According to the Labour Act [Chapter 28:01], in particular section 3 thereof, the Labour Act [Chapter 28:01] applies to all employers and employees, save where the employment is in terms of the Constitution.

The applicant was not employed in terms of the Constitution.

In terms of section 89(1) of the Labour Act [Chapter 28:01], amongst the powers bestowed on the Labour Court by the Labour Act [Chapter 28:01] is the power to, in subsection 1(d)(i), exercise the same powers of review as would be exercisable by the High Court in respect of labour matters. This was the amendment ushered in by the Labour Amendment Act 7 of 2005.,. It is, therefore, common cause that when the application was filed, the Labour Amendment Act 7 of 2005 had already been promulgated.,. The effect of this, contends the respondent, is to oust the jurisdiction of the High Court in labour matters, even where the issue concerns a review. The respondent, in this contention, relies on section 89(6) of the Labour Act [Chapter 28:01]. According to the respondent, the section brings about a statutory ouster of jurisdiction by the High Court where applications, appeals or matters referred to in subsection (1) are concerned. The section is in the following terms:

"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)."

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:

The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in 1992, she was confirmed as a permanent employee of the respondent. On some date in 1991, the applicant, or someone purporting to be her, filled out an employment form in which it was represented that the applicant had attended Lord Malvern High School between 1977 and 1980 and had passed three subjects at "O" Level. The form was not signed nor dated.

It is pertinent to note here, that, the applicant did not deny the respondent's averment that it was the applicant herself who filled out the form.

On 18 November 1999, the respondent's Personnel Manager requested the applicant to furnish proof of her qualifications. This, the applicant failed to do. She was then charged with misconduct before a disciplinary committee. The charges that were preferred against her were communicated to her by a letter dated 15 June 2000 that read, in part, as follows:

"RE MISCONDUCT CHARGES

1. Insubordination - wilful and unreasonable disobedience of a lawful order from a superior. Category I section I.

2. Theft, fraud, forgery, involvement in bribery, misappropriation, falsification of documents. Category I section 3.

3. Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied conditions of his/her contract of employment. Category 1 section 5.

In the letter dated 18th November 1999, from the Human Resources Manager, you were advised that the Chief Executive had requested that you submit proof of the 3 "O" Level passes that you had claimed to possess on joining the Board in 1991, and also in the interviews of 1996, by 26th November 1999. You, however did not submit these or offer an explanation by the due date.

The Regional Personnel Officer (Northern) then wrote to you on 4th January 2000, reminding you to respond in writing to the Chief Executive's request by 12th January 2000; which she set as the new deadline. However, you did not respond in writing as had been required. Your failure to respond as required is considered to be insubordination."

The Disciplinary Committee found her guilty of the alleged act of misconduct and recommended that her employment be terminated.

The applicant appealed against this decision.

In accordance with the provisions of the respondent's Code of Conduct, her appeal was noted to the Chief Executive in accordance with the respondent's Code of Conduct who dismissed the appeal.

The applicant then filed the above application for review.

The applicant alleged, as her grounds for review:

(i) Firstly, that the Disciplinary Committee that sat to hear her matter was not properly constituted; and

(ii) Secondly, that the decision of the respondent to dismiss her is grossly unreasonable.

The application was duly opposed.

In opposing the application, the respondent raised three preliminary issues:

(i) Firstly, the respondent argued, that, the applicant has approached the wrong forum for relief.

The respondent contended that the applicant ought to have noted an appeal to the Labour Relations Tribunal in terms of section 101(7) of the Labour Relations Act [Chapter 28.01].

The issue of whether or not, in labour issues, this court has concurrent jurisdiction with the Labour Relations Tribunal has exercised this court before. In my view, GILLESPIE J has put the issue to some rest in Zikiti v United Bottlers 1998 (1) ZLR 389. I can do no better than quote from the learned judge. This is what he had to say:

" The particular point concerning the bringing of review proceedings in the High Court, in connection with an employment dispute not yet resolved in a lower authority, is generally raised as an instance of a suggested obligation to exhaust domestic remedies before approaching this court.

The Labour Relations Act does not expressly require that the domestic or statutory procedures and remedies be exhausted before an approach is made to this court.

The question whether an intention to this effect is to be necessarily implied from the legislation has therefore exercised the court on occasion. It would appear, from the authorities, that, in employment disputes the court does not hold its common law jurisdiction in principle to be ousted or suspended pending the exhaustion of domestic remedies."

In my view, the point made by GILLESPIE J is that the court will not ordinarily close its doors to any litigant who is entitled to relief from it, but, in the exercise of its inherent jurisdiction to regulate and control its proceedings so as to prevent an injustice or abuse of its process, the court may withhold its jurisdiction.

A caution is however sounded in the judgment that the courts should sparingly exercise this equitable discretion to withhold its jurisdiction, as the courts of law should be open to all.

I agree with this view.

The jurisprudential basis supporting this view is obvious and has its foundation in the universally acclaimed right of every one to an effective remedy by the competent national tribunals for acts violating rights granted him or her by the laws of the land: Article 8 of the Universal Declaration of Human Rights (1948).

In the matter before me, no reason was advanced as to why I should withhold the court's jurisdiction. It has not been shown that recourse to the machinery set up under the Labour Relations Act will confer a more effective remedy to the applicant.

I therefore decline the invitation to withhold my jurisdiction in the matter.

The jurisdiction of this court over all matters and people in Zimbabwe is a power inherent in the court as the only superior court in the land with unlimited jurisdiction at first instance.

It is not ousted save by the clearest language in a statute.

In instances where this court has concurrent jurisdiction with other bodies and tribunals set up by law, this court may, in its discretion, withhold its jurisdiction to allow the inferior tribunal to complete its processes. The court has, at times, withheld its jurisdiction to allow domestic and statutory remedies to be exhausted.

The test as to when this court will withhold its jurisdiction is, in my view, well settled.

In a judgment that has since been endorsed by the Supreme Court, MTAMBANENGWE J observed, in Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H)…, that, where domestic remedies are capable of providing effective redress in respect of the complaint, and the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so: see Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S).

In his heads of argument. The respondent argued that this court has no jurisdiction to determine the matter, exclusive jurisdiction in the matter having been reposed in the Labour Court by the provisions of section 89 of the Labour Act [Chapter 28:01] 

The issue of when the jurisdiction of this court is ousted by the provisions of the Labour Act [Chapter 28:01] has been before this court in a number of cases before. (See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and Others SC08-05 and Tuso v City of Harare 2004 (1) ZLR 1 (HC)).

In my view,  I think the position is now settled that a dispute falls to be determined exclusively by the Labour Court if such arises from a cause of action that has been specifically provided for in the Labour Court [Chapter 28:01], and for which a remedy is also provided for in the Labour Court [Chapter 28:01].

Section 89(1)(a) of the Labour Court [Chapter 28:01] provides that -

“(1) The Labour Court shall exercise the following functions -

(a) Hearing and determining applications and appeals of this Act or any other enactment; and

(b) ...,. and

(c) ...,.; and

(d) ..,.; and

(e) ...,..”

( The other paragraphs are inapplicable in this matter).

Section 89(6) of the Labour Act [Chapter 28:01] then proceeds that -

“(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 literal and grammatical meaning of the two sections read together have been held, in the cases that I have referred, to mean that if the dispute is provided for in the Labour Act [Chapter 28:01], both in terms of cause of action and remedy, the Labour Court has exclusive jurisdiction over the dispute.

In casu, it has been argued, on behalf of the applicant, that the applicant has brought a common law vindicatory claim against the respondent in which it seeks to recover its motor vehicle from the respondent. In this regard, the applicant is relying on the common law cause of action that allows an owner to vindicate its property from whomsoever is in unlawful possession of the same, and, therefore, the dispute falls outside the purview of the Labour Court which cannot determine common law causes of action.

As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals, amongst others, that are brought in terms of the Labour Act [Chapter 28:01]. Where, however, a dispute can either found a cause of action at common law and in terms of the Labour Act[Chapter 28:01], a case of apparent concurrent jurisdiction between this Court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can be easily resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction, being special, must prevail. It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Labour Act [Chapter 28:01] has made specific provisions for the same.

In my view, if the dispute is provided for in the Labour Act [Chapter 28:01], the Labour Court has exclusive jurisdiction - even if the dispute is also resolvable at common law,

In the arguments that have been made on behalf of the applicant, I find nothing that persuades me to move from the views expressed in the Zimtrade v Makaya 2005 (1) ZLR 427 (H) case. On the basis of the above, I would hold that this court has no jurisdiction in the above matter. In the result, I make the following order -

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.

The legal issue that arises in this chamber application is whether the provisions of the Labour Act [Chapter 20:01] exclude the jurisdiction of the High Court in areas where the Labour Court has jurisdiction. Section 89(6) of the Labour Act [Chapter 20:01] provides –

“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 89 of the Labour Act [Chapter 20:01] spells out the functions, powers and jurisdiction of the Labour Court.

In  Tuso v City of Harare 2004 (1) ZLR (H) BHUNU J had occasion to consider the legal import of section 89(6) of the Labour Act [Chapter 20:01]. The learned judge concluded…, as follows -

“It is manifestly clear to me that the intention of the legislature was to expressly exclude the jurisdiction of all other courts in areas where the Labour Court has jurisdiction in the first instance.”

I am in entire agreement with that conclusion. However, this exclusive jurisdiction only exists for matters provided for in section 89(1) of the Labour Act [Chapter 20:01].

It is important to note the historical context in which the Labour Court was created. Its predecessor, the Labour Relations Tribunal, was limited in terms of its powers and jurisdiction. Its decisions were subject to review by the High Court in much the same way as the decisions of any other domestic tribunal would be.  Even then, this court always took the view that a litigant must first exhaust the internal remedies availed to it in terms of the Labour Act, before approaching it for relief.

The Labour Relations Tribunal was, in 2003, transformed into a court whose powers of review were the same as those of the High Court - subject to the provisions of section 89(1) of the Labour Act [Chapter 20:01]. The intention of the legislature clearly was to establish a one stop shop for all labour matters and provide finality in litigation involving labour issues. Otherwise why create a structure that is parallel to the High Court?

..., on 7 July 2008, the applicant lodged contempt of court proceedings against the third respondent in the Labour Court.

The respondent raised a point in limine that this court has no jurisdiction on the basis that the claim arises from the termination of the applicant's employment contract with the respondent. The matter falls within the realm of the labour law.

The applicant then filed a replying affidavit in which he persisted with the issue that this court has jurisdiction to determine the matter.

I will deal with the point in limine first.

It is now settled in our law that this court has no jurisdiction to determine labour disputes. See Tuso v City of Harare HH01-04 and Mawere v Agriculture Finance Corporation HH46-06. The issue before me is whether the dispute between the applicant and the respondent falls within the definition of a labour dispute as envisaged under section 89(6) of the Labour Act [Chapter 28:01]. My view is that the dispute between the parties is not a labour dispute. The employment relationship between the applicant to the respondent no longer subsists. It terminated on 7 October 2011 by consent of both parties.

There is no dispute as to whether the relationship was lawfully terminated or not….,.

I agree with the sentiments of CHEDA J in Mandinda Ndlovu v Highlanders Football Club HB95-11 when he stated -

“It is my respectful view, that, while it was the intention of the legislature to oust the jurisdiction of the courts from adjudicating on matters involving labour disputes, in acknowledgement of debt even if it arises from a contract of labour is not what the legislature intended to mean. An acknowledgment of debt is nothing but a liquid document which is covered by the rules of this court, for which an application for a summary judgment can be applied for.”

On the initial day of the hearing of this matter, I invited counsel to address me on the second issue which I deemed to be quite central and decisive in this matter.

After hearing what I would term extremely conservative submissions from counsel I held that this court had jurisdiction to determine the issues raised in this matter.

If the applicant's complaint is that the respondents are inciting its employees to embark on illegal collective job action, this becomes essentially a labour dispute subject to resolution in terms of the Labour Relations Act.

It is now settled law that the High Court, or any other court for that matter, 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 1 and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

Section 106 of the Labour Act [Chapter 28:01] provides elaborate procedures for the resolution of ongoing or threatened illegal strikes in terms of the Labour Act [Chapter 28:01]. Resort to the High Court and the criminal law was therefore ill conceived, inappropriate and incompetent.

In supplementary heads of argument filed on 8 February 2011, the respondents argued this was a labour matter which should be dealt with under section 89 of the Labour Act Chapter 28:01].

It was submitted that this was so because the applicant had indicated that she had instituted proceedings in the Ministry of Public Service, Labour and Social Welfare to deal with the unlawful termination of her contract of employment. Counsel for the respondents submitted that the basis of the relief sought derived from an employer/employee relationship. The applicant was seeking a determination of what her terminal benefits were. The matter, it was argued, was pending at the Ministry of Public Service, Labour and Social Welfare.

Counsel for the applicant argued that the profit sharing agreement was not part of the applicant's conditions of service. This, it was argued, was a separate contract from the employment contract.

To the extent that the applicant's claim is firmly based on the fact that there was between her and the first respondent a distinct profit sharing agreement. I would agree with counsel for the applicant's submission. The applicant is not raising an employment dispute. She is making a claim on an agreement which, although probably influenced by virtue of her employment, had nothing to do with her contract of employment. The fact that her contract of employment might have placed her in an advantageous position into being granted a profit sharing agreement, does not, in my view, convert this into a labour dispute.

The thrust of the applicant's argument is that there was a profit sharing agreement between her and the first respondent. The first respondent had failed to honour her entitlements for the years 2006 and 2007. There was therefore need for a debatement of account in order to establish what she ought to have been paid.

In her heads of argument, counsel for the respondents correctly notes:

“The issue that has been brought before this Honourable Court relates to relief brought in instances where a partnership contract exists and an issue of accounting arises, for example upon dissolution of partnership. The issue of debatement is, for example, a sequitor to the fiduciary duty between parties who are in a partnership.”

The above realisation, in my view, is an acceptance of the fact that this is not a labour matter.

In his supplementary heads of argument, the respondent argued, in limine, that this court has no jurisdiction to determine the matter. 

Section 89(6) of the Labour Act [Chapter 28:01] 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).”

And subsection (1) provides, inter alia, in the applicable, paragraph as follows:-

“(1) The Labour Court shall exercise the following functions:-

(i) Hearing and determining applications and appeals in terms of this Act or any other enactment;”

The provisions of section 89(6) of the Labour Act [Chapter 28:01] and section 89(1)(i) of the Labour Act [Chapter 28:01] are clear and unambiguous. In all labour matters, no court, other than the Labour Court, has jurisdiction in the first instance to hear and determine any application, appeal or matter in which section 89 of the Labour Act [Chapter 28:01] has bestowed jurisdiction on the Labour Court.

Many a time legal practitioners have approached this court with applications pertaining to labour matters notwithstanding the ouster of jurisdiction in terms of section 89 of the Labour Act [Chapter 28:01]. Some have argued that this court, being clothed with inherent jurisdiction, is empowered to intervene in a purely labour dispute by virtue of that fact. Others have argued that, at the very least, this court has concurrent jurisdiction to determine labour disputes.

I am unable to agree with such submissions given the clear wording of section 89(6) of the Labour Act [Chapter 28:01] and section 89(6)(1) of the Labour Act [Chapter 28:01]. The legislature clearly intended that all labour disputes be dealt with, to the exclusion of any other court, by the Labour Court - at least in the first instance. If the legislature had intended otherwise, it would have enacted appropriate and deliberate provisions to that effect. I would hold that in the absence of any such provision, this court has no jurisdiction to hear and determine the present application.

I am fortified in this regard by the decision of MAKARAU JP…, in the case of DHL International (Pvt) Ltd vs Clive Madzikanda HH51-10 wherein the facts were on all fours with the facts in the present case. In that case…, the learned JUDGE PRESIDENT…, stated, and I agree, that it was now settled that “a dispute falls to be determined exclusively by the Labour Court if such arises from a cause of action that has been specifically provided for in the Act and for which a remedy is also provided in the Act.”

The learned JUDGE PRESIDENT then made reference to the case of National Railways of Zimbabwe vs Railways Artisans Union and Others SC08-05, and at page 3 of the cyclostyled judgment, she held as follows:

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals, among others, that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law and/or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can be easily resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction, being special, must prevail. It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Act has made specific provisions for the same.  In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”

I am satisfied that the Labour Court has exclusive jurisdiction to hear and determine, in the first instance, any application or appeals where the cause of action has been specifically provided for in the Labour Act and for which a remedy is also provided in the same Act.

Even if I am wrong in that conclusion, the applicant still has the insurmountable difficulty arising from the provisions of section 89(6) of the Labour Act [Chapter 28:01] which provides:

“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 subs (1).”

Subsection (1) of section 89 of the Labour Act [Chapter 28:01] lists the functions of the Labour Court. It states:

“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 subs (6) of s98 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.”

The jurisdiction of this court has therefore been ousted in matters provided for in the Labour Act [Chapter 28:01]. This court retains jurisdiction in respect of only those matters falling outside the ambit of the Labour Act [Chapter 28:01].

The Labour Court has jurisdiction in all matters where the cause of action and the remedy for that are provided for in the Labour Act [Chapter 28:01]: Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) 114 C; DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 204 A.

The applicant's claim arises out of what he perceives to be an unlawful termination of his employment contract. He seeks his reinstatement on the basis that the entire disciplinary process was flawed. These are matters which fall within the jurisdiction of the Labour Court. The jurisdiction of this court has therefore been ousted by section 89(6) of the Labour Act [Chapter 28:01].

The applicant has, unfortunately, proceeded in the wrong court without even exhausting domestic remedies.

With regards to the issue of jurisdiction, I have had sight of the case of Tuso v City of Harare HH01-04 which was referred to me by counsel for the respondent for which I am grateful.

The respondent filed an appearance to defend and subsequently a special plea the nub of which is that this court has no jurisdiction to determine this matter in that issues relating to non-payment of terminal benefits and arrear salaries are specifically within the purview of the Labour Court as these matters are provided for in the Labour Act [Chapter 28:01]. Reliance was placed on section 92 of the Constitution of Zimbabwe and section 89 of the Labour Act [Chapter 28:01] which was quoted in extensio. The respondent also relied on the following cases:

(a) ZIMTRADE v Makaya 2005 (1) ZAR 427 (H);

(b) Tuso v City of Harare HH01-04;

(c) Zhakata v Mandoza N.O. and N. M. Bank Ltd HH22-05; and

(d) McFoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC)…,.

The gist of the applicant's argument is that this court has inherent jurisdiction to deal with this matter since the Labour Act does not specifically preclude this court from determining a claim for non-payment of terminal benefits properly quantified and acknowledged by the employer. Further, it was submitted that in the present matter there is no employer/employee relationship or dispute that is provided in terms of the Labour Act as the cause of action is clearly premised on a document acknowledged by the respondent reflecting the quantified amount owed to the applicant which document amounts to an acknowledgement of debt. By signing the document acknowledging the terminal benefits, the respondent signified its intention and willingness to be bound by the terms of the same in line with the caveat subscriptor rule.

The applicant relied on the following cases:

(i) DHL International Ltd v Madzikanda 2010 (1) ZLR Z 01…,.;

(ii) Moyo v Gwindingwi NO & Anor HB168-11;

(iii) Samudzimu v Dairiboard Holdings Ltd HH204-10;

(iv) Lynne Ashley v John Goodwin t/a Cambridge Creche & Nursery School HH301-11; and

(v) Martin Sibanda & Anor v Bearson Chinemhute NO & Anor HH131-04.

(b) Jurisdiction

This preliminary matter is easily discounted on the basis of the reasoning and findings which the court made in the first matter in limine. This entire case, it is observed, is hinged on the vindicatory, and not disciplinary action which the respondent appears to want the court to accept. The court is satisfied that it has the requisite jurisdiction to hear as well as to make a determination which binds the parties to observe and respect the court's decision on the same. It is the court's view that the respondent brought into the equation the far-fetched issue of its purported desire to discipline the applicants as a way of confusing issues which are in themselves clear. The court is satisfied that it has never been, nor is it now, the intention of the respondent to prefer against the applicants' charges which are devoid of malice on its part. Any charges which are preferred against the applicants mala fides as appears to be the respondent's desire in casu constitute an unfair labour practice and therefore unlawful. Section 7(1)(b) of the Labour Act [Chapter 28:01] is pertinent on the point. Neither the Labour Court nor this court, let alone the law, supports the respondent's action of translating what is a purely a civil matter between the parties into a purported labour dispute solely as a way of punishing the applicants for their perceived stubbornness.

If the respondent did have a genuine, as opposed to a vindictive, grievance against the applicants, it would not have sat on its intended action for the length of the observed period of time without doing anything about the matter which it appears to have held so dearly to it.

The law and the courts guard jealously their inherent right, as well as duty, to interfere with employers who take the law into their own hands under the guise that they want to discipline members of their workforce when, in actual fact, their aim and object are totally different from what they say they want to achieve in a lawful manner. Once it is discovered, as it was in the present case, that the employer's purported conduct is unlawful and can best be resolved through lawful means, the court would be failing in its duty if it did not, and does not, put an effective stop to that conduct.

The respondent did well to institute the action which it did under case number HC10472/13. The court which is seized with the matter will, in the fullness of time, determine the unlawfulness, or otherwise, of the applicants' conduct. The court is, accordingly, satisfied that it is clothed with the jurisdiction not only to hear the present application but also to determine its merits and demerits as well as coming up with a clearly defined position on the same. 

In response to the respondents' opposition, the applicant submitted that the Labour Court has no jurisdiction to issue a declaratur, and, as such, the applicant cannot obtain the remedy through the provisions of the Labour Act [Chapter 28:01]. The Labour Act [Chapter 28:01], it was submitted, spells out what the Labour Court can do.

The applicant said the High Court, through its inherent jurisdiction, was the correct forum to be approached by the applicant for the relief sought. Furthermore, it was observed that section 13 of the High Court Act [Chapter 7:06] provides that:-

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

It is indeed also important to note that in addition to the above provision in the High Court Act, sections 171(1)(a) and 172(a) of the Constitution of Zimbabwe Amendment (No 20) Act 2013, provide as follows:-

“171(1). The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

172(2). The Labour Court has jurisdiction over matters of Labour and employment as may be conferred upon it by an Act of Parliament.”

Unless legislatively ousted, the jurisdiction of the High Court extends to all civil matters in Zimbabwe. This is the position as of now, notwithstanding the existence of the Labour Court whose jurisdiction is dependent on what an Act of Parliament says. I therefore believe it would be unconstitutional for the High Court to deny a litigant a hearing in any civil matter if its jurisdiction in that matter is not specifically excluded through legislation. The Zimbabwean High Court can hear any civil matter - including labour-related matters such as this one.

A number of authorities were correctly cited to prove that the Labour Court has no jurisdiction to deal with interdicts. In the main, reference was made to the following cases:-

“NATIONAL RAILWAYS OF ZIMBABWE v ZIMBABWE RAILWAY ARTISANS UNION & ORS: SC08-05 where ZIYAMBI JA stated:

The Application for an Interdict

It was contended by the appellant that the Labour Court erred in dismissing the point in limine raised by the appellant, namely, that the Labour Court had no jurisdiction to entertain an application of this nature, which was for an interdict…,.

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.” (pages of the Cyclo-styled judgement).

See Also BARCLAYS BANK OF ZIMBABWE LIMITED V SHEPHERED NDIRAYA SC72-05 where MALABA JA stated:

“As the Labour court can only hear and determine applications for relief specified under the appropriate provisions of the Act and there was no power to grant the relief sought by the respondent, the leaarned senior president could not interdict the appellant from conducting disciplinary hearing proceedings under its employment Code of Conduct.” (page 4 of the cyclo-styled judgement).

See Also: HAMILTON FORTUNATE GOMBA v ASSOCIATED MINE WORKERS UNION HH118-05.”

The above reflects what the Labour Court, as a creature of statute, can do….,.

In considering submissions made by both sides, I am satisfied that this court has jurisdiction to deal with the matter before it. Admittedly, the Labour Court has jurisdiction on all those matters specified in the Act that created it. It, however, has not been empowered to issue/grant interdicts, defined in HERBSTEIN and VAN WINSEN – The Civil Practice of the Supreme Court of South Africa 4^th ed as follows:-

“An interdict is an order made by a court prohibiting or compelling the doing of a particular act of protecting a legally enforceable right which is threatened by continuing or anticipated harm. Most interdicts are prohibitory in nature, ordering the respondent to desist or refrain from doing a particular act. A mandatory interdict, on the other hand, orders the respondent to perform an act.”…,.

In casu, the court is being asked to compel continued payment of the applicant's salary and benefits.

Notwithstanding the wording of the draft order, I do strongly believe that the exact relief the applicant is seeking is to be found in his founding affidavit. In para 5.2 of his founding affidavit, the applicant clearly states that is “is an application to compel respondent to pay him full salary and benefits pending the finalisation of the Retrenchment proceedings allegedly instituted by the respondent and pending before the Retrenchment Board or the lawful termination of my contract of employment.”

That is the relief this court is being asked to grant.

The applicant is simply asking this court to compel the respondent to continue paying him his salary until he is retrenched in terms of law and I believe this court has jurisdiction to entertain the applicant's application for the relief he seeks.

I am in total agreement with MAKARAU JP…, when she stated in DHL International Ltd v Madzikanda HH51-10 that the Labour Court has exclusive jurisdiction in matters relating to suspensions from employment and that the possession of the employer's property by an employee in terms of the contract of employment is so interdependently linked to the contract that one cannot decide on one without deciding on the other. For that reason, if the Labour Court has exclusive jurisdiction over the one, it must have exclusive jurisdiction over the other.

Section 89(6) of the Labour Act [Chapter 28:01] provides:

“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).”

In addition to that, Section 89(1)(d1) of the Labour Act [Chapter 28:01] provides that the Labour Court shall have “the same powers of review as would be exercisable by the High Court in respect of Labour matters.”

This court has had occasion, in a number of cases, to interpret these provisions which were introduced to the Labour Act in 2003. BHUNU J was more explicit in Tuso v City of Harare 2004 (1) ZLR (1) (H)…, where the learned judge said:

“It is manifestly clear to me that the intention of the legislature was to expressly exclude the jurisdiction of all other courts in areas where the Labour Court has jurisdiction in the first instance.”

At 4C he said;

“It is my considered view that it is only in respect of those employees who do not fall under the purview of the Labour Relations Act that the High Court may exercise its general powers of review because its powers in this regard have not been expressly excluded by statute.”

This interpretation was followed by BERE J in Plaza Hotel (Pvt) Ltd v Marimbita and Another 2007 (1) ZLR 80 (H)…,.

On his way to dismissing an application on the basis that the applicant had not exhausted domestic remedies, KARWI J, in Chawora v Reserve Bank of Zimbabwe 2006 (1) ZLR 525 (H)…, criticised the decision in Tuso v City of Harare 2004 (1) ZLR (1) (H) as follows:

“It seems to me that there is no specific provision in the Labour Act that ousted this court's jurisdiction.  I am of the considered opinion that a cursory and simplistic approach was adopted in the Tuso case.  Besides jealously guarding the inherent jurisdiction of this court, the Sibanda case (Sibanda and Another v Chinemhute NO and Another HH131-04) correctly takes into recognition the fact that there is no law in Zimbabwe which has ousted the jurisdiction of this court in such matters.”

I respectfully disagree.

Section 89(6) of the Labour Act [Chapter 28:01] is clear and unambiguous that “no court” has jurisdiction over matters falling under the purview of the Labour Court. This court does not possess the machinery to jealously guard its inherent jurisdiction where the legislature has specifically taken it away.

I find the interpretation made by MAKARAU JP…, in Medical Investments Ltd v Pedzisayi HH26-10 more compelling. It is to the effect that the Labour Court has jurisdiction in all matters where the cause of action and remedy are provided for in the Labour Act. Where the cause of action and remedy are at common law, the jurisdiction of the High Court is not ousted. See also DHL International Ltd v Madzikanda HH51-10.

In casu, the applicant is contesting the termination of her employment contract on which her right of occupation of No.5 Lourie Road, Burnside, Bulawayo, is premised. The cause of action and the remedy are in the Labour Act. For that reason, the jurisdiction of this court has been ousted by section 89(6) of the Labour Act [Chapter 28:01].

The applicant has therefore proceeded in the wrong court. She did not exhaust remedies available to her. No amount of double speak can alter that position….,.

In the result, I make the following order, that

The applicant is guilty of failure to act timeously in seeking the appropriate remedies provided by the Labour Act.

The applicant is guilty of flirtting from one legal practitioner to another like a bee that flirts from flower to flower in the never-ending search for the right pollen to improve the quality of its honey. In this case, the applicant must accept the blame for the resultant multiplicity of actions which it instituted, in the wrong fora, with no relief in sight. This court is not at liberty to rescind a default judgment in which it registered an arbitral award based on labour issues just because the appeal to the Labour Court against the arbitrator's decision has been dismissed for want of prosecution.

This court is not at liberty to substitute its discretion for that of the Labour Court when it comes to a determination of the merits of an arbitral award based on labour issues. 

In conclusion, I find that the applicant has failed to meet the requirements of rescission of judgment in terms of Rule 63 of the Rules of this Court. It would be incompetent for this court to grant the relief that the applicant is seeking, which relief must be preceded by a ventilation of the merits of the appeal to the Labour Court. It is regrettable that the applicant has chosen to submit itself to the dangers of conflicting legal advice as a result of constantly changing its legal representatives. This is a very simple labour matter that ought to have been conclusively disposed of in the right court. 

The jurisdiction of the Labour Court is governed by Section 89 of the Labour Act [Chapter 28:01]. The relevant paragraphs read as follows;

“89(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) …,.; and

(c) …,.;

(d) ….,. ;

(e) …,.;

(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).”

These provisions have been interpreted in a number of cases. In DHL International (Pvt) Ltd v Clive Madzikanda HH51-10, MAKARAU  J…,  held that section  89 of the Labour Act [Chapter 28:01] means that if the dispute is provided for in the Labour Act [Chapter 28:01], both in terms of the cause of action and the remedy, then the Labour Court has jurisdiction over the matter. Similar sentiments were expressed in National Railways of Zimbabwe Artisans Union and Ors SC08-05, where ZIYAMBI JA, in reviewing a matter involving an application for an interdict which had been taken to the labour court remarked thus;

“Thus, the application and the remedies obtainable thereby must be authorised in the Act or the enactment authorising the application to the Labour Court. Nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo, nor have I been referred to ant enactment authorising the Labour Court to grant such an order.”

The reasoning of the judge is equally applicable here as both remedies are common-law remedies which the Labour Court has no jurisdiction to deal with. See also Tuso v City of Harare 2004 (1) ZLR 1 (HC). The reasoning behind this is that the Labour Court is a creature of statute and its jurisdiction is confined to the four corners of the statute.

The next issue is whether the High Court has jurisdiction to determine an application for vindication of property where the Labour Court is seized with a dispute over the dismissal of the employee.

In Zimtrade v Maylord Makaya HH52-05, MAKARAU J declined to grant a rei vindicatio where an employee had been dismissed and the matter was still pending at the Labour Court. She remarked as follows;

“It is in my further view unacceptable splitting of hairs to separate the determination of the validity of suspension from employment, on one hand, from the determination of whether or not that suspension affects the benefits enjoyed by the employee, on the other hand. The two are interdependent and are both governed by the existing employment relationship obtaining between the two parties. The argument that the employer can vindicate his property at any time does not impress me as the employee can always raise the defence of claim of right to possess the property until he or she is effectively and lawfully disentitled to the property.”

This case was followed in Telecel Zimbabwe (Pvt) Ltd v Naquib Omar HH116-11.

CHIWESHE JP was of the view that the wording of section 89(6) of the Labour Act [Chapter 28:01] and section 89(1) of the Labour Act [Chapter 28:01] empowers the Labour Court to deal with applications of this nature, and, further, that the legislature intended that all labour disputes be dealt with, to the exclusion of any other court, by the Labour Court. In Zimasco (Pvt) Ltd v Farai Maynard Marikano HH235-11, the respondent's contract of employment was terminated and he retained the applicant's vehicle. The applicant filed an application for rei vindicatio with this court. MTSHIYA J declined to exercise his jurisdiction over the matter on the basis that the matter was a labour dispute. The Supreme Court, on appeal, set aside the order of the High Court and remitted the matter to the court for determination on the merits before the same judge. The Supreme Court did not expressly deal with the question whether this court has jurisdiction to entertain a rei vindicatio application where the former employee was dismissed and an appeal is pending in the Labour Court. However, it is apparent that the Supreme Court's position was that the High Court has jurisdiction to deal with applications for rei vindicatio pending litigation in the Labour Court.

In an earlier case of Zimbabwe Broadcasting Holdings v Gomo 2010 (1) ZLR 8 (H), GOWORA J had expressed the view that this type of application can be determined by this court. This case involved an employee who had noted an appeal against her dismissal to the Labour Court. The applicant had, in the interim, applied for return of its property. The court held that an appeal to the Labour Court did not give the employee the right to retain the property she was in possession of in terms of a contract of employment that had been terminated unless she had a recognisable defence to the claim by the applicant. The court remarked as follows;

“Our law, as it currently stands, is to the effect that once an employee has been suspended or dismissed from employment, any benefits extended to such employee from that relationship cease. In Chisipite Schools Trust (Pvt) Ltd v Clark, GUBBAY CJ stated:

'Pending the removal of the suspension, the respondent was not entitled to the continued enjoyment of the benefits comprising the free occupation of the Headmistress's house and the continued use of the motor vehicle. A Labour Relations Officer cannot order the respondent to surrender these particular benefits. Consequently, the applicant being unable to resort to self-help approached the High Court for relief, I consider it was justified in doing so.'”

The Labour Court is a creature of statute and is only empowered to deal with matters brought to it in terms of section 89 of the Labour Act [Chapter 28:01]. This implies that it can only deal with disputes that are provided for in terms of the Labour Act [Chapter 28:01], thus, in terms of both the cause of action and the remedy sought. The rei vindicatio is a common law remedy and is not provided for in terms of the Labour Act [Chapter 28:01]. The High Court can deal with this application as it is a court of inherent jurisdiction and it can do so regardless of the stage at which proceedings at the Labour Court are. This approach is based on the principle that despite an employee's challenge to the dismissal, the employee stands dismissed. What is before me is not a labour dispute. Clearly, the Labour Court was not conferred with the jurisdiction to deal with claims of rei vindication. A rei vindicatio is a common law remedy and the Labour Court has no jurisdiction to deal with common law remedies. MAKARAU J expressed reservations in DHL International (Pvt) Ltd v Clive Madzikanda HH51-10 regarding separation of the determination of validity of suspension from employment and determination of whether a suspension or dismissal affects the benefits enjoyed by the employee. It would be desirable to have a one stop shop for all labour related issues. That simply is not the position at law and will remain so until the legislature has decided otherwise.

I agree with counsel for the first respondent that to the extent that the applicants are seeking to enforce an employment contract, that dimension of the matter takes the form of a labour dispute which should be resolved by the Labour Court in terms of the ouster provisions of section 89(6) of the Labour Act [Chapter 28:01].

The applicant was the respondent's employee. He resigned from employment by letter dated 1 October 2013. The respondent accepted his resignation by letter dated 6 January 2014. Through the same letter, the respondent acknowledged that it owed the applicant US$32,542=07 for salaries, pension refunds, cash in lieu of leave, and medical refunds and promised to pay him as follows;

1. 1st instalment by 7th February 2014 - $10,000-00

2. 2nd instalment by 28 February 2014 - $ 3,757-00

3. 3rd instalment by 31st March 2014 - $ 3,757-00

4. 4th instalment by 30th April 2014 - $ 3,757-00

5. 5th instalment by 31st May 2014 - $ 3,757-00

6. 6th instalment by 30th June 2014 - $ 3,757-00

7. 7th instalment by 31st July 2014 - $ 3,757-00

In addition, the respondent asked the applicant to handover the company vehicle by the 31st December 2013 which was his last working day. The respondent did not pay the applicant as promised. The applicant did not handover the company motor vehicle as directed.

The applicant issued summons claiming the sum of US$32,542=07 from the respondent. The respondent entered appearance to defend. The applicant applied for summary judgment.

The respondent opposed the applicant's application and counter applied for an order that the applicant handover the company vehicle, an Isuzu KB registration number ABD 4174, to the respondent.

At the hearing of the applicant's application for summary judgement and the respondent's counter application, the respondent in the application for summary judgment raised a point in limine challenging the jurisdiction of this court on the basis of section 89(6) as read with section (1) of the Labour Act [Chapter 28.01] which provides as follows;

“(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 applicant submitted that this court has jurisdiction because there is no dispute the Labour Court can hear and determine as the respondent admits and acknowledged its indebtedness to the applicant.

Commending on the respondent's counter application, counsel for the applicant said the applicant is holding the respondent's motor vehicle as a lien for the acknowledged debt.

He is agreeable to this court ordering the respondent to pay the sum owed and his client being ordered to handover the motor vehicle to the respondent. It is therefore clear that both parties have no defence to the other party's claim against them.

There is therefore no dispute to be determined by the Labour Court.

The Labour Court's exclusive jurisdiction does not apply where a party has admitted its indebtedness arising from a labour relationship which amicably ended with the rights of both parties clearly spelt out and admitted by the other.

Section 89(6