BHUNU
JA: 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 Act
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 Act.
Section
36(1) of the Statutory Instrument 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 s61(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:
1.
That the appellant should be denied audience because it was
approaching the court with dirty hands for want of compliance with
the law.
2.
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.
In
further developing its argument, it was submitted on its behalf that
the Council's insistence on payment of subscription dues was
tantamount to unlawful expropriation of its private property.
It
was finally submitted that the court a
quo's
determination in this respect amounted to a denial of the right to
protection of property under section 71 of the Constitution.
The
court a
quo's
sentiments are however consistent with the ruling in the
Associated
Newspapers of Zimbabwe case (supra)
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 at page 548A–D 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)
page
10 para 41, 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 at 769 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.
By
the same token, while under section 71 of the Constitution, the
appellant has the right to protect its property through the courts,
there is a corresponding obligation to do so with clean hands.
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.
ZIYAMBI
JA: I
agree
GARWE
JA: I
agree
Mtetwa
& Nyambirai,
appellant's
legal practitioners
Civil
Division of the Attorney-General's Office,
1st
and 2nd
respondent's legal practitioners
Messrs
Matsikidze Mucheche,
3rd
respondent's legal practitioners
