MOYO J:
This is an application for review of the Labour Court's decision. The
grounds for review are that:
a)
there was a gross irregularity in the proceedings in that the court entertained
the matter when it had not been properly set down in terms of the law.
b)
that the court issued an order that was actually different from the original
order sought, which order could only have been granted had new proceedings been
instituted. The relief sought, although not stated on the face of the
application for review as provided for by Rule 257, is stated in the draft
order as that the decision of the Labour court of the 21st of
February 2013 be set aside and be declared null and void.
The judgment subject to review in this application was apparently granted in
default. Applicant alleges that the matter was not properly set down and
he was not given notice of the proceedings of the 21st of February
2013.
First Respondent's counsel raised a point in limine to the effect that
this matter is not properly before this court as applicant should have made an
application for rescission of the judgment in question in terms of Section 92C
of the Labour Act [Chapter 20:01] and that section 89 of the Labour Act
[Chapter 20:01] excludes the High Court powers of review of matters in the
Labour Court.
Applicant's counsel contends that the inherent jurisdiction that the High Court
has includes the review of matters from the Labour Court. Section 92C of
the Labour Court Act [Chapter 20:01] provides for the rescission or alteration
by Labour court of its own decisions.
In subsection, 1 thereof it provides that:-
“Subject
to this section, the Labour court may, on application, rescind or vary any
determination or order-
a) which it made in the absence
of the party against whom it was made, or
b)
which the Labour Court is satisfied is void or was obtained by fraud or
mistake
common to the parties, or
c) in order to correct any
patent error.
Applicant's counsel contends that to apply for the rescission or alteration of
the judgment at the Labour Court would be to clothe the initial illegal and
void decision with legality. I hold a different view, for the legislature
has provided in Section 92C (b) that the Labour Court can rescind or vary any
judgment that it is satisfied is void. The legislature has given the
Labour Court the power to revisit all its decisions including the void
ones. The applicant does have a remedy in terms of section 92C of the
Labour Act which the legislature has specifically provided for litigants
including applicant's very own circumstances.
Applicant's counsel further contends that the High Court with its inherent
jurisdiction is armed with the requisite powers to review the decisions of the
Labour Court on the grounds that he has given.
Section 89 (1)(d)(1) of the
Labour Act [Chapter 20:01] provides as follows:-
“The Labour Court shall exercise the following functions:
Exercise
the same powers of review as would be exercisable by the High Court in respect
of Labour matters.”
Section
89(6) of the Labour Act [Chapter 20:01] provides as follows:-
“No
court other than the Labour Court, shall have jurisdiction in the first
instance to hear and determine any application, appeal or matter referred to in
subsection (1).
Section 26 of the High Court Act [Chapter 7:06] provides that:-
“Subject
to this Act and any other law, the High Court shall have power,
jurisdiction and authority to review all proceedings and decisions of all
inferior courts of justice, tribunals and administrative authorities within
Zimbabwe.”
Section 27(1)(a) of the High Court Act [Chapter 7:06] provides that:-
“Subject to this Act and any other law, the grounds on which any
proceedings or decisions may be brought on review before the High Court shall be
absence of jurisdiction on the part of the court, tribunal authority
concerned.
Section 89 of the Labour Act [Chapter 20:01] clearly gives the Labour Court
review powers and it takes away from any other court, the powers to determine
or hear matters provided for in that section, powers of review being one of
them. On the other hand Section 26 of the High Court Act [Chapter 7:06]
also subjects the High Court powers of review to the provisions of any other
law, meaning if another law already provides otherwise, the High Court would
not be in a position to exercise the same powers.
Section 26 also gives the High Court the power to review the decision of all inferior
courts. I am in agreement with the findings in the following
cases; Samudzimu v Dairboard Holdings HH 204/10 per CHIWESHE JP where he
found that the provisions of the Labour Act [Chapter 20:01] excluded the
jurisdiction of the High Court in areas where the Labour Court has
jurisdiction.
In the case of Tuso v City of Harare, HH 1/04, BHUNU J had occasion to
consider the legal import of Section 89(6) of the Labour Act and he held the
view that the High Court could not exercise the powers given to the Labour
Court in terms of section 89.
In the case of Gwindingwi and another HH168/11 MATHONSI J, alluded to
the effect of section 89(6) and he stated that section 89(6) is clear and
unambiguous that “no court has jurisdiction over matters falling under the
purview of the Labour Court. He further went on to state that the High
Court does not possess the machinery to jealously guard its inherent
jurisdiction where the legislature has specifically taken it away. I can
not agree more with this view. In the case of Medical Investments Ltd
v Pedzisayi HH 26/10, MAKARAU JP (as she then was), found that the effect
of section 89(6) of the Labour Act [Chapter 20:01] is that the Labour Court has
jurisdiction in all matters where the cause of action and the remedy are
provided for in the Labour Act. It is my considered view that Applicant
should have proceeded either in terms of Section 92C or Section 89(1) (d) (1)
of the Labour Act [Chapter 20:01] and not to approach this court with a matter
that the Labour Court could clearly handle yet Section 89(6) has stripped this
court of its review powers in so far as all the matters provided for by Section
89 of the Labour Act [Chapter 20:01] are concerned. I accordingly dismiss the
application with costs.
Job Sibanda
and Associates,
applicant's legal practitioners
Messrs Phulu and Ncube,1st respondent's legal practitioners
