Court, and High Court are, respectively, in sections 166, 168 and 170 described as “superior courts of record.”

These three courts, in terms of section 176 of the Constitution, have inherent powers to protect and regulate their own processes and to develop the common law or the customary law taking into account the interests of justice and the provisions of this Constitution.

The Labour Court is simply described as a court of record as with the Administrative Court in terms of sections 172 and 173 respectively.

The two courts do not enjoy original jurisdiction over all civil and criminal matters unlike the High Court.

On the contrary, the jurisdiction of these other courts, and their powers, are provided for by Acts of Parliament. Their jurisdictions then become limited to what the Acts of Parliament will have provided for.

In the case of the Labour Court, section 172 of the Constitution provides as follows:

“(1) The Labour Court is a court of record and consists of –

(a)…,.

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

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

My reading of section 172(2) and (3) leads me to the conclusion that section 171(1)(a) of the Constitution has not altered section 89(6) of the Labour Act.

Sections (2) and (3) of section 172 of the Constitution provides that an Act of Parliament should provide for the jurisdiction of the Labour Court in labour matters.

The current Labour Act has done so, and, in section 89(6), has provided for such over matters stated therein exclusively to the Labour Court. Section 89(6) of the Labour Act reads 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 subsection (1).”

What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts which, of necessity, must include the High Court.

I do not read section 171(1)(a) of the Constitution, which provides for original jurisdiction of the High Court over all civil matters, as conflicting with section 89(6) of the Labour Act.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution.

The purposive interpretation approach is, in the circumstances, to be preferred.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court, in specified matters, by the legislature, thus excluding other courts from exercising such exclusive powers, is proper.

The Labour Act, in section 89(6), provides that the Labour Court should be the court of first instance in the matters listed in that section.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional or adjudged to be so.

For example, the High Court, in the exercise of its original jurisdiction in a labour matter falling under section 89(1) of the Labour Act, would properly refuse to deal with a labour matter as a court of first instance on the basis that an enactment provides for the Labour Court as the first forum which should be petitioned.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute.

Original jurisdiction over civil matters should not be construed to mean that the High Court will agree to exercise jurisdiction over all matters irrespective of the fact there would be existing legislation governing the procedure, conduct, or determination of particular matters.

The Constitution recognises the existence of subordinate and special courts and creates them.

I do not read anything in section 171(a) of the Constitution which provides that the legislature cannot, in providing for the jurisdiction of the Labour Court, give exclusive jurisdiction over certain matters to that court, and, by implication, thus limiting or excluding jurisdictional powers of other courts to deal with such matters.

It would not, in my view, amount to defeating the exercise of original jurisdiction over a matter where a litigant makes a direct approach to the High Court in respect of a matter listed in section 89(1) of the Labour Act and the High Court rules that the litigant should, by virtue of section 89(6) of the Labour Act, direct his matter to the Labour Court as the court of first instance.

Approaching the Labour Court first, as required by section 89(6) would be the domestic remedy which a party must first seek.

Disposition

In view of the position which I have taken of the matter, and the conclusions I have reached on the jurisdiction of this court vis-a-vis the provisions of the Labour Act and the Constitution, I would accordingly rule as follows;

This application is dismissed with no order as to costs.

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

The applicants approached this court seeking a provisional order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. The 1st respondent, its members, and all other persons acting through it and on ...

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

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

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

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

HH176-22 : NATIONAL PHARMACEUTICAL COMPANY (PVT) LTD vs WALTER NHAU
Ruled By: MUCHAWA J

This is an application for rei vindicatio made in terms of common law. The following draft order is sought:

“1. The application for rei vindicatio be and is hereby granted.

2. The respondent be and is hereby ordered to surrender the Mazda BT50 motor vehicle registration number AFF 1103 to the applicant's offices within forty-eight (48) hours of this order.

3. In the event that respondent fails to comply with the order in (2) above, the Deputy Sheriff be and is hereby empowered to seize, from the respondent, and deliver to the applicant the Mazda BT50 motor vehicle registration number AFF 1103 without notice.

4. Should the application be opposed, respondent shall pay costs of suit on an attorney and client scale.”

It is common cause that the respondent was employed by the applicant in terms of a fixed term contract which was to lapse on 31 December 2024, in the capacity of Human Resources Manager.

On the 14th of July 2020, the respondent was served with a notice of termination of employment contract in terms of section 12(4a)(c) of the Labour Act [Chapter 28:01], as read with his employment contract.

On the 27th of October 2020, the respondent referred to conciliation, before a labour officer, his complaint of unfair dismissal.

That matter is still pending.

It appears from supplementary affidavits filed in this matter, that, a meeting was held on 26 May 2021, between the applicant and the respondent which explored the possibility of reinstatement and withdrawal of all pending cases.

Nothing came out of it as the respondent's post was then advertised on 7 November 2021 and respondent applied to resume duty.

It is the applicant's case, that, it is the owner of the vehicle in issue which was only availed for use by the respondent in furtherance of the employer's interests during his employment. It was submitted that since the respondent's contract of employment had been terminated, his entitlement to possess and use the vehicle had ceased and he was bound to surrender it. It was argued that, as the owner, the applicant had a vindicatory right against the whole world - the respondent included.

In opposition, the respondent took a point in limine that the High Court has no jurisdiction, in the first instance, to deal with this matter, which jurisdiction lies with the Labour Court in terms of section 89(6) of the Labour Act.

I heard the parties on this point, and on the merits, and reserved my judgment. This is it, starting with the point in limine.

Whether the High Court has jurisdiction to deal with this matter

Counsel for the respondent submitted, that, since the motor vehicle in issue came into the respondent's hands by virtue of his employment contract, whose termination has been challenged, this is a pure labour matter which falls within the purview of section 89(6) of the Labour Act and the High Court's jurisdiction in the first instance is ousted. Reference was made to the case of Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20 as having clarified this position in the face of conflicting High Court decisions.

The effect of this decision was said to be the qualification of the inherent jurisdiction of the High Court granted by section 171 of the Constitution of Zimbabwe, 2013.

It was argued that precedence is to be given to the specialized courts whose jurisdiction for the Labour Court is circumscribed in section 172 of the Constitution as read with section 89(6) of the Labour Act.

In support of resolving the question of the applicability of section 89(6) of the Labour Act when one seeks vindicatory relief, the Court was referred to the case of DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) wherein it was held that the clear intention of the Legislature should be upheld and that the jurisdiction of a special court should not be ousted by the mere framing of disputes into common law causes of action where the Act has made specific provisions for the same.

It was pointed out, that, the court observed the existence of concurrent jurisdiction and leaned in favour of the statutory provision.

Further reference was made to the case of Lazarus Muchenje v Susan Mutangadura & ORS HH21-21, to argue that the court should look beyond the relief sought and go into the substance of the application in order to decide whether the dispute is one falling under common law or otherwise.

Paragraph 8 of the founding affidavit was alleged to make it clear that possession of the motor vehicle was consequent to the employment relationship and that in paragraphs 9 and 10 the basis for requesting the vehicle is termination of the employment relationship.

Counsel for the respondent argued that the real cause of action is the termination of employment; therefore, the Labour Court should be the one holding jurisdiction in deference to Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20.

Counsel for the applicant submitted, that, the respondent is selectively reading Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20 as it is distinguishable from the facts in casu as Stanley Nhari approached the Court for an order to be paid terminal benefits after termination of his contract and the court was correct to decline jurisdiction of the High Court as the cause of action fell within the purview of the Labour Court's jurisdiction.

Lazarus Muchenje v Susan Mutangadura & ORS HH21-21 was also distinguished as one where the applicant wanted an interdict but the court found that the real cause of action was a challenge to his dismissal.

It was argued that the court correctly found it had no jurisdiction but the Labour Court had, as the cause of action was not based on common law principles as herein.

Counsel for the applicant referred to the case of Nyahora v CFI (Pvt) Ltd SC81-14, which, it was contended, falls on all fours with this case and settled all the conflicting High Court cases.

In that case, the Supreme Court is said to have distinguished the applicability of the line of cases like Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20 by finding that the Labour Court is a creature of statute and its jurisdiction is set out in section 89 of the Labour Act. The exclusive jurisdiction set out in section 89(6) of the Labour Act is said to be applicable only to matters covered in the Labour Act which is said not to cover the common law principle of rei vindicatio.

It was further argued that the right of an individual to approach the High Court seeking relief other than relief specifically set out in section 89(1) of the Labour Act has not been abrogated.

Furthermore, counsel for the applicant observed that the applicant's counsel had not distinguished the case of Nyahora v CFI (Pvt) Ltd SC81-14 and that the Supreme Court, in the case of Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20, in its wisdom, had also not ventured into dealing with Nyahora v CFI (Pvt) Ltd SC81-14.

The only logical conclusion, it was argued, is that Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20 did not depart from Nyahora v CFI (Pvt) Ltd SC81-14, and, that, in the former case, the Supreme Court simply sought to protect the High Court from general labour matters being brought to this forum on account of inherent jurisdiction.

What is evident from case law is, that, before the Supreme Court case of Nyahora v CFI (Pvt) Ltd SC81-14, one could be forgiven if they followed the DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) line of cases where an employer sought to recover its property from an employee upon termination of the contract of employment and declined jurisdiction and referred such a dispute to the Labour Court.

The justification was that it would be a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of the court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The Supreme Court, in Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20, considered the case of Stanley Machote v Zimbabwe Manpower Development Fund 2016 (1) ZLR 195 (H) whose subject was the registration of an arbitral award.

Also considered was the case of Nyanzara v Mbada Diamonds (Pvt) Ltd 2016 (1) ZLR 195 (H) in which the issue was outstanding allowances.

In Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 the subject was a collective job action.

In Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20, the Supreme Court observed that the claim was for outstanding pay though it had been called damages.

The court did not expressly deal with rei vindicatio claims nor distinguish its earlier decision in Nyahora v CFI (Pvt) Ltd SC81-14. The only mention of the cases of DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) and Zimtrade v Makaya 2005 (1) ZLR 427 (H) 429, which cases dealt with rei vindicatio claims, was to show, that, before the current Constitution, the position was settled that the High Court had no jurisdiction in labour and employment matters as shown in those cases.

The Supreme Court did not go further to consider the implications of Nyahora v CFI (Pvt) Ltd SC81-14 in as far as it dealt with a rei vindicatio claim.

It is my finding, therefore, that, there has been no departure from Nyahora v CFI (Pvt) Ltd SC81-14 in which the position of the law was clearly set out as shown hereunder;

“The Labour Court is a creature of statute. Its jurisdiction is set out in section 89 of the Act. Sections 89(1) and (6) are set out hereunder:

'89 Functions, powers and jurisdiction of the Labour Court

(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 exclusive jurisdiction conferred by section 89(6) relates only to the hearing and determination, in the first instance, of any application, appeal, or matter referred to in subsection (1).

Subsection 1(a), in turn, clearly limits that jurisdiction to applications and appeals in terms of this Act or any other enactment.

Instances in which applications and appeals may be made in terms of the Act are clearly set out in the Act and need no further elaboration.

Reference was made, among others, to the applications referred to in sections 92C and 93(7) of the Act. These are applications in terms of the Act and no other court has jurisdiction to hear or determine such applications at first instance….,.

As submitted on behalf of the respondent, the right of an individual to approach the High Court seeking relief other than that specifically set out in section 89(1)(a) of the Act, has not been abrogated.

Nothing in section 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of civil law, except in respect of those applications and appeals that are specifically provided for in the Labour Act.

Nor is there contained in section 89 any provision expressly authorizing the Labour Court to deal with an application, such as in the instant case, for the common law remedy of rei vindicatio. Such applications fall squarely within the jurisdiction of the High Court.”

It is therefore my finding that the High Court has jurisdiction to deal with this matter as the common law remedy of rei vindicatio is not covered under the Labour Act.

I therefore dismiss the point in limine....,.

The respondent based his defence on the case of Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20 which was decided in 2020 and in which the Supreme Court broadly stated the issue for determination as “whether the High Court has jurisdiction to deal with matters of labour and employment.”

The court reached the conclusion that the High Court does not enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe and that its original jurisdiction had been fettered and truncated by the Constitution in making provision for the creation of specialized courts whose jurisdiction may oust that of the High Court in specific areas.

The question of whether the Stanley Nhari v Robert Gabriel Mugabe & 2 ORS SC161-20 decision had specifically replaced Nyahora v CFI (Pvt) Ltd SC81-14 remained unchartered.

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

The High Court will refrain from exercising its inherent jurisdiction only where its jurisdiction is specifically excluded or ousted by a statute or other law.Because the High Court has inherent jurisdiction, its jurisdiction cannot be excluded by implication.An example of express exclusion of the jurisdiction of the High Court is ...

Appealed
SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

INTRODUCTIONThis is an appeal against the whole judgment of the Electoral Court sitting in Bulawayo dated 29 August 2019. The court granted a declaratory order sought by the first and second respondents ('the respondents) that the appellant's election was in contravention of the Electoral Act [Chapter 2:13], and, as a ...

INTRODUCTION

This is an appeal against the whole judgment of the Electoral Court sitting in Bulawayo dated 29 August 2019. The court granted a declaratory order sought by the first and second respondents ('the respondents) that the appellant's election was in contravention of the Electoral Act [Chapter 2:13], and, as a result, set aside the appellant's election as councilor for Ward 3 in Bulawayo.

BACKGROUND FACTS

The background to the matter may be summarized as follows:

The appellant was elected councilor for Ward 3 Bulawayo. The first respondent is a Trust, established in terms of the law in Zimbabwe. Its objectives are to promote economic and sound development in Matabeleland and Midlands. The second respondent is a registered voter in Ward 3 Bulawayo. The third respondent is a local authority operating in terms of the Urban Councils Act [Chapter 29:15]. The fourth respondent is an independent commission established in terms of section 238 of the Constitution of Zimbabwe. The fifth respondent is an alliance of political parties.

On 14 June 2018, following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution as read with section 38(1)(c)of the Electoral Act [Chapter 2:13] (the Act), the Nomination Court sat and accepted the appellant's nomination papers. This resulted in the appellant being registered as a candidate to contest as a councilor for Ward 3 in Bulawayo under the banner of the fifth respondent.

On 27 June 2018, two weeks after the appellant's nomination, he was arraigned before the Bulawayo Magistrates Court. He was charged with the crime of theft as provided for in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant pleaded guilty to the offence and was fined US$80, or, in default of payment, eighteen (18) days imprisonment.

On 30 July 2018, the elections were held, and, on 2 August 2018, the appellant was declared the duly elected councillor for Ward 3 Bulawayo. Following the election, the first and second respondents made an application before the Electoral Court seeking a declaratur to set aside the election of the appellant on the ground that he was disqualified from holding office following his conviction.

PROCEEDINGS A QUO

The application was opposed by the appellant who argued that the first and second respondents did not have locus standi to bring the application before the court and that the first and second respondents had filed a disguised election petition in the name of an application.

The appellant also argued that the court did not have jurisdiction to entertain the application as he could only be removed from office in accordance with section 278 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').

In granting the application, the court found that the Electoral Court had the power to grant an application for a declaratur as long as the application related to the electoral process.

On the argument that the court did not have jurisdiction to set aside the nomination since the respondents had not filed an election petition, the court found that it had the requisite jurisdiction since it was not being called upon to remove the appellant from office, but to declare him as a disqualified person to hold office by virtue of his conviction.

The court also found that the first and second respondents were interested parties and hence were qualified to bring the application.

In the result, the court made the following order:

“1. It be and is hereby declared that the election of first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of the offence of theft at the Bulawayo Magistrates Court under Criminal Record Book (CRB) number 1981/18 on 27 June 2018, and it is therefore set aside on account of it being null and void and his unsuitability to hold public office.

2. That first respondent pays costs of suit on the ordinary scale.”

Dissatisfied by the decision of the court a quo, the appellant noted this present appeal under the following grounds:

“1. The court a quo erred to hear and determine this matter on the basis that the same was not an election petition filed under section 168 of the Electoral Act [Chapter 2:13] nor was it at law an appeal application or petition in terms of the same Act.

2. The court a quo erred, as a question of law, in failing to hold, that, the first respondent, a Trust, had no legal capacity of suing and being sued and more importantly in failing to hold that the same had no locus standi or legal basis of bringing the application.

3. The court a quo erred to hold that the second respondent, Nomalanga Dabengwa, did not have locus standi to approach the court and could only have done so through an election petition in terms of section 168 of the Electoral Act of which the application in the court a quo was not won (sic).

4. The court a quo erred in its interpretation of section 119(2) of the Electoral Act.

5. More importantly, the court a quo failed in not holding that once a person had been lawfully nominated, such as the appellant, he could only be removed from the office in terms of section 278 of the Constitution of Zimbabwe.”

Although five grounds were raised, the appellant argued the appeal on only one ground which he submitted would resolve the dispute between the parties.

The issue was whether or not the Electoral Court had the jurisdiction to grant the declaratory order sought by the first and second respondents.

SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, the appellant placed before the Court a copy of a judgment handed down on 18 June 2020 by MAKONESE J and MABHIKWA J under case number HCA05/19 and judgment number HB119-20 being an appeal made by the appellant against both his conviction and sentence.

The judgment was to the effect that the appeal had been allowed. This resulted in the setting aside of the appellant's conviction and sentence.

I hasten to state, that, the judgment of the acquittal of the appellant was made part of the record by consent of the parties. However, in my view, the judgment setting aside the appellants conviction, does not take the appellants case any further as this was only granted after he had been elected into office.

Counsel for the appellant submitted, in the main, that, the court a quo erred in granting the declaratory order sought by the first and second respondents as it had no power to issue such an order.

It was counsel's argument that section 161 of the Electoral Act sets out the powers that the court can exercise. The Electoral Act does not grant the court the power to issue a declaratur.

It was also his submission that the court erred in resorting to section 14 of the High Court Act [Chapter 7:06] ('the High Court Act') in granting the declaratur when the application had been made in terms of the Electoral Act.

On the other hand, counsel for the respondents argued, that, the court a quo did not misdirect itself when it granted the declaratory order sought by the respondents. It was counsel's argument that section 161 of the Electoral Act gave the court exclusive jurisdiction over all electoral matters. It was also argued, that, the Electoral Court, in carrying out its functions, could exercise the same powers as the High Court. Thus, it had the power to grant the declaratur sought by the respondents.

On this basis, the respondents submitted that the appeal must be dismissed with costs.

APPLICATION OF THE LAW TO THE FACTS

In finding that it had jurisdiction to deal with the application for a declaratur, the court a quo relied on section 161(2) of the Electoral Act. The court made the following remarks:

“The Electoral Court now has powers similar to those exercised by the High Court, and, that this Court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.”

The Electoral Act was promulgated on 1 February 2005 as Act 25/2004. Section 161 of that Electoral Act gave the court its jurisdictional powers and provided 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.

(8) The Electoral Court shall have no jurisdiction to try any criminal case.

(9) The Electoral Court shall be a court of record.”

In 2012, the Electoral Act was amended by Act 3 of 2012. Under the amendment, the jurisdictional powers of the court were broadened under section 161. Section 161 of the Electoral Act now reads as follows:

“161 Establishment and jurisdiction of Electoral Court

(1) There is hereby established a division of the High Court, to be known as the Electoral Court, which shall be a court of record.

(2) The Electoral Court shall have exclusive jurisdiction —

(a) To hear appeals, applications, and petitions in terms of this Act; and

(b) To review any decision of the Commission or any other person made or purporting to have been made under this Act; and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court:
Provided that the Electoral Court shall have no jurisdiction to try any criminal case.

(3) Judgments, orders, and directions of the Electoral Court shall be enforceable in the same way as judgments, orders, and directions of the High Court.”

Section 161 of the Electoral Act gives the court exclusive power to deal with all issues pertaining to election processes. The court can hear appeals, applications, and petitions within the confines of the Electoral Act. It can also review decisions of the Commission and shall grant such orders, judgments, and directions as may be granted by the High Court in such matters.

It is a creature of statute and its powers are confined to the four corners of the Electoral Act.

In discussing the jurisdiction of the Electoral Court, UCHENA J…, in Mliswa v The Chairperson Zimbabwe Electoral Commission HH586-15 stated the following:

“The Electoral Court now has exclusive jurisdiction, which it did not have in 2008. The word 'exclusive' means this court now has a domain over which it does not share its jurisdiction with any other court. That domain is marked by section 161(2)(a) and (b) which caps it all by adding that this court now has powers similar to those exercised by the High Court when it determines electoral issues.

The combination of exclusive jurisdiction and the addition of powers similar to those exercised by the High Court means this court now enjoys unlimited jurisdiction over all electoral cases, except criminal cases and cases which have been specifically allocated to other courts.

Applications are now specifically mentioned as falling within the Electoral Court's jurisdiction. In 2008, they fell under 'other matters'.

The Electoral Court now has 'power to give such judgments, orders, and directions in those matters as might be given by the High Court'.

The granting to the Electoral Court of exclusive jurisdiction, and power to give such judgments, orders, and directions in those matters as might be given by the High Court, is a clear enhancement of the Electoral Court's jurisdiction after the Makone case (supra).”

There can be no doubt that the amendment to section 161 of the Electoral Act, by Act 3 of 2012, widened the powers of the court.

The court is no longer limited to hearing petitions only but can deal with appeals and applications in similar ways as they are dealt with by the High Court. The Electoral Act provides that the court can give judgments, orders, and directions as may be given by the High Court.

The Electoral Act, however, does not specifically state whether or not the court has the power to grant declaratory orders.

Both the Labour Court and Electoral Court share the characteristic of being specialized courts which exercise jurisdiction within the confines of enabling Acts of Parliament.

This Court, faced with a similar question of whether or not the Labour Court has jurisdiction to grant a declaratory order, in Stylianou and Others v Mubita and Others SC07-17…, reasoned as follows:

“Section 89 of the Labour Act determines the functions, powers, and jurisdiction of the Labour Court. The relevant section is section 89(1)(a) which reads as follows:

'89 Functions, powers and jurisdiction of Labour Court

(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)…,.

Turning to the declaratory order granted by the court a quo, the same question arises as to whether or not the Labour Court has the jurisdiction to make such orders.

Paragraph 4 of the provisional order attached to the urgent chamber application a quo read as follows:

'4. The agreement signed by the works council will be and is hereby declared null and void.'…,.

The same question was deliberated upon by ZIYAMBI JA in UZ-UCSF Collaborative Research Programme in Women's Health v David Shamuyarira SC10-10 where she held as follows:

'…, nowhere in the Act is the power granted to the Labour Court to grant an order of the nature (declaratory order) sought by the respondents in the court a quo; nor have I been referred to any enactment.

So, too, in this case, there is no provision in the Act (nor have I been referred to any provision in any other enactment) authorizing the Labour Court to issue the declaratory order sought by the respondent.

It is therefore my view, that, the Labour Court ought to have dismissed the application for want of jurisdiction authorizing the Labour Court to grant such an order.

It is therefore evident, that, the court a quo acted outside its jurisdiction. Consequently, the declaratory order, like the interdict it granted, was null and void.'”

A reading of section 161 of the Electoral Act has similar wording as found in section 89(1)(a) of the Labour Act [Chapter 28:01].

Section 161 of the Electoral Act clearly states that the court has jurisdiction to hear appeals, applications, and petitions in terms of the Act. All matters brought before the court must be over election processes or any matter relating to elections. Likewise, all issues brought before the Labour Court must pertain to labour matters only.

The only difference between the two provisions which are strikingly similar is on section 161(b) of the Electoral Act.

Section 161(b) of the Electoral Act gives the Electoral Court extra power to grant judgments, orders, and directions as may be granted by the High Court.

A cursory examination of the provision suggests that it is an open-ended provision which suggests that the Electoral Court is at par with the High Court as both courts can grant similar judgments, orders, and directions.

In discussing the principle to be applied by a court in interpreting statutes, MALABA CJ, in Zambezi Gas (Pvt) Limited v NR Barber (Pvt) Ltd and Another SC03-20, stated the following:

“It is the duty of a court to interpret statutes. Where the language used in a statute is clear and unambiguous, the words ought to be given the ordinary grammatical meaning. However, where the language used is ambiguous and lacks clarity, the court will need to interpret it and give it meaning. There is enough authority for this rule of interpretation.

In Endeavour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) at p356F-G the Supreme Court stated:

'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.'”…,.

In Chihava and Others v The Provincial Magistrate Francis Mapfumo N.O. and Another 2015 (2) ZLR 31 (CC)…, the Constitutional Court said:

“The starting point in relation to the interpretation of statutes, generally, would be what is termed 'the golden rule' of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A) at 767:

'According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument.'”…,.

Applying the above principles, it seems to me that an interpretation of section 161(2)(b) of the Electoral Act requires that I apply the golden rule.

As a starting point, an examination of the meaning of “applications” envisaged under section 161(2)(a) of the Electoral Act is imperative.

Examples of applications envisaged in the Electoral Act are set out in Part XIII of the Electoral Act. The main one is an electoral petition. There is also provision for an application made in terms of section 67A of the Act for the extension of the period for counting votes; an application made in terms of section 70(4) where the court may grant leave to any person to open any packet or box containing electoral residue; and, lastly, an application made in terms of section 129(1) of the Act wherein the court can order a run-off of elections to be done on the same day.

The case in issue was clearly not an electoral petition nor did it fall under any of the above-cited examples.

The examples cited above, which are aptly captured in the appellant's heads of argument, serve to show that applications which may be entertained by the Electoral Court have a marked difference from those that may be heard by the High Court.

This is where, in my view, the court a quo fell into error.

The High Court is a court with inherent jurisdiction. It has the power to hear all types of applications brought to it in terms of Order 32 of the High Court Rules, 1971. The types of applications that the High Court can hear are not stipulated in the High Court Act as is the position in the Electoral Act.

That the High Court has inherent jurisdiction is a common law principle which has been specifically codified by section 176 of the Constitution. The Electoral Act does not have such a provision. Thus, the High Court can grant any order as it may deem fit. This is in complete variance with the applications envisaged under the Electoral Act where there is a set remedy which the court must apply for every application before it.

For example, under section 67A of the Electoral Act, in an application for the extension of the period for counting votes, the court's remedy is that it may, for good cause shown, extend the period for counting of the votes. Also, in an application made in terms of section 70(4) of the Electoral Act, the court, on application, can order that a ballot packet be reopened.

It is clear that the Electoral Act provides for situations where the court can exercise its jurisdiction and further provides for the remedies which the court can grant.

The net effect is that the nature of the jurisdiction which is granted in the Electoral Act is that the court cannot stray from the provisions of the Act. It is bound to follow the powers set out in the Electoral Act. Therefore, a proper interpretation of the provision that the Electoral Court can exercise the same powers as the High Court in making judgments, orders, and directions in appeals, applications, and petitions, can only be that such power is limited to the confines of the Electoral Act.

The Electoral Act does not provide nor purport to give the court the jurisdiction to grant declaratory orders.

A declaratur, by nature, is a special remedy open to any individual who has an interest in any matter who seeks a declaration on existing or future rights.

The power of the High Court to grant declaratory orders is entrenched in section 14 of the High Court Act. Section 14 of the High Court Act provides as follows:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

It seems to me that section 14 of the High Court Act is a special provision which flows from the fact that the High Court has inherent jurisdiction which the Electoral Court does not have.

The remedy of a declaration of rights is a remedy which the High Court grants within its discretion. That is not a remedy which may be shared by a court which has limited jurisdiction.

It could not have been the intention of the legislature to give the Electoral Court the power to grant declaratory orders through the amendment of section 161 of the Electoral Act.

In my view, section 161 of the Electoral Act was amended so as to provide the Electoral Court with wider powers so that it is not restricted to dealing only with election petitions as was the position prior to 2012.

For the application for a declaratory order made a quo by the first and second respondents to have been properly before the court, it must have been provided for in the Electoral Act as can be drawn from the remarks by ZIYAMBI JA in National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and Others 2005 (1) ZLR 341 (S) wherein the court noted the following…,:

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

Before the court a quo could entertain the application before it, it ought to have been satisfied that the application fell within the confines of the Electoral Act.

It should also be observed that the court a quo, in invoking section 14 of the High Court Act, applied principles which were not argued before it by the parties. It thus again fell into error by determining a matter based on an issue which had not been placed before it.

Clearly, by acting in this manner, the court went on a frolic of its own.

DISPOSITION

The Electoral Court, like the Labour Court, does not have jurisdiction to grant declaratory orders. The Electoral Court, being a creature of statute, can only deal with issues which are set out in its enabling Act.

The court a quo thus erred in finding that it had jurisdiction to deal with the application for a declaratory order.

The appeal must thus succeed on this basis.

In respect to costs, the appellant has been successful and I find no reason why costs should not follow the cause.

In the result, it is accordingly ordered as follows:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The application is dismissed with costs.”

View Appeal
HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: MABHIKWA J

The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

The Law

Order 32 Rule 226(1) of the High Court Rules 1971, states as follows as regards court applications;

“1. Subject to this rule, all applications made for whatever purpose in terms of these rules, or any other law, other than applications made orally during the course of a hearing, shall be made –

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.”…,.

Section 161(2) of the Electoral Act [Chapter 2:13] reads as follows:

“(2) The Electoral Court shall have exclusive jurisdiction –

(a) To hear appeals, applications, and petitions in terms of this Act…, and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

It appears to me, therefore, from the above, that a court application may be made either in terms of section 161(2) of the Electoral Act or Order 32 Rule 226 of the High Court Rules with equal legal force, save to say that the Electoral Court Division of the High Court will not entertain or hear criminal cases or any other matters completely unrelated to electoral processes.

There is no rule shown to me, both in the High Court Rules or Electoral Act, that all matters relating to elections should be filed as “Election Petitions” with the Electoral Court only, as the first respondent appears to argue.

In Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H), the applicant was a Zimbabwean citizen permanently resident in Botswana. He would regularly drive into Zimbabwe to visit his family. Upon entry into Zimbabwe, he would obtain a temporary import permit for his foreign registered vehicle and other costs. He made an application for a declaratory order for, inter alia, re-imbursement of the expenses which he incurs when he travels. His company in Botswana refused to refund him on the grounds that his purported entries into Zimbabwe were not insured by “a registered and licenced” insurer.

The court held, that, the condition precedent to the grant of a declaratory order is that –

(a) The applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The court must relate to an existing, future, and contingent right as the court will not decide on abstract, academic, or hypothetical questions as was the situation in that case.

(b) At the second stage, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under section 14 of the High Court Act [Chapter 7:06].

The said section 14 of the High Court Act states as follows as regard the determination of future or contingent rights:

“14. The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I agree also with counsel for the applicants, that, the current Electoral Act [Chapter 2:13] as read with such cases as Makoni & Anor v Chairperson of ZEC & Anor (1) ZLR…, and Themba Mliswa v ZEC Chairperson reveals that an application is not a petition.

The Electoral Court now has powers similar to those exercised by the High Court and that this court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.

I am satisfied, therefore, from the above legal position, both statutory and from precedents, that, the applicants are in the category of interested persons qualified to make such an application.

Having said that, it follows, therefore, that it is an erroneous reasoning to hold that only those who “participated” in the 30 July 2018 election “would qualify to approach this court, and only by way of “an election petition.”

I dismiss also the contention that the matter is an election petition disguised as an application.

In any event, and in my view, this is an argument that the first respondent deliberately, but vigorously, advanced to the court in order to push the applicants into the category of persons that he hoped the court would probably declare unqualified to petition it.

In effect, the first respondent seems to argue that “participants” for purposes of an election petition would mean those affected, especially losing candidates in the same election that he won....,.

This court will not waste time on the argument that it has no jurisdiction to determine the matter because in Circular Notice No.390 of 2018 the High Court judges listed therein had been appointed to be judges of the Electoral Court Division of the High Court for the period 5 June 2018 to 31 December 2018.

This application was filed on 23 November 2018 and it is clearly not the only pending matter in the Electoral Court.

It was obviously not the intention of the legislature that all pending electoral matters, as at 31 December 2018, be abandoned on that date.

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

The applicant is an independent candidate for the Hurungwe West By-Election scheduled for 10 June 2015. He, by ordinary application, applied for an order suspending the holding of elections in Hurungwe West on 10 June 2015 due to alleged violence and intimidation.

In the alternative, he seeks orders compelling the first (Chairperson, Zimbabwe Electoral Commission), second (Zimbabwe Electoral Commission), fourth (Ignatious Chombo), and sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) to make statements through fliers and radio correcting the impression created by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) about how voters in the constituency shall go to the polls and vote on 10 June 2015.

The first respondent is the Chairperson of the Zimbabwe Electoral Commission to whom the applicant complained, by letters dated 12 and 14 May 2015, about the violence and intimidation which was being unleashed in Hurungwe West by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau).

The second respondent is the Zimbabwe Electoral Commission.

The third respondent is Zimbabwe African National Union (Patriotic Front) ZANU-PF, a political party which fielded the fifth respondent (Keith Guzha) for the Hurungwe West by-election.

The fourth respondent (Ignatious Chombo) is the Secretary for Administration for the third respondent who is being sued in his personal capacity for inciting violence and intimidation in Hurungwe West Constituency.

The fifth respondent (Keith Guzha) is a contestant fielded by the third respondent for election as a Member of Parliament for Hurungwe West in the 10 June by-elections.

The sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) are traditional leaders who the applicant alleges have been tasked with the role of systematically heading their subjects to polling stations and monitoring how they will vote to identify those who will vote for the applicant.

The eleventh respondent is the President of Zimbabwe, cited in his official capacity as the official responsible for proclaiming dates for elections.

As already said, the applicant applied, by ordinary application, for the above mentioned orders.

He, in that application, sought to have the application set down for the fifth of June 2015 even though he only served the application on the sixth to tenth respondents on 6 June 2015. It was served on the first, second, third, and fourth respondents on 2 June 2015. The Registrar set it down for 8 June 2015. Most of the respondents were served with notices of set down on 8 June 2015.

On 8 June, the respondents counsel raised three preliminary issues:

Counsel for the third and fifth respondents raised a preliminary issue on his clients being entitled to the dies induciae permitted in terms of the Rule the applicant used to file his application.

Counsel for the first and second respondents raised a preliminary issue on whether or not this court has jurisdiction to hear the applicant's application.

Counsel for the fourth and sixth to eleventh respondents raised a preliminary issue alleging that the fourth respondent had been incorrectly cited in his personal capacity.

I, after hearing submissions from the parties, postponed the case to 9 June 2015, when I ruled in favour of the third and fifth respondents preliminary issue and dismissed the first, second and fourth respondents preliminary issues.

I indicated that my reasons for judgment would follow, these are they....,.

Jurisdiction

Counsel for the first and second respondents raised a preliminary issue on whether or not this court has jurisdiction to hear an application for which the Electoral Act does not specifically confer jurisdiction on it.

He, relying on the case of Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H), submitted, that, this court can only exercise jurisdiction over cases where the Legislature specifically conferred jurisdiction on it.

Counsel for the applicant, in response, submitted, that, section 161(2) of the Electoral Act, as currently worded, confers jurisdiction on the Electoral Court in respect of all applications arising from the Electoral Act. He submitted that section 161 must be read as a whole to get its full meaning.

I agree, that, provisions of a statute must be construed within the context in which they are found.

The Electoral Act has been extensively amended since my decision in Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H).

The wording of the current section 161 of the Electoral Act is totally different from the earlier version. In the 2004 version, which applied in 2008, section 161(1) of the Electoral Act provided as follows:

“161(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.

(2) The Electoral Court shall have no jurisdiction to try any criminal case.

(3) The Electoral Court shall be a court of record.”

Section 161 of the Electoral Act, as amended by Act 3 of 2012, reads as follows:

“161(1) There is hereby established a court, to be known as the Electoral Court, which shall be a court of record.

(2) The Electoral Court shall have exclusive jurisdiction —

(a) To hear appeals, applications, and petitions in terms of this Act; and

(b) To review any decision of the Commission or any other person made or purporting to have been made under this Act; and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court:
Provided that the Electoral Court shall have no jurisdiction to try any criminal case.

(3) Judgments, orders, and directions of the Electoral Court shall be enforceable in the same way as judgments, orders, and directions of the High Court.”

Subsection (2) brought in changes which makes the decision, in Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H) inapplicable.

The Electoral Court now has exclusive jurisdiction - which it did not have in 2008.

The word “exclusive” means this court now has a domain over which it does not share its jurisdiction with any other court. That domain is marked by section 161(2)(a) and (b) of the Electoral Act, which caps it all by adding, that, this court now has powers similar to those exercised by the High Court when it determines electoral issues.

The combination of exclusive jurisdiction, and the addition of powers similar to those exercised by the High Court, means, this court now enjoys unlimited jurisdiction over all electoral cases, except criminal cases, and cases which have been specifically allocated to other courts.

Applications are now specifically mentioned as falling within the Electoral Court's jurisdiction.

In 2008, they fell under “other matters.”

The Electoral Court now has “power to give such judgments, orders, and directions in those matters as might be given by the High Court.”

The granting to the Electoral Court of exclusive jurisdiction, and power to give such judgments, orders, and directions in those matters as might be given by the High Court, is a clear enhancement of the Electoral Court's jurisdiction after Makone & Another v Chairperson (ZEC) & Anor 2008 (1) ZLR 230 (H).

The fact that the Legislature, which is deemed to know the law, made these deliberate changes, means it intended to alter case law by giving this court jurisdiction the Makone case said it did not have.

Exclusive jurisdiction means this court does not share concurrent jurisdiction with any other court on matters it has jurisdiction on.

The granting of power to give judgments and orders the High Court might give enables this court to exercise jurisdiction over cases in which it used to decline jurisdiction and such cases would be heard by the High Court. It has simply been given exclusive jurisdiction, with unlimited power to hear and determine cases under the Electoral Act just as the High Court had jurisdiction to hear such cases during the era when the Electoral Court did not have exclusive jurisdiction.

I therefore find, that, this court has jurisdiction to hear and determine the applicant's application.

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

The Labour Court is a specialised court in labour matters.

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

I have again been guided by the remarks by the Chief Justice in Lyttton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another CC11-18 where he had this to say about the Constitutional Court:“The court is a specialised institution, specifically constituted as a Constitutional Court with the narrow ...

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

It is settled law, that, the jurisdiction of the Constitutional Court is triggered only where a constitutional issue arises or where an issue connected with a decision on a constitutional matter arises.Section 332 of the Constitution defines a constitutional matter as a matter in which there is an issue involving ...

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

The Constitutional Court is a specialised court, and, in terms of section 167(1)(b) of the Constitution, decides only constitutional matters and issues connected with decisions on constitutional matters.It thus exercises jurisdiction as a court of first instance and an appeal court.

CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

Section 167(1) of the Constitution states the following:“167 Jurisdiction of Constitutional Court(1) The Constitutional Court —(a) Is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular references and ...

Section 167(1) of the Constitution states the following:

“167 Jurisdiction of Constitutional Court

(1) The Constitutional Court —

(a) Is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular references and applications under section 131(8)(b) and para 9(2) of the Fifth Schedule.” …,.

In the same respect, the Constitutional Court, in Sadziwani v Natpak (Pvt) Ltd & Ors CC15-19, emphasized its special jurisdiction in the following terms…,:

“The Constitutional Court is a specialised court endowed with the purposefully narrow jurisdiction to determine constitutional matters only. The language of section 167(1)(b) of the Constitution is clear enough in this respect. The Court is established in terms of section 166 of the Constitution and section 167 provides for the jurisdiction of the Court.

In the Lytton Investments case supra, at p9 of the cyclostyled judgment, the Court emphasised the special jurisdiction of the Court in the following terms:

'The Court is a specialised institution, specifically constituted as a Constitutional Court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.'

Where no constitutional issues are pertinent, the jurisdiction of the Court, under section 167 of the Constitution, is not triggered.

In Brink v Kitshoff NO 1996 (4) SA 197 (CC), the South African Constitutional Court had the following to say…,:

'[28] The jurisdiction of this Court is limited to the interpretation, protection, and enforcement of the provisions of the Constitution (in terms of section 98(2) of the Constitution) and any other matter over which it is expressly given jurisdiction. Neither the question of when an estate becomes entitled to the proceeds of a life insurance policy, in terms of section 44, nor the question of when a concursus creditorum will be initiated, are constitutional questions. This Court accordingly does not have jurisdiction over such matters.'

The Court is a specialist court and not a court of general jurisdiction.

The principle of constitutional supremacy ensures, that, the jurisdiction of the Court, as defined in section 167 of the Constitution, is narrowly defined and given constitutional protection. In addition, the very definition of a constitutional matter itself, in terms of section 332 of the Constitution, presupposes, that, not every matter is a constitutional matter. If the resolution of a matter does not require the protection, interpretation or enforcement of the Constitution, it is not a constitutional matter and the Court cannot assume jurisdiction over it.”

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

The Constitutional Court is a specialized court with limited jurisdiction. It only determines constitutional matters.

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Constitutional Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters.The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regard to ...

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

The jurisdiction of this Court is provided for in section 167(1) of the Constitution as follows:“(1) The Constitutional Court –(a) Is the highest court in all constitutional matters, and its decision on those matters bind all other courts;(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, ...

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

The LawIn a long line of cases from this jurisdiction and elsewhere, the admonition is repeatedly sounded and explained, that superior courts should be very slow in interfering with the unterminated proceedings of lower courts.The exception is made for cases where there is a gross irregularity or a wrong decision ...

The Law

In a long line of cases from this jurisdiction and elsewhere, the admonition is repeatedly sounded and explained, that superior courts should be very slow in interfering with the unterminated proceedings of lower courts.

The exception is made for cases where there is a gross irregularity or a wrong decision by the lower court that will seriously prejudice the rights of a litigant or accused person and which irregularity or wrong decision cannot be corrected by any other means: see Attorney-General v Makamba 2005 (2) ZLR 54 (S); Rasher v Minister of Justice 1930 TPD 810; Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357; Walhaus v Additional Magistrate, Johanesburg & Anor 1959 (3) SA 113 (A); Masedza & Others v Magistrate, Rusape and Others 1998 (1) ZLR 36 (H); Mantzaris v University of Durban-Westville & Others (2000) 10 BLLR 1203 LC; Rose v S HH71-02; Mutumwa and Anor v S HH104-08; Chikusvu v Magistrate Mahwe HH100-15; Chawira and Others v Minister, Justice, Legal and Parliamentary Affairs and Ors CC03-17 and Shava v Magomere HB100-17.

The above admonition is sounded to a superior court that has inherent or legislatively-conferred review powers over the proceedings or decisions of the lower court.

It is meant to guide the approach to be taken by such a court.

This is so because the power to interfere with the unterminated proceedings of a lower court either permanently, or as affording interlocutory relief, is nothing but an exercise of review jurisdiction by the superior court over the proceedings or decisions of the lower court.

The authorities clearly establish the position at law, that, proceedings in a lower court or its decision are only interfered with if there is a gross irregularity in the proceedings or the interlocutory decision is clearly wrong.

Both instances, respectively, encompass the common law review grounds of gross irregularity in the proceedings and/or gross unreasonableness in the decision.

By established practice of the courts, it is thus accepted, that, the existence of these two grounds of review may, in appropriate circumstances, justify a superior court of competent jurisdiction interfering with the ongoing proceedings of a lower court.

This Court decides only constitutional matters and issues connected with decisions on constitutional matters. It is not a court of inherent jurisdiction and thus lacks inherent review powers over lower courts.

The Court, however, has legislatively-conferred review powers. These are set out in section 19 of the Constitutional Court Act [Chapter 7.22].

Whilst fairly wide, the review powers of this Court are, correspondingly and in conformity with the Constitution, limited in scope to constitutional matters only.

Section 19 of the Constitutional Court Act thus provides:

“19 Review Powers

(1) Subject to this section, the court and every Judge shall have, in constitutional matters, the power to review the proceedings and decisions of the Supreme Court, the High Court, and all other subordinate courts, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subs (1) may be exercised whenever it comes to the notice of the court or a Judge that an irregularity has occurred in any proceedings or in the making of any decision, notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the court or a Judge, and provision may be made in rules of court, and a Judge may give directions, specifying that any class of review or any particular review shall be instituted before, or shall be referred or remitted to the Supreme Court, the High Court or the Labour Court, as the case may be, for determination.”…,.

If it is accepted, which it must, that, this Court lacks inherent jurisdiction to review the proceedings and decisions of lower courts in non-constitutional matters, it stands to reason, that, this Court must be dead slow in interfering with the unterminated proceedings of any lower court and proceed only after it is satisfied that there is a constitutional matter arising in the matter.

Put differently, the review jurisdiction of this Court is only triggered and engaged after this Court has satisfied itself that the matter involved is a constitutional matter.

I venture to suggest, that, where the matter is intended to be brought before this Court, as a court of first instance, as in casu, this Court must only proceed to interfere with the unterminated proceedings of a lower court where it intends, in the interests of justice, to grant direct access in the matter and determine the matter itself.

Put differently, this Court must only interfere with un-terminated proceedings in the lower courts where it has jurisdiction in the matter.

If it were to proceed in any other manner, this Court would run the risk of rushing in and interfering with unterminated proceedings in a lower court, that, on final analysis, turn out to have been on a non-constitutional matter.

In such an instance, the interference by this Court would lack legitimacy as having been made in breach of the Constitution that confines the jurisdiction of this Court only to constitutional matters and decisions in issues involving a constitutional matter.

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.The applicant craves ...

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.

The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.

The applicant craves the grant of his application, with no order as to costs.

Background

The two parties involved in this matter are a formerly married couple in terms of the Marriages Act [Chapter 5:11].

Following an irretrievable breakdown in their relationship, the respondent sought a decree of divorce in the High Court. The order sought in the court a quo also regulated the distribution of their perceived matrimonial property.

During the course of those proceedings, the applicant contested the distribution of an immovable property known as House Number 114 Lomagundi Road, Harare. His chief argument was, that, there was no direct contribution towards the purchase of the property by the respondent and hence she was disentitled from any claim to the property as part of their divorce proceeds.

This proposition was countered by the respondent who insisted that she had been the primary caregiver to their family and had remitted the various monies she had earned to the applicant during the subsistence of their marriage.

The applicant's purported former second wife also testified to the same effect on behalf of the respondent. She submitted, that, the respondent had raised various amounts of income that she submitted to the applicant during their marriage.

In the event, the court a quo found in favour of the respondent and granted her a fifty percent share in the property.

Irked by the High Court's determination, the applicant launched a subsequent appeal to the Supreme Court.

From the submitted grounds of appeal, the sole issue that arose for determination was whether the court a quo had erred in awarding the respondent a fifty percent share in the contested immovable property.

It was submitted, on behalf of the applicant, that, the court a quo had adopted a narrow construction of the principle of equality as the respondent had not contributed towards the purchase of the immovable property. It was contended, that, the judgment by the court a quo upset the established jurisprudence regarding the primary considerations for equitable distribution of matrimonial property.

Per contra, the respondent submitted that the court a quo had exercised its wide discretion under section 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”). It was contended, that, the High Court, in arriving at its determination, was guided by the Constitution as well as established precedent.

The respondent submitted, that, taking into consideration the circumstances of the case, the court a quo's determination could not be faulted.

Once seized with the matter, the Supreme Court proceeded to first correct the order of the court a quo, that had omitted to grant a decree of divorce before distributing the parties matrimonial property.

On the merits, it re-affirmed the respondent's position, that, section 26(c) and (d) the Constitution, as well as international law, mandated a fair and equitable distribution of matrimonial property. The Supreme Court upheld the court a quo's determination on the basis, that, the court a quo had properly exercised its discretion under the Matrimonial Causes Act.

The Supreme Court also noted, that, the applicant's moral turpitude was a critical factor in the decision of the High Court. The applicant's conduct, in trying to frustrate the equitable distribution of matrimonial property, was held to justify the order granted by the High Court.

Thus, the appeal was held to be meritless and dismissed.

Thereafter, the applicant failed to note an application for leave to appeal against the Supreme Court's decision within the allotted timeframe stipulated by the Constitutional Court Rules, 2016.

Based on the foregoing, the applicant filed the instant application before this Court on 22 March 2022.

The judgment of the Supreme Court was handed down on 29 June 2020 and the Rules of this Court provide fifteen days from the date of judgment to apply for leave to note an appeal against the judgment.

The applicant was evidently barred from noting his application for leave to appeal against the Supreme Court's decision and hence he has filed the present application for condonation.

In his founding papers filed of record, the applicant averred that his application for condonation ought to be granted as the intended application for leave to note an appeal enjoyed prospects of success.

It was contended, that, the applicant enjoyed a right to petition the Constitutional Court under section 69(3) of the Constitution, and, in the present instance, such access hinged on the existence of a constitutional matter in the subordinate court. He averred, that, the Supreme Court over-extended the import of the notion of “equality” when interpreting the provisions of the Matrimonial Causes Act.

It is on the basis of the foregoing, that, the applicant submitted that he had a justiciable right to equality, under section 56 of the Constitution, that ought to be protected by this Court.

He averred, that, section 56(3) of the Constitution, in particular, prohibited every person, including judicial officers, from discriminating against litigants based on their culture.

He asserted, that, the High Court's determination was primarily influenced by his cultural practice of taking another spouse during the subsistence of his marriage to the respondent.

The applicant advanced the position, that, the Supreme Court consequently failed to protect his right to equality. This constituted a flagrant violation of his fundamental right which ought to be redressed by this judicial forum.

Regarding the extensive delay in applying for leave to note an appeal, the applicant pleaded that he had limited financial liquidity to afford legal consultation and was oblivious of the prescribed period to access this Court.

He also averred, that, the Covid-19 pandemic militated against the filing of the present application due to onerous lockdown restrictions.

The applicant conceded, that, the extent of the delay in filing the application was inordinate but countered this concession by reasoning that, at any rate, the respondent was not prejudiced by the delay due to the peculiar circumstances of the matter.

The application was strenuously opposed by the respondent.

She averred, that, the Supreme Court was not seized with a constitutional matter and did not determine any constitutional issues in rendering its verdict. The respondent submitted, that, the draft grounds of appeal filed by the applicant related to general points of law.

It was contended, that, the judgement of the Supreme Court did not stray from the established legal precepts governing the distribution of matrimonial property in determining the rights of the parties.

The application was deemed to be an abuse of court process due to the obvious absence of any constitutional issue in the Supreme Court's judgment.

Submissions by Counsel

Counsel for the applicant, conceded that there was an extensive delay in filing the present application and that such delay was inordinate. She countered her concession by arguing, that, the applicant had been pondering his available remedies due to the complexity of the matter. It was submitted, that, the applicant sought legal advice from counsel, a process that extended the delay in filing the present application.

When it was pointed out that the founding affidavit on record contradicted her submissions, counsel admitted that the applicant had not been candid with the Court.

She then submitted, that, the applicant's precarious financial position had prevented him from engaging legal counsel timeously.

Upon further inquisition by the Court, it was conceded that the applicant's explanation for the delay was unreasonable.

Addressing the Court on the balance of convenience between the parties, counsel for the applicant submitted, that, the respondent would not suffer any financial prejudice if leave to appeal were to be granted.

She insisted, that, the filing of the matter was not predicated on the election of the respondent to exercise her right to liquidate her fifty percent holding in the disputed immovable property. It was advanced that other measures could be employed to alleviate any possible prejudice suffered by the respondent as a result of the petition to this Court.

To buttress her submissions, counsel for the applicant submitted, that, the applicant would provide for the respondent's financial needs whilst this Court dealt with the substance of the parties dispute.

As regards the existence of a constitutional matter, counsel for the applicant submitted, that, the Supreme Court amended the law by awarding the respondent a fifty percent share in the property.

When pressed on the exact constitutional issue determined a quo, counsel conceded that the Supreme Court did not explicitly deal with any constitutional matter. Rather, it was the import of its determination that raised a constitutional issue.

She submitted, that, the court a quo legislated over and above what was provided for in the Matrimonial Causes Act.

In essence, it was argued that the Supreme Court failed to properly apply the principles set out in the Matrimonial Causes Act.

Counsel for the applicant submitted, that, the applicant was punished for conducting his marital affairs in a polygamous manner. She indicated that the judgment reprimanded the applicant for indulging in a potentially polygamous marriage during his union with the respondent.

In any event, counsel for the applicant was unable to pinpoint specific portions of the Supreme Court's judgment that admonished the applicant's polygamous conduct.

In a bid to lend credence to her submission on this aspect, she argued that the issue was addressed in the proceedings before the High Court.

However, the High Court judgment was not made part of the record before this Court.

Nonetheless, counsel for the applicant persisted with her argument, that, the Supreme Court discriminated against the applicant on the grounds of custom and culture and that this raised a constitutional matter.

Per contra, counsel for the respondent submitted, that, the applicant had conceded that the delay in filing the instant application was inordinate and urged the Court to disregard the reasons proffered in explaining the delay.

She referred to correspondence on record between the parties that highlighted their concurrence in implementing the order of the High Court that had been upheld on appeal. It was submitted, that, the applicant initially did not highlight any dissatisfaction or intent to appeal against the Supreme Court's determination.

Thus, counsel for the respondent argued, that, the present proceedings were only prompted by the respondent's election to sell and liquidate her fifty percent share in the disputed property.

As regards the balance of convenience, counsel for the respondent highlighted that the respondent was advanced in age, well beyond 65, and that the protracted legal dispute threatened her already precarious financial position.

She submitted that her client needed the judgment of the High Court to be executed so that she could access the financial proceeds from the sale of the immovable property.

Counsel for the respondent also noted that the applicant had not contested the respondent's submissions through an answering affidavit and that therefore her averments were to be deemed uncontested.

Counsel for the respondent vehemently rebutted the notion that the Supreme Court dealt with a constitutional question in its judgment.

She submitted, that, reference was made to section 26 of the Constitution in its judgment to highlight that the Supreme Court was alive to the application of the principle of equality in determining the rights of the parties in terms of the Matrimonial Causes Act.

It was contended, at any rate, that, the Supreme Court's application of the aforementioned section 26 of the Constitution was not an intended ground of appeal as formulated in the draft notice of appeal. She argued, that, the applicant's objection was against the application of the Matrimonial Causes Act. Thus, the prospective appeal was doomed to fail on the grounds advanced by the applicant.

It was submitted that this Court could not exercise its discretion in a non-constitutional matter.

Counsel for the respondent concluded, that, the application amounted to an abuse of process due to the absence of any prospects of success....,.

Existence of a Constitutional Matter

The Constitutional Court is a specialised court whose jurisdiction is limited to strictly constitutional matters, as outlined in section 167(1)(b) of the Constitution.

This emphasis, on the existence of a constitutional question, is reinforced in the rules that govern access to this Court. The relevant rules in this regard are Rule 35, which governs applications for condonation and extension of time, and Rule 32 which deals with the substance of the prospective application for leave to note an appeal should the Court accede to the request for condonation.

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:

“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

The requirement of the existence of a constitutional matter, as an imperative, is further highlighted by the succeeding Rule 32(3) of the Constitutional Court Rules which mandates that an application for leave to appeal to this Court must contain or have attached to it a statement setting out clearly and concisely the constitutional matter raised in the decision sought to be appealed against.

In addition, the founding affidavit supporting the application must verify the fact, that, the cause of action arises from a decision of the subordinate court premised on a constitutional matter.

Therefore, it is axiomatic, that, where the subordinate court has not determined a constitutional issue, a litigant has no right of appeal to this Court.

Access to the jurisdiction of this Court unavoidably hinges upon the existence of this juridical fact.

It is unarguably the sine qua non of any approach to the specialised forum of the Constitutional Court.

The applicant's counsel pinpointed section 26(c) of the Constitution, which was referred to in the impugned judgment, as establishing a basis for petitioning this Court.

Counsel for the applicant submitted, that, the Supreme Court violated the import of equality in respect of the rights of the parties at the dissolution of their marriage in applying the principles enunciated in the Matrimonial Causes Act.

This position was countered by counsel for the respondent who insisted, that, the Supreme Court disposed of the matter on a non-constitutional basis.

She cited the case of Chiite & Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust 2017 (1) ZLR 603 (CC) to support the contention, that, a prospective appeal to this Court ought to be premised on a constitutional question that was determined by the lower court. She pointed to the prospective grounds of appeal as being devoid of any meaningful constitutional challenge.

It is an established position in our jurisprudence, that, mere reference to the Constitution by a subordinate court does not establish a constitutional issue.

In casu, the application for condonation, and the attached draft application for leave, fail to meet the essential requirement of a constitutional matter as obligated by the Constitution and the Rules.

The applicant's founding affidavit does not set out the constitutional matter that was determined by the Supreme Court.

The applicant seems keenly aware of this fact as evidenced by the poverty of his flimsy reference to section 56 of the Constitution in his papers in seeking to establish a basis for invoking the jurisdiction of this Court.

Furthermore, the attempt to latch onto section 26(c) of the Constitution, in the course of submissions by counsel for the applicant, is irreconcilable with the applicant's pleadings.

The founding affidavit and the draft application for leave are patently devoid of any mention of the specific manner in which the Supreme Court is alleged to have violated the rights protected under that constitutional provision.

This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC), clarified the parameters of a constitutional matter as follows:

“The mere reference to the Constitution did not make what was said a constitutional matter. Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court. The effect of what the Court said in relation to section 176 of the Constitution was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter.

Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.”…,.

The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1) ZLR 434 (CC)…, wherein the following was observed regarding the right of appeal to this Court:

“A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal, provided for in Rule 32(2) of the Rules, is to show that the Court has jurisdiction, as provided for in the Constitution, to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.”

From the above-cited authorities, it is evident that an application for leave to note an appeal against the determination of a lower court in the Constitutional Court hinges upon the existence of a constitutional matter.

The present application for condonation and extension of time cannot be granted as the prospective application for leave to appeal fails to satisfy the threshold for accessing the jurisdiction of this Court. The reference, by the court a quo, to the concept of equality, enshrined in section 26(c) of the Constitution, was purely tangential and not in any way dispositive of the main non-constitutional issues determined by that court.

Thus, the absence of a constitutional matter critically undermines the validity of the instant application.

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

This matter was heard on 13 January 2016 with judgment being reserved.

On 27 January 2016, this court determined, that, in view of the fact that this case raises similar issues as that of Farai Lawrence Ndlovu & Anor v The Minister of Justice Legal & Parliamentary Affairs, Constitutional Application No.50 of 2015, it was convenient that the two cases be consolidated and heard simultaneously.

To that extent, the court issued the following order:

“IT IS ORDERED THAT:

The matter be and is hereby postponed sine die to enable this case to be heard by the same bench that heard the matter of Cuthbert Chawira & Ors vs Minister of Justice CCZ47/2015. The Registrar is directed to set this matter at the earliest convenient date for hearing.”

In view of the above directive, the handing down of judgment in this case was postponed pending the completion of Case No.50/15.

The matter however dragged on and on until it was eventually struck of the roll on 1 January 2017 thereby paving way for the completion and delivery of judgment in this case.

The application is in terms section 85(1)(a) and (d) of the Constitution which entitles both natural and juristic subjects to approach this Court for relief as a court of first instance whenever their fundamental human rights, enshrined in Chapter 4, have been infringed or threatened.

All the fifteen applicants are condemned prisoners on death row awaiting execution after being sentenced to death by the High Court. They have been on death row for varying periods of time ranging from 2 to 18 years of incarceration.

They have now approached this court complaining that the length of their stay on death row is an affront to their human dignity and freedom from torture or cruel, inhuman or degrading treatment or punishment in violation of sections 51 and 53 of the Constitution.

Section 51 of the Constitution provides that:

“51 Right to Human Dignity

Every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected.”

Section 53 of the Constitution goes on to protect subjects against torture, cruel, inhuman and degrading treatment or punishment. It provides that:

“53 Freedom from torture or cruel, inhuman or degrading treatment or punishment

No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.”

Initially, the applicants sought commutation of their respective death sentences to life imprisonment. That relief was, however, abandoned at the hearing through an amended draft order seeking to quash the sentences of death and remittal of the cases to the High Court for re-sentencing.

The amended draft order reads:

“IT IS ORDERED THAT:

1. In remedy, the sentences of death imposed on the Applicants, namely, Cuthbert Tapuwanashe Chawira, Masimba Mbaya, George Munyaradzi Manyonga, Jack Sikala, Livingstone Sithole, Jack Nyati, Busani Tshuma, Killian Mpofu, Wisdom Gochera, Ezra Manenji, Kudakwashe Taonangwere, Farai Lawrence Ndlovhu, Governor Masawaire and Lyton Mathe be quashed and determination of the appropriate substituted punishment for each Applicant be remitted for hearing.

2. The First Respondent pays costs of suit.”

The applicants cases are at varying stages of progress to finality. Some are yet to appeal to the Supreme Court whereas others have had their appeals dismissed but are yet to exercise their right to seek Presidential pardon in terms of section 48(2)(e) of the Constitution.

Thus, they are all approaching this court without first exhausting the statutory legal remedies available to them comprising:

1. Seeking review of the administrative action or omission complained of under the Administrative Justice Act [Chapter 10:28].

2. Appealing to the Supreme Court in terms of section 70(5)(b) of the Constitution.

3. Seeking Presidential pardon or commutation under section 48(2)(e) of the Constitution.

The crisp issues which then arise for determination are:

1. Whether or not this court has the jurisdiction to grant the order requested by the applicants, and, if so, whether the issues raised are ripe for determination.

2. Whether or not the delay in carrying out the death sentences is a violation of the applicants fundamental human rights under section 51 and 53 of the Constitution.

In retaining the death penalty, albeit, under very restricted circumstances, the new Constitution has laid out an elaborate procedure which must be meticulously followed, under section 48, which provides as follows:

“FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

48 Right to Life

(1) Every person has the right to life.

(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and —

(a) The law must permit the court a discretion whether or not to impose the penalty;

(b) The penalty may be carried out only in accordance with a final judgment of a competent court;

(c) The penalty must not be imposed on a person —

(i) Who was less than twenty-one years old when the offence was committed; or

(ii) Who is more than seventy years old;

(d) The penalty must not be imposed or carried out on a woman; and

(e) The person sentenced must have a right to seek pardon or commutation of the penalty from the President.

(3) An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.”…,.

Both the judiciary and everyone concerned are dutifully obliged to scrupulously observe the above mandatory constitutional provisions.

1. Whether or not this court has the jurisdiction to grant the order requested by the applicants

The Constitutional Court is a creature of the Constitution whose jurisdiction is to be found squarely within the four corners of the Constitution, under section 167, of which subsection (1) provides as follows:

“167 Jurisdiction of Constitutional Court

(1) The Constitutional Court —

(a) Is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;

(c) Makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

(2) Subject to this Constitution, only the Constitutional Court may —

(a) Advise on the constitutionality of any proposed legislation, but, may do so only where the legislation concerned has been referred to it in terms of this Constitution;

(b) Hear and determine disputes relating to election to the office of President;

(c) Hear and determine disputes relating to whether or not a person is qualified to hold the office of Vice-President; or

(d) Determine whether Parliament or the President has failed to fulfil a constitutional obligation.”…,.

Considering that the applicants complaint is that the delay in executing the sentences of death passed by the High Court is a violation of their constitutional rights under sections 51 and 53 of the Constitution, there can be no doubt that this is a constitutional matter over which this Court has jurisdiction under section 167 of the Constitution.

Despite that finding, it does not follow, that, every matter that has some constitutional connotations must necessarily be laid at this court's door.

The Constitution, as the mother of all laws, encompasses all other laws with the result that every legal contest has some constitutional implications. If all such cases were to be taken to this court, it would be overwhelmed to the extent of being dysfunctional. The existence of other courts and administrative authorities would be rendered nugatory.

This brings me to the doctrine of ripeness and constitutional avoidance.

Whether or not the constitutional issues raised are ripe for determination by the Constitutional Court

Zimbabwe operates a self-correcting hierarchical judicial system, where, in the ordinary run of things cases start from the lower courts progressing to the highest court of the land.

Generally speaking, higher courts are loathe to intervene in unterminated proceedings within the jurisdiction of the lower courts, tribunals, or administrative authorities.

In the recent case of Munyaradzi Chikusvu v Magistrate Mahwe HH100–15, the High Court had occasion to observe that:

“It is trite that judges are always hesitant and unwilling to interfere prematurely with proceedings in the inferior courts and tribunals. In the ordinary run of things, inferior courts and tribunals should be left to complete their proceedings with the superior courts only coming in when everything is said and done.”

In Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 DEVITTIE J observed, that, a higher court will intervene in unterminated proceedings of a lower court:

“only if the irregularity is gross and if the wrong decision will seriously prejudice the rights of the litigant or the irregularity is such that justice might not by other means be attained.”

Although the above judicial pronouncements were made by the High Court, on review, they are equally relevant to this Court's criteria for intervention in unterminated proceedings before lower courts, tribunals, and administrative authorities.

Those sentiments find expression in the words of GUBBAY CJ in the leading case of Catholic Commission for Justice and Peace in Zimbabwe v A-G & Ors 1993 (1) ZLR 243 (S)…, where the learned Chief Justice had this to say;

“Clearly, it (Supreme Court), has jurisdiction in every type of situation which involves an alleged breach or threatened breach of one of the provisions of the Declaration of Rights and particularly, where there is no other judicial procedure available by which the breach can be prevented. Compare Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S)…,.”

It is implicit in the learned Chief Justice's remarks, that, where there are other judicial remedies to prevent the breach of fundamental human rights, the Constitutional Court may withhold its jurisdiction.

What then distinguishes this case from Catholic Commission for Justice and Peace in Zimbabwe v A-G & Ors 1993 (1) ZLR 243 (S) is that, in that case, the Supreme Court only intervened at the last moment when all available remedies had been exhausted and all hope lost. The applicants appeals to the Supreme Court and pleas for Presidential pardon and clemency had failed and the date of execution announced.

Undoubtedly, that case was ripe for the Supreme Court's intervention as the highest court of last resort and final arbiter before execution.

The same cannot be said in this case where the applicants still have some alternative remedies at their disposal which I have already enumerated above.

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This Court, being a specialized court, only enjoys jurisdiction in constitutional matters.

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.The decision of the court a quo had dismissed the ...

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.

The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.

The Background

The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

Both the sixth and seventh respondents are cited in their official capacities.

On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.

The applicant was dissatisfied with the manner in which his case had been referred to the President.

Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.

The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

In section 332 of the Constitution, a constitutional matter is defined as “a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.”Accordingly, a constitutional matter arises where there is an issue in dispute raising questions of law, the resolution of which requires the ...

View Appeal
CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

Section 167 of the Constitution makes it clear that the Constitutional Court is the highest court on all constitutional matters.Section 176(1)(b) of the Constitution provides that the Constitutional Court decides only constitutional matters and issues connected with decisions on constitutional matters.Section 332 of the Constitution goes further to define a ...

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

I find the following excerpt from the book “Constitutional Litigation” 1st Ed…, by the learned authors MAX du PLESSIS, GLENN PENFOLD and JASON BRICKHILL, to be eminently apposite:“The quintessential example of a constitutional matter is one that involves the direct application of the Bill of Rights, that is, a constitutional ...

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application....,.

ABSENCE OF JURISDICTIONAL FACTS TO GROUND THE JUDICIAL SERVICE COMMISSION'S DECISION TO ADVISE THE PRESIDENT

An exhaustive analysis of this ground is tantamount to this court substituting its views for the prima facie views of the Judicial Service Commission (JSC) already acted upon on 13 December 2019.

I do not think that it is proper for this court to do so.

I observe only, that, on the face of it, the correspondence put before me reveals that the Judicial Service Commission (JSC) must have concluded that the applicant's conduct needed to be investigated by a tribunal. I am not sitting as an Appeal Court to determine the correctness of the JSC's decision but on review to decide whether any of the jurisdictional grounds for removal of a Judge from office is disclosed on the papers put before me and on which the decision to advise the President was made.

Section 187(1)(c) of the Constitution provides that gross misconduct is one such jurisdictional ground.

Whether there was gross misconduct is not for me to determine. The Tribunal's terms of reference cover that aspect.

By the same token, this court cannot make pronouncements on the merits or otherwise of an investigation which the tribunal is constitutionally empowered to do. The court is not the Tribunal.

I do not think it necessary for the applicant to effectively be a judge in his own cause by submitting, before this court, that the basis upon which the Judicial Service Commission (JSC) advised the President was petty.

That goes to the substance of that which the tribunal is to investigate, make findings, and recommend on.

I have already found that it would be remiss of me to rule on the correctness of the Judicial Service Commission's decision to advise the President.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

Section 332 of the Constitution defines a constitutional matter as:“…, a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution;”

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicant sought an order in terms of the draft. The applicant and the fourth respondent (the Prosecutor General) consent to an order of the Court in terms of the draft order, as amended.

The third respondent's position (the Commissioner General of Police, Zimbabwe Republic Police)
is that he will abide by the decision of the Court.

The first and second respondents (Sergeant Chacha and the Zimbabwe Anti-Corruption Commission) persist in their opposition to the granting of the original draft order and the order by consent.

When asked by the Court to provide the legal basis for their attitude, they were not able to advance any legal basis for their continued opposition to the granting of the order consented to by the applicant and the fourth respondent.

This quite clearly evinces an attitude of: “Why be difficult when one can be impossible?”

The papers before the Court clearly reveal that there is a real possibility that due process was not complied with in the handling of this matter.

In the light of that, the concession by the Prosecutor-General is based on sound legal considerations in this matter.

Quite clearly, a definitive decision on whether or not there was failure of due process in the handling of this matter can only be determined by the Constitutional Court, as opposed to a Judge sitting in Chambers. It is for the Constitutional Court, if it so finds that there were procedural failures of due process in this matter, to decide what remedies are available to the applicant.

The first and second respondents have no locus standi to drive this process forward without the fourth respondent, who is the dominus litis in all criminal prosecutions. Their continued and persistent opposition to the application is driven by something other than legal considerations.

I accordingly grant an order in terms of the consent draft order between the applicant and the fourth respondent. The consent draft order reads as follows:

“1. The Registrar is directed to set the matter down for hearing on an urgent basis.

2. Pending the determination of the case action in case no. CCZ73/2016, the criminal proceedings envisaged against the applicant, in terms of the charges levelled against him by the first respondent, are stayed.”

The timetable for the set down of the main Court application will be agreed between the applicant and the fourth respondent in consultation with the Registrar of this Court.

The applicant and the fourth respondent have now agreed on the timetable, and the agreed timetable is hereto attached.

“AGREED TIMETABLE FOR THE SET DOWN OF THE MAIN APPLICATION

1. The respondents shall file and serve their notices of opposition by 15 November 2016.

2. The applicant is to file an answering affidavit by 18 November 2016.

3. The applicant is to file and serve heads of argument by 25 November 2016.

4. The respondents shall file their heads of argument by 2 December 2016.

5. The Registrar is to set the matter down for hearing on the first available date thereafter.

6. Should any party find the need to file supplementary heads of argument, the same shall be filed not later than four days before the date of set down.”

Costs will be costs in the cause.

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

This was an opposed application. The original and main dispute was between the applicant and the third respondent. But, in this particular application, the applicant sought a remedy against the first and second respondents.

I guess the third respondent was cited merely as a nominal respondent being so much of an interested party.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 10:28]. She complained that, being administrative bodies and therefore entities governed by that Act, the first and second respondents had failed to adhere to the standards set out in section 3 of the of the Administrative Justice Act. Briefly, these are:

(i) The right of a person to receive adequate notice of the nature and purpose of any action proposed to be taken by an administrative body;

(ii) The right to a reasonable opportunity to make adequate representations; and

(iii) The right to adequate notice of any right of review or appeal where applicable.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

The details were these:

The applicant was quarrelling with the third respondent over a piece of sugar cane land on which they had been allocated by Government in terms of its land reform programme. The applicant had an offer letter dated 2004 over a piece of land that was plus or minus 50 hectares in extent. The third respondent also had an offer letter issued sometime in 2017 over a piece of land plus or minus 21 hectares in extent.

The applicant claimed the 21 hectares offered to the third respondent had been carved out of her own 50 hectares without due process.

She said, in September 2017, the third respondent, buoyed by that recent offer letter to him, had tried to force his way onto her land, yet, for thirteen years, she had been growing sugar cane undisturbed on the entire land - including the 21 hectares allegedly offered to the third respondent unprocedurally.

In September 2017, the applicant brought an urgent chamber application against the third respondent for an interdict to bar him from interfering with her farming operations on the disputed land.

I heard it. I never had to decide the matter. The parties agreed to an order by consent.

Essentially, the agreement was to have the matter referred to the first respondent for determination. The first respondent is the proper forum for such disputes. It is a constitutional body. In terms of section 297 of the Constitution, it is empowered to investigate and determine complaints and disputes regarding, among other things, the allocation of agricultural land.

On 14 September 2017, I issued an order by consent.

The operative part said the applicant would harvest the crop of cane on the disputed portion of the land, but, that, thereafter, all operations on it would cease pending the resolution of the dispute by the first respondent within thirty days.

The first respondent obliged.

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

BACKGROUND FACTS

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

THE APPELLANT'S CASE A QUO

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

THE RESPONDENT'S CASE A QUO

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

DETERMINATION OF THE COURT A QUO

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

APPELLANT'S SUPPLEMENTARY SUBMISSIONS

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

RESPONDENT'S SUPPLEMENTARY SUBMISSIONS

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

ISSUE(S) ARISING FOR DETERMINATION

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“169 JURISDICTION OF SUPREME COURT

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,. (Not relevant)

(3) Any person with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

CONSTITUTIONAL INTERPRETATION

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653 A…, that:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

The first is that 'the context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

APPEAL AGAINST AN ORDER OF CONSTITUTIONAL VALIDITY – TO WHICH COURT DOES IT LIE

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

COSTS

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

DISPOSITION

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

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Jurisdiction re: Judicial Deference iro Specialised Courts and Tribunals

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

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

Appealed
HH137-19 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: CHIKOWERO J

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH176-22 : NATIONAL PHARMACEUTICAL COMPANY (PVT) LTD vs WALTER NHAU
Ruled By: MUCHAWA J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

Appealed
SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

View Appeal
HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: MABHIKWA J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

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Law Portal Zimbabwe

Jurisdiction re: Judicial Deference iro Specialised Courts and Tribunals

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

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI Ruled By: MALABA DCJ

View Appeal SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O. Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL Ruled By: MUREMBA J

Appealed HH137-19 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: CHIKOWERO J

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED Ruled By: CHITAPI J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS Ruled By: MAKONI J

HH176-22 : NATIONAL PHARMACEUTICAL COMPANY (PVT) LTD vs WALTER NHAU Ruled By: MUCHAWA J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA Ruled By: DUBE J

Appealed SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

View Appeal HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE Ruled By: MABHIKWA J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: UCHENA J

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE Ruled By: MAKARAU JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: CHIKOWERO J

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO Ruled By: MAFUSIRE J

Appealed SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

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Zimbabwe

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

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

Appealed
HH137-19 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: CHIKOWERO J

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH176-22 : NATIONAL PHARMACEUTICAL COMPANY (PVT) LTD vs WALTER NHAU
Ruled By: MUCHAWA J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

Appealed
SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

View Appeal
HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: MABHIKWA J

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA