MOYO J: The Applicant filed an application in terms of section 3 of the
Administrative Justice Act [Chapter 10:28]. In this application Applicant
seeks an order in the following manner:-
i)
An order setting aside the decision of the Respondent to transfer the Applicant
without giving him an opportunity to be heard.
ii) An
order setting aside the decision to demote Applicant to an inferior post.
iii)
An order setting aside the decision to serve Applicant with a notice to vacate
a Masvingo government residence without alternative accommodation as being
unlawful unprocedural, unreasonable, unfair and substitute it with an order
that:
1)
The Masvingo status quo ante be restored without the loss of benefits
or alternatively if the Applicant remains at Gweru, that he occupies the office
of the Area Public Prosecutor attendant with all its benefits.
2)
The notice to vacate the Masvingo government accommodation without alternative
government accommodation be declared invalid.
The Applicant contends that the Respondent's decision contravenes section 3 of
the Administrative Justice Act [Chapter 10:28] in that it was unlawful,
unreasonable and unfair.
The Respondents raised a point in limine to the effect that the
application should be dismissed as it is in fact an application for the review
of a labour decision, wherein only the labour court has jurisdiction and
therefore it has been brought on the wrong platform. It is this point in
limine that I would want to deal with.
Section 4 of the Administrative Justice Act (supra) provides for
Relief against administrative authorities and it is worded as follows:
“Section (4) Subject to this Act
and any other law, any person who is aggrieved by the failure of an
administrative authority to comply with section 3 may apply to the High Court
for relief.” (Emphasis mine).
This section clearly
shows that the relief that can be sought by an Applicant in terms of section 3
is subject to the provisions of any other law. Section 7 of the same Act
provides thus:
“Without limitation to its
discretion, the High Court may decline to entertain an application made under
section 4 if the Applicant is entitled to seek relief under any other law,
whether by way of appeal or review or otherwise, and the High Court considers
that any such remedy must be first exhausted.”
The relief sought by Applicant is clearly a review of the decision of the
Respondents in their capacity as the employers of the Applicant.
Applicant's dissatisfaction with the steps taken by his employer and the manner
in which these steps were taken, resulting in his transfer and “demotion” are
purely a labour issue which the labour court in terms of section 89 (1)(d)(1)
of the Labour Act [Chapter 20:01] has jurisdiction in. That section
provides as follows:
“The labour court shall exercise the following function:-
Exercise the same powers to
review as would be exercised by the High Court in respect of labour matters.”
(Emphasis mine)
Section 89(6) of the Labour Act (supra) provides
that
“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).”
This in effect means that the labour court and only the labour court can
exercise review powers and any other powers regarding the decisions of
administrative authorities in labour matters.
Whilst the High Court has inherent jurisdiction in all matters, section 26 of
the High Court Act [Chapter 7:06] provides as follows:
“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 in Zimbabwe.” (emphasis
mine)
Section 27 (1) (a) of the High Court Act (supra) 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 or authority concerned (emphasis mine).
ection 89 of the Labour
Act (supra) as alluded to above clearly takes away from any
other court, the powers to determine or hear matters
provided for in that section. Powers of review in terms of section 3 and 4 of
the Administrative Justice Act (supra) where labour matters are
concerned in my view fall into the same category. On the other hand
section 26 of the High Court Act (supra) subjects the High Court
powers of review to the provisions of any other law, clearly meaning that where
another law provides otherwise, the High Court would not be allowed to exercise
review powers that have been specifically taken away from it by another
enactment. I therefore find that I can not usurp powers specifically
given to the Labour Court in no uncertain terms.
I am in total agreement with the findings of the learned judges in the
following cases; Samudzimu v Dairiboard Holdings HH 204/10, Tuso
vs City of Harare HH 1/04, Gwindingwi and another HH 168/11, and Medical
Investments Ltd vs Pedzisayi HH 26/10.
The essence of all these judgments was that the provisions of the Labour Act
specifically exclude the jurisdiction of the High Court in Labour matters.
It therefore follows that since I have found that whatever Applicant decides to
call his application, I have however on its grounds, facts and relief sought,
determined that this is in fact an application for review that the Applicant
decided to call a declarator, and it is therefore improperly before me as the
jurisdiction to review labour authorities' decisions clearly lies with the
Labour court.
I accordingly dismiss the application with costs for the aforestated reasons.
Dube, Tachiona Tsvangirai,
applicant's legal practitioners
Civil
Division, Attorney General's Officerespondents'
legal practitioners
