The cardinal issue for determination in this case is the
appellant's right to be heard vis-a-vis its obligation to obey the law before
being heard.
In legal parlance, the issue has to do with the application
of the age old dirty hands doctrine as determined through the cases and
amplified by this Court in the case of Associated Newspapers of Zimbabwe (Pvt)
Ltd v Minister of State for Information and Publicity and Ors 2004 (1) ZLR 538
(S).
The factual and legal basis upon which the appeal is
founded is this.
The appellant is engaged in the cellular communication
industry. The Labour Act [Chapter 28:01] provides for a system of Collective
Bargaining Agreements regulating the employment relationships of employers and
employees in their respective industries. To that end, section 82(1)(a) of the
Labour Act [Chapter 28:01] provides that:
“Where a collective bargaining agreement has been
registered it shall, with immediate effect from the date of publication, in
terms of section eighty-five, or such other date as may be specified in the
agreement, be binding on the parties to the agreement, including all members of
such parties and all employers, contractors and their respective employees in
the undertaking or industry to which the agreement relates.”
By General Notice 106 of 2010 in the Government Gazette of
20 May 2010, the Registrar gave notice to extend the scope of the National
Employment Council for the Communications and Allied Services Sector to include
the interests of Cellular Communications. The General Notice reads:
“It is hereby notified, in terms of section 61 of the
Labour Act [Chapter 28:01], an application has been received for the variation
of scope of registration of the National Employment Council for the
communications, computer networks, internet and e-mail providers, broadcasting,
courier services in the Communications and Allied Sector in Zimbabwe.
Any person who wishes to make representation relating to
the application is invited to lodge such representation with the Registrar of
Labour, Private Bag 7707, Causeway, Harare within 30 days of publication of
this notice and state whether or not he wishes to appear in support of such
representation at any accreditation proceedings.”
Pursuant to the Notice, the appellant embarked on a
concerted effort to challenge the authenticity of the National Employment
Council Registration certificate in a series of letters culminating in the Registrar
of Labour writing to the appellant on 24 February 2011 confirming the
authenticity of the registration certificate in question. The letter reads in
part:
“We write to confirm that the certificate of registration
of the Employment Council with the change of name and variation of scope is
authentic and was issued by this Ministry.”
Despite such authentication, the appellant persisted with
its bid to challenge the authenticity of the certificate of registration
through its lawyers. The Registrar, however, considered that there were no
valid objections and proceeded to publish the Collective Bargaining Agreement
for the Communications and Allied Services Industry Statutory Instrument 1 of
2012 in the Government Gazette of 6 January 2012 with the result that
it became law and binding on that date in terms of section 82(1)(a) of the
Labour Act [Chapter 28:01].
Section 36(1) of Statutory Instrument 1 of 2012, S.I.1 of
2012, requires the appellant, as an employer in the industry, to register with
the said National Employment Council within one month of the Statutory
Instrument coming into effect.
Pursuant to the Collective Bargaining Agreement coming into
force, the General Secretary of the National Employment Council wrote to the appellant
on 9 January 2012 apprising it of the need to comply with the law while
pursuing legal remedies, if any. The letter reads in part:
“May we take this opportunity to put the matter to rest as
this issue is adequately covered by our current labour legislation in s 61(5)
of the Labour Act [Chapter 28:01] which specifically says;
'Any person aggrieved by any action by the Registrar in
terms of this section may appeal to the Labour Court.'
Econet thus has the right to seek redress in the courts if
it still queries the NEC variation of registration Certificate but until the
courts rule otherwise, this does not exempt Econet from complying with the
Communications and Allied Industry's regulations in terms of S.I.1 of 2012.
We have enclosed the NEC Registration Form and monthly
returns Form for your attention. We trust you will comply with the registration
requirements within the stipulated time.”
In open defiance of the law, the appellant did not register
with the National Employment Council or pay its union dues protesting that the
promulgation of S.I.1 of 2012 was irregular, and, to that extent, invalid.
Its further written protests were not responded to with the
authorities insisting on compliance. This prompted the appellant to approach
the High Court on review for redress in terms of section 3 of the
Administrative Justice Act [Chapter 10:28].
The relief sought included:
1. Condonation of the late noting of the review
proceedings.
2. Nullification of the registration of third respondent as
the National Employment Council for the Communications and Allied Services
Industry, S.I.1 of 2012.
3. Nullification of the corrected certificate of
registration issued by the second respondent to the 3rd respondent.
4. Nullification of sections 33, 34, 35, and 36 of the Collective
Bargaining Agreement Communications and Allied Services, S.I.1 of 2012.
At the hearing that followed, the respondents took two
points in limine:
(i) That the appellant should be denied audience because it
was approaching the court with dirty hands for want of compliance with the law.
(ii) That the High Court had no jurisdiction to entertain
the matter.
The High Court sustained the first objection in limine with
the learned presiding Judge making the following pertinent remarks:
“The Act does not go further to provide that pending the
determination of the review of the process leading to the promulgation, the law
is suspended. As long as the law remains in the statute books it must be
complied with.
In view of the above findings, this court will withhold its
jurisdiction until such time the applicant submits itself to the law.
The respondents prayed for costs on a higher scale. I see
no reason of {sic) denying them their prayer.”
Having come to that conclusion, the learned judge did not
find it necessary to determine the other issues raised until the appellant had
purged its defiance of the law.
The appellant has now approached this Court on appeal
complaining that the court a quo's refusal to grant it audience on account of
the dirty hands doctrine was unjust and a denial of its right of access to the
courts under section 69 of the Constitution….,.
The court a quo's sentiments are, however, consistent with
the ruling in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State
for Information and Publicity and Ors 2004 (1) ZLR 538 (S) in which the learned Chief Justice was at pains to emphasise the
need for citizens to obey the law first before approaching the courts. In that
case, his Lordship had occasion to remark…, that:
“This Court is a court of law, as such it cannot connive at
or condone the applicant's open defiance of the law; citizens are obliged to
obey the law of the land and argue afterwards….,.
For the avoidance of doubt, the applicant is not being
barred from approaching the court, all that the applicant is required to do is
to submit to the law and approach this court with clean hands on the same
papers.”
It is a basic principle of our law which needs no authority
that all subsisting laws are lawful and binding until such time as they have
been lawfully abrogated. If, however, any authority is required for this
proposition, one need not look further than 'Black on the Construction and
Interpretation of the Laws (1911)'…, where the learned author says:
“Every act of the legislature is presumed to be valid and
constitutional until the contrary is shown. All doubts are resolved in favour
of the validity of the Act. If it is fairly and reasonably open to more than
one construction that construction will be adopted which will reconcile the
statute with the constitution and avoid the consequence of
unconstitutionality.”
What this means is that all questioned laws and
administrative acts enjoy a presumption of validity until declared otherwise by
a competent court. Until the declaration of nullity, they remain lawful and
binding; bidding obedience of all subjects of the law.
The doctrine of obedience of the law until its lawful
invalidation was graphically put across by LORD RADCLIFFE in Smith v East Elloe Rural District Council [1956] AC 736…, when
he observed that:
“An order, even if not made in good faith, is still an act
capable of legal consequences. It bears no brand of illegality on its forehead.
Unless the necessary procedures are taken, at law, to establish the cause of
invalidity and to get it quashed or otherwise upset, it will remain as
effective for its ostensible purpose as the most impeccable of orders.”
If it were not so, and every litigant challenging the
validity of any law was excused from obeying the law pending determination of
its validity, there would be absolute chaos and confusion rendering the
application of the rule of law virtually impossible. This is because anyone
could challenge the validity of any law just to throw spanners into the works
to defeat or evade compliance with the law.
As the Communications and Allied Industry Regulations,
S.I.1 of 2012 were properly gazetted and became law on 6 January 2012, they are
valid and binding legislation. Every person to whom an Act or legislative
instrument relates is under a mandatory obligation to obey the law until it has
been repealed or declared invalid by the courts.
The appellant was therefore duty bound to obey the law
until such time as it had been lawfully abrogated regardless of its attitude to
the validity of the law.
Considering that Zimbabwe is a constitutional democracy
firmly founded on the rule of law it is difficult to fault the learned judge's
line of reasoning in any way. The term 'rule of law' connotes obedience and
submission to the dictates of the prevailing laws of the land.
While section 69(3) of the Constitution guarantees the
appellant's right to access the courts, it is no licence for it to approach the
courts with hands dripping with dirt. The appellant is not being denied access
to the courts. What it is being asked to do is to cleanse itself by obeying the
prevailing laws of the land before approaching the courts….,.
For the foregoing reasons, we found, as a matter of fact
and law, no merit in the appellant's complaint that it had been denied its
constitutional right of access to the courts and protection of its private
property.
The learned judge in the court a quo did not fall into
error or misdirect herself in any way by denying the appellant access to the
court until it had cleansed itself by complying with, and obeying, the
prevailing laws of the land.
For that reason, I conclude that there is no merit in this
appeal.
It is accordingly dismissed with costs.
