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) of the Labour Act applies where the Labour Court has “to hear and determine any application, appeal, or matter referred to in subsection 1.”

In this case, both parties admit their liability to the other leaving no dispute to be determined by the Labour Court.

Where a party acknowledges his indebtedness to the other, this court has jurisdiction to determine whether or not to grant summary judgment.

In the case of Madinda Ndhlovu v Highlanders Football Club HB95-11 CHEDA J, dealing with a similar situation, said;

“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, an acknowledgment 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 summary judgment can be applied for.”

The respondent's point in limine is therefore dismissed.

The applicant's counsel contends that the inherent jurisdiction that the High Court has includes the review of matters from the Labour Court….,.

The applicant's counsel further contends that the High Court, with its inherent jurisdiction, is armed with the requisite powers to review the decisions of the Labour Court on the grounds that he has given.

Section 89(1)(d)(1) of the Labour Act [Chapter 20:01] provides as follows:-

“The Labour Court shall exercise the following functions:

Exercise the same powers of review as would be exercisable by the High Court in respect of Labour matters.”

Section 89(6) of the Labour Act [Chapter 20:01] provides as follows:-

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).

Section 26 of the High Court Act [Chapter 7:06] provides that:-

“Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

Section 27(1)(a) of the High Court Act [Chapter 7:06] provides that:-

“Subject to this Act and any other law, the grounds on which any proceedings or decisions may be brought on review before the High Court shall be absence of jurisdiction on the part of the court, tribunal authority concerned.”

Section 89 of the Labour Act [Chapter 20:01] clearly gives the Labour Court review powers and it takes away, from any other court, the powers to determine or hear matters provided for in that section; powers of review being one of them. On the other hand, Section 26 of the High Court Act [Chapter 7:06] also subjects the High Court powers of review to the provisions of any other law, meaning if another law already provides otherwise, the High Court would not be in a position to exercise the same powers.

Section 26 of the High Court Act [Chapter 7:06] also gives the High Court the power to review the decisions of all inferior courts. 

I am in agreement with the findings in the following cases;

Samudzimu v Dairboard Holdings HH204-10, per CHIWESHE JP, where he found that the provisions of the Labour Act [Chapter 28:01] excluded the jurisdiction of the High Court in areas where the Labour Court has jurisdiction.

In the case of Tuso v City of Harare HH01-04, BHUNU J had occasion to consider the legal import of Section 89(6) of the Labour Act [Chapter 28:01] and he held the view that the High Court could not exercise the powers given to the Labour Court in terms of section 89 of the Labour Act [Chapter 28:01].

In the case of Gwindingwi and Another HH168-11, MATHONSI J alluded to the effect of section 89(6) of the Labour Act [Chapter 28:01] and he stated that 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. He further went on to state that the High Court does not possess the machinery to jealously guard its inherent jurisdiction where the legislature has specifically taken it away. 

I cannot agree more with this view.

In the case of Medical Investments Ltd v Pedzisayi HH26-10, MAKARAU JP…, found that the effect of section 89(6) of the Labour Act [Chapter 28:01] is that the Labour Court has jurisdiction in all matters where the cause of action and the remedy are provided for in the Labour Act.

It is my considered view that the applicant should have proceeded either in terms of Section 92C of the Labour Act [Chapter 28:01] or section 89(1)(d)(1) of the Labour Act [Chapter 28:01] and not to approach this court with a matter that the Labour Court could clearly handle yet section 89(6) of the Labour Act [Chapter 28:01] has stripped this court of its review powers in so far as all the matters provided for by Section 89 of the Labour Act [Chapter 28:01] are concerned.

This is an application for condonation for the late noting of an appeal against the decision of the Commissioner General of Police (the 1^st respondent herein)….,.

The applicant was convicted in terms of the Police Act [Chapter 11:10] and was sentenced to pay a fine of $10= by a single officer. He appealed to the Commissioner General of Police in terms of the Police Act [Chapter 11:10] and his appeal was dismissed. He filed an application for review in HB153-11 and the application was dismissed by NDOU J…,. The applicant then noted an appeal which is now out of time hence the need to apply for condonation.

The problem that faces the applicant herein is the propriety of the appeal itself. Section 34(1) of the High Court Act [Chapter 7:06] provides that:-

“The High Court shall have jurisdiction to hear and determine an appeal in any criminal case from the judgment of any court or tribunal from which, in terms of any enactment, an appeal lies to the High Court.”

There is, however, no provision in the Police Act [Chapter 11:10] that stipulates that an appeal against the decision of a single officer or of the Commissioner General lies with the High Court.

In terms of section 51 of the Police Act [Chapter 11:10];

“A member who is aggrieved by any order in terms of section 48 or 50 may appeal to the Police Service Commission against the order within the time and the manner prescribed, and the order shall not be executed until the decision of the Commission has been given.”

The court a quo made a finding that the appellant had proceeded to address the merits of the appeal before it despite denying a relationship with the respondents.

The court concluded that the citation of the appellant and PG Timbers in this case was a mere technicality. It opined that it was an error that could be corrected by an application for amendment of the papers.

Counsel for the appellant argued that the corporate veil could not have been uplifted at this stage of the proceedings.

I agree.

The effect of the order of 2 August 2013 is to uplift the corporate veil and turn the appellant into the employer of the respondents. The Labour Court is a creature of statute and can only do that which it is empowered to do by the Labour Act [Chapter 28:01].

It has no jurisdiction to uplift the corporate veil.

Its order for the amendment of the employer in casu to reflect the appellant was in effect a decision on an enquiry into which of the two entities was the respondents' employer. That enquiry is an irregularity on the grounds of absence of jurisdiction.

Consequently, the order cannot stand.

As already stated…, this court has the power to exercise the same review powers as the High Court.

Consequently, if it comes to the notice of this court that an irregularity has occurred in any proceedings or in the making of an order, it is appropriate for this court to review the proceedings or decision in question.

The failure to determine the point in limine, and the order granted pursuant to that failure, constitute gross irregularities warranting interference by this court. As a consequence, the order amending the citation of the parties and substituting the appellant for PG Timbers cannot stand as it is based on a nullity. It follows therefore that it must be set aside. The orders dated 2 August 2013 and 11 November 2013, respectively, must be set aside.

In the premises, the appeal succeeds and an order will issue as follows:

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo, under Case No. LC/H/413/12, dated 2 August 2013, be and is hereby set aside.

3. The matter is remitted to the court a quo for determination.

4. The judgment of the court a quo, under Case No. LC/H/413/12, dated 11 November 2013, be and is hereby set aside and substituted with the following:

“The chamber application for the amendment of the citation of the parties to the dispute is struck off the roll with no order as to costs.”

Now that section 171(1)(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters, which had been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01], there is nothing stopping me from exercising jurisdiction.

Section 171(1)(a) of the new Constitution provides:-

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt that section 171(1)(a) overrides section 89(6) of the Labour Act [Chapter 28:01].

What this means is that by clear Constitutional provision, this court has original jurisdiction over all matters, including those of a labour nature, where, prior to the new Constitutional order, the Labour Court enjoyed exclusivity.

It is trite that the High Court is a superior court of inherent jurisdiction and that there is a presumption against the ouster of its jurisdiction unless this is clearly intended by the legislature. Thus, any statutory or contractual provision that purports to oust its jurisdiction must be restrictively interpreted....,.

Jurisdictional Impact of New Constitution

In light of the foregoing conclusion, and with deference to the twin doctrines of Constitutional ripeness and avoidance, I deem it unnecessary and somewhat academic to delve into the broader question as to the possible supersession of the exclusive jurisdiction of the Labour Court with the advent of the current Constitution.

Although this Constitutional dimension is obviously important, it seems preferable to leave it for determination at a more opportune time and by a larger bench - possibly the Constitutional Court itself.

Section 3 of the Labour Act confers jurisdiction on the Act over all employees except those it expressly excludes. It reads:

“Application of Act

(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution….,.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

(3) This Act shall not apply to or in respect of -

(a) Members of a disciplined force of the State; or

(b) Members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

(c) Such other employees of the State as the President may designate by statutory instrument.”

Upon a proper reading of the above section, it is self-evident that the Labour Act applies to all employees except those in categories that are expressly excluded therein. These are:

1. Those whose conditions of employment are otherwise provided for in the Constitution.

2. Members of the Public Service as read with section 26.

3. Members of a disciplinary force of the State.

4. Any other employee designated by the President in a statutory instrument….,.

It is plain that the respondent, in the court a quo, dismally failed to prove, on a balance of probabilities, that he is one of those employees expressly excluded from the application of the Labour Act. His argument was that the Labour Act does not apply to him because his contract of employment is exclusively governed by the Urban Councils Act.

That line of argument is defective and unsustainable at law because the Urban Councils Act is subservient to the Labour Act. In terms of section 2A of the Labour Act, the Legislator has decreed it to prevail over any other enactment inconsistent with it.

What this means is that whatever the provisions of the Urban Councils Act might be, they cannot exclude the application of the Labour Act to any employee. It is only the Constitution and the President, by statutory instrument, that can override the application of the Act over any employee.

While the cases decided before the advent of the Labour Amendment Act, 2005 were correct at that time in holding that the Labour Act was inapplicable to senior urban council employees, those judgments have since been overtaken by events.

For that reason, since the promulgation of the 2005 Amendment they have ceased to be valid and binding going forward.

There is absolutely no merit in this application for rescission of judgment, an application informed more by a complete lack of understanding of the role of this court in the registration of arbitral awards made in terms of the Labour Act [Chapter 28:01], an Act of Parliament which, in terms of section 89(6), has sought to oust the jurisdiction of this court in all matters legal but of a labour nature.

This is as it should be because the Labour Court is the special court set up to deal with such matters but still has to be empowered to enforce decisions coming out of it and its auxiliary tribunals. Of course, section 171(1)(a) of the new Constitution, which overrides that Act, has restored this court's jurisdiction in all matters civil and criminal.

In challenging the jurisdiction of this court over the matter, the first respondent relied on section 89(6) of the Labour Act [Chapter 28:01] (the Labour Act) 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 in subs (1).”

Subsection 1 of section 89 of the Labour Act 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 exercised 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.”

Given the above provisions of the law, which grant the Labour Court the same powers of review as the High Court in labour matters, (i.e. section 89(1)(d1) above), counsel for the respondents strongly argued that it was therefore not the business of this court to deal with this application.

In response to the respondents' contention, counsel for the applicant submitted that although employment-related, the decision was administrative in nature and delivered by an administrative authority i.e. the first respondent. He said the decision was not necessarily based on contract. To that end, he relied on the following definition of “administrative action” given under section 2(1) of the Administration of Justice Act [Chapter 10:28] (the Act):-

“Administrative action means an action taken or decision made by an administrative authority.”

The same section of the Act defines administrative authority as follows:-

“administrative authority means any person who is –

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b) A committee appointed by or in terms of any enactment; or

(c) A Minister or Deputy Minister of the State; or

(d) Any other person or body authorised by any enactment to exercise or perform any administrative power or duty.”

The first respondent is an officer of a parastatal who performed an administrative action.

Counsel for the applicant then argued that the High Court had inherent jurisdiction to deal with the matter. He said the Labour Court lacked the jurisdiction which would enable it to issue a declarator leading to the setting aside of the first respondent's decision.

The issue of jurisdiction being raised by the respondents has been raised before in similar matters. However, it cannot be argued outside the current provision in section 171 of the Constitution of the Republic of Zimbabwe as read together with section 13 of the High Court Act [Chapter 7:06] (the High Court Act), which states that:

“The High Court shall have full original civil jurisdiction over all persons and all matters within Zimbabwe.”

Section 171 of the Constitution of Zimbabwe reinforces that jurisdiction by stating that:

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Given the Constitutional provision, it means that no other Act of parliament can oust the jurisdiction of the High Court in all civil matters in Zimbabwe. Accordingly, except for cases expressly reserved for the Constitutional and Supreme Courts, the High Court can, in terms of our law, deal with all civil matters, notwithstanding the fact that they may be statutorily reserved for the Labour Court or any other lower court (i.e. concurrent jurisdiction exists). It would, in my view, be unconstitutional for the High Court to close its doors to litigants with respect to any civil matters.

In view of the foregoing, I am unable to uphold the respondents' point in limine regarding jurisdiction. This court can entertain the application.

Furthermore, apart from the Constitutional provision quoted above, in U-Tow Trailers (Pvt) Ltd v City of Harare & Anor 2009 (2) ZLR 259 (H) MAKARAU J…, in making reference to the Administrative Justice Act, said:-

“Section 4 of the Act provides that any person who is aggrieved by the failure of an administrative authority to comply with section 3 therein may apply to the High Court for relief. It is common cause that the applicant filed this application challenging the decision of the first respondent summarily to cancel the lease agreement. It filed a court application in terms of the High Court Rules. While the application does not make any reference to the provisions of the Act, in my view, it makes allegations that fall squarely within the provisions of the Act. I was satisfied before I referred the question to the parties for further argument that the allegations and contentions made by the applicant in its court application fell within the purview of the Act even if the Act was not specifically invoked. In my view, generally, it is not necessary for an applicant specifically to plead the law that it seeks to rely on as long as the necessary averments are made therein to sustain a cause of action under the applicable law unless the law under which he or she is proceeding requires that certain averments be specifically pleaded. The court is not a slave to the form of the law. It is always a slave to justice whom it must always serve.

For the avoidance of doubt, if I have erred in allowing the applicant to bring a deformed application before the court and the correct position is that it was necessary for the applicant, specifically, to invoke the provisions of the Act, I will condone that oversight in terms of Rule 4C of the High Court Rules, 1971.

As correctly pointed out by the first respondent, this is not an application for review. It is an application for the setting aside of an administrative decision on the basis that it was not arrived at fairly and thus, at law, contravenes the Act. In view of the fact that the applicant succeeds on a matter that it did not specifically raise in its initial heads of argument, I will not punish the first respondent with an award of costs. The same does not apply to the second respondent.”

In view of the above, I am inclined to agree with the applicant that in the review process what he seeks is the setting aside of an administrative decision/action. That challenge, in terms of section 4 of the Administrative Justice Act, can be placed before this court. The remedy sought and the reasons for it are clear. Accordingly, notwithstanding the fact that the applicant may not have specifically mentioned the statute relied on in placing the matter before the court, the cause of action is clear and can be entertained by this court.

(i) The first point in limine was that the case was purely a labour dispute.

To emphasize that point reference was made to the rule nisi from the South African Labour Court. It was then argued that the applicant, having decided to litigate in Zimbabwe, could only approach the Labour Court, allegedly being the only court with exclusive jurisdiction over the matter. It was argued that if the Minister had declined to issue the show cause order, then the proper remedy for the applicant was an appeal to the Labour Court and not an application to this court. I was urged to refuse to hear the matter because the applicant had allegedly failed to exhaust its domestic remedies.

I was satisfied that the first point in limine was misconceived.

The relief sought by the applicant was based on the rei vindicatio. The applicant was the owner of the property that was in the unlawful possession of the respondents. The owner of a thing who has been deprived of possession against his will is entitled to claim it wherever he finds it and from whomsoever has got it; Chetty v Naidoo 1974 (3) 13 (A),…,. All that he has to prove is that he is the owner; that his thing is in the defendant's possession; and that it is still in existence and clearly identifiable; SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…, and the cases cited there.

That is a common law remedy.

The Labour Court is a creature of statute. It has no power to do anything outside the four corners of its enabling statute. In section 89, the Labour Act, being the enabling statute, prescribes the functions of that court. They do not include the power to deal with a vindicatory action. The urgent chamber application was not about resolving the labour dispute between the parties.

Legal practitioners, have, with regrettable intransigence, ignored the relevant law, at their own and their client's peril, or actively exploited this seemingly grey area, for a very long time.

While it is correct that the High Court has inherent power to regulate its own process, there is nothing in the High Court Act [Chapter 7: 06] or the High Court Rules 1971, which justifies usurping the powers of the Labour Court, in those instances where the Labour Act [Chapter 28:01] provides a suitable, viable and satisfactory remedy.

It is my view that the mere registration of Labour Court orders by this court, for purposes of execution, does not automatically remove labour matters from the realm of the Labour Act [Chapter 28:01] and thrust them under the auspices of this court's inherent jurisdiction. The time has come for the Legislature to take away the power of lawyers to exploit this apparent uncertainty in the law.

In my view, the solution is simple - give the Labour Court its own enforcement mechanism.

Section 14 of the High Court Act (Chapter 7:06) provides as follows:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

In Johnsen v AFC 1995 (1) ZLR 65 (H) it was held as follows:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment the court. The interest must concern an existing, future or contingent right…,.”

I am satisfied that the circumstances of this particular application would warrant the granting of a declarator in the exercise of my judicial discretion.

Tied to the issue of res judicata was the respondents' argument that except for applications for the registration of arbitral awards for enforcement purposes, in terms of section 98(14) of the Labour Act, this court lacks jurisdiction in all other employment matters as they are the preserve of the Labour Court in terms of the Labour Act.

Counsel for the respondents submitted that in terms of Rule 34 of the Labour Court Rules, S.I.59 of 2006, the Labour Court or a President sitting in chambers may, on application, order a stay of execution of a decision, order or determination that has been registered in terms of section 92B(3) of the Labour Act.

Section 92B(3) of the Labour Act entitles a party to whom a decision, order or determination by the Labour Court relates, to register it for enforcement purposes with either the Magistrate's Court or the High Court, depending on the jurisdictional limits. The state of the law on this aspect is obviously unsatisfactory in that, among other things, the Labour Court, whose status the Legislature undoubtedly elevated to that of a court of first instance in practically all labour matters, withheld from it the power to enforce its own judgments. Successful litigants in that court and the other judicial structures created under it have to be shunted from that court to this court or the Magistrates' Court for the purposes of enforcing any orders or decisions made in their favour. Be that as it may, and in spite of the provisions of Rule 34 of the Labour Court Rules, which, incidentally, is confined to decisions of the Labour Court itself as opposed to that of an arbitrator as was the case in the present matter, it is now settled law that the superior courts have the power to regulate their own processes.

Section 98(15) of the Labour Act provides that where an arbitral award has been registered with the Magistrates' Court or this court, it shall have, for enforcement purposes, the effect of a civil judgment of the appropriate court.

This court has an inherent jurisdiction to order a stay of execution of its judgment. There is nothing in the Labour Act or the regulations made under it that has ousted that jurisdiction. The issue was put beyond doubt in the case of Dhlodhlo v Deputy Sheriff, Marondera & Ors 2011 (1) ZLR 416 (H). At pp 422–423 GOWORA J…, had this to say:

“The contention by the applicant is that, as a result of the registration, the Labour Court ceases to have jurisdiction over the judgment and it cannot control, vary, set aside or rescind the judgment. I think this is a correct exposition of the law. The effect of the registration with this court is that only the High Court, barring an appeal to the Supreme Court, can interfere with the judgment or its execution. This is because, the High Court, being a court of superior jurisdiction, has the inherent power to regulate its own proceedings…,.

Clearly, the import of Rule 34(1) is to permit the stay of any judgment registered with a court, possibly with inferior jurisdiction to it. I say 'possibly' because this aspect was not argued before me as that was not the situation confronting the parties. I am therefore not in a position to state with certainty that the rule permits this. It is an issue that would have to be argued before a court can pronounce on it. What I can state is that the rule cannot be read as giving the Labour Court the power to regulate proceedings of the High Court. To the extent that it appears to do so, the rule is, in my view, in conflict with the Act and the limited jurisdiction granted to the court in terms of section 89 thereof.

It is trite that a judicial officer cannot vary or set aside a judgment or order issued by an officer of parallel jurisdiction, except in the case of a rescission of an order granted in default, or in restricted circumstances in accordance with the provisions of Rule 449 of the Rules of this court.

As the applicant rightly argues, if a judge cannot vary or alter aside an order issued by a judge with parallel jurisdiction (see Parker v Parker 1985 (2) ZLR 79 (H)...,.) how can it be possible for a judge from a lower court [to] have the power to stay an order issued by a court of superior jurisdiction?

I cannot conceive of a situation where a court can lawfully interfere with execution or suspension of a court order issued by [a] court of superior jurisdiction to its own.

Execution is a process of the court and every court has the power to control its own process subject to the rules of court. In the High Court that power is inherent. See Strime v Strime 1983 (4) SA 850 (C) and Stumbles & Rowe v Mattinson 1989 (1) ZLR 172 (H).

The courts in this country have all been imbued with the power to regulate their own proceedings and therefore no other court can legally interfere with those proceedings, unless in an appeal or a review of the proceedings of that other, which, in any case, would have to be a court of inferior jurisdiction.

In casu, the Labour Court is not such a court as can review or subject to appeal the proceedings of the High Court and it ought not to have stayed the judgment of this court, as that is not within its jurisdictional power.”

The Supreme Court, in the case of Ritenote Printers (Pvt) Ltd v A Adam & Co Anor 2011 (1) ZLR 521 (S), confirmed…, the doctrine of the inherent jurisdiction enjoyed by the superior courts to regulate their own processes.

Therefore, I dismissed the point in limine.

Section 89 of the Labour Act prescribes the functions, powers and jurisdiction of the Labour Court. In particular, section 89(1), in its relevant portions, provides that:

“(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;

(b)…,.;

(c)…,.;

(d)…,.;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.

[Paragraph inserted by section 29 of Act 7 of 2005]”…,.

GARWE JA, in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S)…, explained the import of section 89(1) (d1) of the Labour Act as inserted by Act No.7 of 2005 as follows:

“The above provisions are, in my view, clear and unambiguous. In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters. The jurisdiction to exercise these powers of review is in addition, and not subject, to the power the court has to hear and determine applications in terms of the Act….,. The suggestion…, that the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters is, in my considered view, incorrect and inconsistent with the provisions of the Act. I say this for two reasons.

(a) Firstly, the Act is clear that 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 section 89(1) of the Act – see section 89(6) of the Act….,.

(b) Secondly, it is clear that the interpretation given relies on a superficial reading of the wording of section 89(1)(d) [sic]. The section should be understood to mean 'the same powers of review in respect of labour matters as would be exercisable by the High Court', or, alternatively, 'the same powers of review, as would be exercisable by the High Court, in respect of labour matters'. Any other reading of the paragraph would clearly result in an absurdity.”

The above interpretation by the court in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) was recently applied by PATEL JA in Lungu & Ors v Reserve Bank of Zimbabwe SC01-17.

In Lungu & Ors v Reserve Bank of Zimbabwe SC01-17, the appellants challenged the Labour Court's jurisdiction to review the decision of an arbitrator. The appellants' argument is succinctly captured at pages 4 to 5 of the cyclostyled judgment as follows:

“In his heads of argument, and at the hearing of the appeal, Adv. Mpofu, for the appellants, embarked upon an excursus outside the stated grounds of appeal into the review jurisdiction of the Labour Court. He submits that section 89(1)(d1) of the Labour Act [Chapter 28:01] limits that court to the same review powers as are exercisable by the High Court. Therefore, since the review of arbitral awards cannot be instituted in terms of the High Court Act [Chapter 7:06] but only under the Model Law scheduled to the Arbitration Act [Chapter 7:15], it follows that the Labour Court, being a creature of statute and having no inherent jurisdiction, cannot review the decisions of arbitrators. Adv. Mpofu relies for this proposition upon the decisions in Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S) and National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H).

In the Catering Employers Association case, it was held that Article 34(2) of the Model Law sets out the sole grounds on which the High Court may set aside an arbitral award. The court cannot therefore rely on the grounds set out in section 27 of the High Court Act to set aside an arbitral award on review. This position was adopted in the National Social Security Authority case on the somewhat questionable basis that the general power to review proceedings conferred by section 26 of the High Court Act does not extend to arbitral awards because an arbitrator does not fall into any of the stipulated categories, i.e. inferior courts of justice, tribunals or administrative authorities. In any event, it was re-affirmed that the narrow grounds on which an arbitral award may be set aside are set out in Article 34 of the Model Law, and recourse to the courts against an award may only be made by way of an application under that Article. The legislature had, in enacting the Model Law, so it was held, deprived the High Court of its inherent jurisdiction to review the conduct of an arbitrator.”

PATEL JA, in Lungu & Ors v Reserve Bank of Zimbabwe SC01-17, dismissed the appellants' argument where, at pages 6 to 7 of the cyclostyled judgment, he preferred the interpretation in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) by stating:

“I fully endorse the above reasoning. The only possible meaning and effect to be ascribed to section 89(1)(d1) of the Labour Act is that the Labour Court has the same power to review any inferior proceedings, in labour matters, on the same grounds of review as may be invoked by the High Court in the exercise of its powers of review in relation to other matters not embraced by the Labour Act. The interpretation propounded by Adv. Mpofu is not only specious in that it divests the Labour Court of the full breadth of its oversight in labour matters but also absurd in that any procedural or other irregularity committed by an arbitrator would be rendered wholly un-reviewable, whether by the Labour Court or the High Court. That surely could not have been the intention of Parliament in the enactment of section 89 of the Labour Act.”

Section 89(6) of the Labour Act [Chapter 28:01] has ousted the jurisdiction of all other courts, in the first instance, to hear and determine any application, appeal or matter falling under the jurisdiction of the Labour Court.

The present dispute clearly falls under that ouster provision as it should be determined by the Labour Court. No amount of flummery with the form of the application and the phrase “declaratory order” will change the complexion of this matter in substance. It remains a labour dispute which should be determined by the Labour Court.

The legislature, in its wisdom, has seen it fit that such matters should be reserved for the Labour Court. Litigants who continue to ignore that legislation, by approaching this court, are clearly trying to defeat the intention of the legislature. It matters not that a litigant comes to this court seeking a declaration of rights, if such rights can and should be determined in the Labour Court, this court will decline jurisdiction. One cannot fight against the future, for the future, as pronounced by the legislature, is that such matters should not be entertained by this court: Matongo v Midlands State University HH174-13; Jambwa v Grain Marketing Board HH124-13.

At the commencement of the trial in this matter, I mero motu raised the issue of whether or not the jurisdiction of this court has not been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] (“the Act”) in matters brought before me for determination.

While this court has inherent jurisdiction and may do anything which the law does not forbid, the general fundamental principle of inherent jurisdiction is subject to particular derogation: HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 3^rd ed, Juta & Co Ltd…,.

This court cannot exercise jurisdiction where such jurisdiction is specifically ousted by statute….,.

The plaintiff was employed by the defendant as a Director of the Graduate School of Business Leadership, but, following disciplinary proceedings conducted in terms of the University's Code of Conduct he was dismissed from employment. He appealed to the Labour Court against the dismissal, but, in a judgment handed down on 20 June 2011, the Labour Court dismissed the appeal.

The plaintiff then instituted summons action in this court against the defendant for payment of a total of US$120,643=28 broken down as $19,407=70 as net salary; $9,850=27 cash in lieu of ordinary leave; $42,531=21 cash in lieu of contract leave; and $48,854=10 cash in lieu of sabbatical leave.

In response to my query on jurisdiction, counsel for the plaintiff submitted something to the effect that the plaintiff was not bringing these proceedings to this court as a court of first instance but as a court reposed with inherent jurisdiction to determine matters which should have been determined by the Labour Court but which that court omitted to deal with. He could not say, assuming the matter was not coming to me as a court of first instance, in what form the matter had come especially in view of the fact that it was instituted by way of summons commencing action.

Counsel for the plaintiff submitted that the plaintiff had exhausted domestic remedies available to him in terms of the Code of Conduct and the Labour Act and was therefore entitled to make an approach to this court for quantification of his terminal benefits, which quantification is not provided for in the Labour Act.

He contradicted himself in submitting that when the Labour Court upheld the plaintiff's dismissal, it was obliged, in terms of section 89(2)(c) of the Labour Act, to make a finding in respect of the issues that have been placed before me, but the jurisdiction of the Labour Court, as set out in section 89(1), does not include the quantification of terminal benefits.

According to counsel for the plaintiff, where the Labour Court has failed to determine terminal benefits due to an employee, such employee is at liberty to approach this court seeking quantification because the Labour Court would be functus officio, and, therefore, unable to have a second bite at the cherry as it were.

The submissions made on behalf of the plaintiff regarding the existence or otherwise of jurisdiction are mind-boggling to say the least. The strain in one's mind becomes hazardous when the plaintiff's counsel, by the same breath, argues that, procedurally, the Labour Court is the ultimate court where the issues forming the subject of this dispute should be determined. It becomes extremely impossible to understand how the plaintiff could insist that this court should exercise jurisdiction.

Counsel for the defendant submitted that in order to arrive at a decision as to whether the amounts claimed by the plaintiff in respect of net salary and cash in lieu of ordinary leave this court has to interpret the specific provisions of the parties' contact of employment. In order to quantify what the plaintiff is claiming as cash in lieu of contract and sabbatical leave this court must engage in the interpretation of the “Midlands State University: Terms and Conditions of Service”. For those reasons, the dispute between the parties is a labour dispute where the Labour Court enjoys exclusive jurisdiction.

Counsel for the defendant made reference to section 13(1) of the Labour Act which deals with wages and benefits upon termination to illustrate the point that this is a labour dispute. It provides:-

“13 Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, whether any person -

(a) Is dismissed from employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(c) Is incapacitated from performing his work; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacity or death, as the case may be, including benefits in respect to any outstanding vacation and notice period, medical aid, social security and any pension and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.”

It is therefore not in doubt that payment of wages and benefits, upon termination of an employment contract, is provided for in the Labour Act. Wages and benefits are entitlements of an employee in terms of the Labour Act.

That the Labour Court is a creature of statute constituted as a special court, in terms of section 84 of the Labour Act, to adjudicate over labour relations, is beyond doubt. Its powers and functions must be exercised in accordance with the four corners of the statute.

Section 89(1) of the Labour Act goes on to state:-

“The Labour Court shall exercise the following functions:-

(a) Hearing and determining applications and appeals in terms of this Act; 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 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.”

Subsection (2)(c) of section 89 gives the Labour Court the power, in the exercise of its functions, to order back pay and compensation of an employee in the event of an unfair labour practice among other powers. It is instructive therefore to make reference to section 89(6) of the Labour Act 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)”.

This court has, in a number of cases, interpreted that ouster provision to mean that the Labour Court has jurisdiction in all matters where the cause of action and remedy for that are provided for in the Labour Act; Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H)…,.; DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…,.; Tuso v City of Harare 2004 (1) ZLR (H); Moyo v Gwindingwi N.O. & Anor HB168-11…,.; Jambwa v GMB HH124-13…,.

I am in agreement with the postulation of MAKARAU JP…, in Medical Investments Ltd v Pedzisai 2010 (1) ZLR 111 (H)…, that:

“In interpreting these two sections of the Act (i.e section 89(1) and section 89(6)), this court has, in the authorities I have cited above, held that the Labour Court has exclusive jurisdiction in all applications and matters that are not only defined but are determinable in terms of the Act. In other words, the Labour Court has jurisdiction in all matters where the cause of action and the remedy for that cause of action are all provided for in the Act.”

I have cited the provisions of section 13 of the Labour Act which entitle an employee to wages and benefits upon termination of the employment contract. In the event of a breach of those provisions the employee has remedies, including criminal prosecution against the employer. The employee may also bring an action in the Labour Court which, in terms of section 89(1), has power to hear and determine any application in terms of the Labour Act. In terms of section 89(2)(c) it can also make an order for back pay and other damages to be awarded to an employee.

Quite how these changes in the law to provide for the ouster of the jurisdiction of any other court, including this court, in those matters which fall under the purview of the Labour Court escaped the gaze of the plaintiff and his counsel is not easy to understand. What is certain, however, is that this court does not have jurisdiction to determine a dispute involving payment of wages and cash in lieu of any form of leave which are clearly provided for in the Labour Act, and, as such, should be determined by the Labour Court.

That is the present and indeed the future.

For counsel for the plaintiff to submit that I should exercise jurisdiction against this background is untenable. As they say; “You cannot fight against the future.”

I therefore decline jurisdiction as no doubt the plaintiff has taken a wrong turn in making an approach to this court when he should have had his matter determined by the Labour Court. After all, that court enjoys exclusivity.

In the result, the plaintiff's claim is hereby dismissed with costs.

The Labour Court does not have jurisdiction to grant a declaratory order which is granted in terms of section 14 of the High Court Act [Chapter 7:06] as follows:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

In the case of Agribank v Machingaifa 2008 (1) ZLR 244 (S) the court said that:

“The High Court's inherent jurisdiction to grant declaratory orders in labour matters has not been ousted. The only issue for determination was whether the case was a proper one for the exercise of the discretion under section 14 of the High Court Act. The fact that the dispute could well have been determined in the Labour Court was not the determining factor.”

In Mushoriwa v Zimbank 2008 (1) ZLR 125 (H) it was held that:

“The power to issue a declaratory order is specific to the High Court. The Labour Court, unlike the High Court, has not been specifically empowered to issue declaratory orders and cannot create such relief or the procedure for granting such relief as it is not a court of inherent jurisdiction. Consequently, if the relief that an applicant seeks is in the nature of a declaratory order, the High Court would have original jurisdiction as that power has not been specifically ousted by statute.”

It is trite that the Labour Court does not have power to grant interdictory relief. See NRZ v Zimbabwe Railway Artisans Union & Ors 2005 (1) ZLR 341 (S).

This is an urgent chamber application for a mandatory interdict in which the following order is sought on an interim basis;-

That the respondent be and is hereby ordered to furnish the applicant with the following information within forty-eight hours of this order being granted;

1. A schedule detailing the applicant's back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent's salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which the applicant shall resume his duties.

4. The date of payment of the applicant's back-pay and benefits.

5. The dates on and manner in which the applicant's salaries shall be paid from the 1^st of February 2016 until the applicant ceases to be entitled to a salary.

The final order sought is for the respondent to show cause why a final order should not be made on the following terms;-

The respondent be and is hereby ordered;

6. To immediately furnish the applicant with all information regarding and relevant to the applicant's employment contract and conditions of service when requested to do so.

7. To fully comply with the judgments of the Labour Court handed down on 6 February 2008 and 22 January 2016 within two weeks of this order being granted failing which the Director General (Chief Executive Officer) of the respondent shall be committed to gaol for a period of three months for contempt of court.

8. To pay costs of suit on a legal practitioner and client scale.

The applicant is the holder of a doctorate in Engineering Science and the respondent (SIRDAC) is a university situated in Hatcliffe, Harare. The background to this application, as set out in the founding affidavit, is that the applicant was employed by the respondent from the year 2000 to 22 March 2005 as the director of the Building Technology Institute (BTI) of the respondent. The Labour Court made a finding, on the 6^th of February 2008, that the respondent's dismissal of the applicant was unlawful. The respondent was ordered to reinstate the applicant with effect from 22 March 2005, the date of dismissal, without loss of salary or benefits.

The applicant alleges that the respondent has failed to comply with this judgment by failing to reinstate him or to pay him his full salary or benefits, or even to pay him damages in lieu of reinstatement in the alternative.

The applicant instituted proceedings in HC4544-08 for an order of contempt to be made against the respondent's Director General. The respondent, in response to that application, purported to 'reinstate' the applicant by way of a letter dated 26 September 2008. The letter was delivered to the applicant on the 7^th of October 2008.

It is common cause that, despite the letter of re-instatement, the respondent has not paid the applicant his salary or benefits, and that, the applicant has not re-joined the respondent's staff to date.

On 26 June 2009, the respondent terminated the applicant's employment by way of a letter. The applicant challenged this termination by way of an application for review before the Labour Court, which granted judgment in his favour on the 22^nd of January 2016…,. That judgment was done by two Labour Court Judges. They alluded to the judgment done by the same court on 6 February 2008 in which an order was made that the applicant be reinstated with full benefits, or, alternatively, be paid damages in lieu of reinstatement. The Labour Court found that the parties should go back to the original order of 6 February 2008 and allowed the application for review, setting aside the decision of the disciplinary committee of 26 June 2009.

The applicant requires information pertaining to his salary arrears in order to prepare an application for damages in lieu of reinstatement. This information is in the possession of the respondent who is being un-cooperative. The applicant is afraid that the respondent will continue to ignore the orders of the Labour Court with impunity. Letters written to the respondent on 22 January 2016 and 3 February 2016 have gone un-answered.

The applicant is of the view that he has no other remedy than to approach this court, on an urgent basis, because he is wallowing in poverty whilst the respondent remains in contempt of the Labour Court orders.

At the hearing of the matter, the respondent took the stance that this matter was not urgent because the requirements of urgency were not met on the papers, and that the application was devoid of merit because the requirements of a mandatory interdict were again not established….,.

It is my considered view that the question of jurisdiction ought to be settled before a decision is made as to whether or not the applicants satisfied the requirements of urgency and then the merits of the matter can be ventilated….,.

It is trite that only this court can grant a mandatory interdict. Such an interdict will compel the respondent to supply the information required by the applicant in order to utilize his remedy in the Labour Court, that of seeking payment of arrear salaries and damages in lieu of reinstatement. See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & Ors SC08-05, where the following guidance was given;-

“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, 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 easily be 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.”…,.

This case was decided in 2005, before the advent of the current Constitution, and it would be interesting to see if the Supreme Court's guidance remains the same when the provisions of section 171(1)(a) are taken into consideration.

For purposes of determining whether an application for an interdict ought to be dealt with by this court because it is a common law remedy which the Labour Court has no power to grant, this case is indeed instructive. See also DHL International (Private) Limited v Madzikanda HH51-10; Surface Investments (Private) Limited v Maurice Chinyani HH295-14.

Section 10 of Part 4 of the Sixth Schedule of the current Constitution (saving and transitional provisions) provides that all existing laws will continue in force but must be construed in conformity with the Constitution.

In my view, this means that any inconsistency between the current Constitution and an existing law must be resolved in favour of conformity with the Constitution.

This renders section 89(6) of the Labour Act void to the extent of its inconsistency with section 171(1)(a) of the current Constitution. The inescapable conclusion is that the High Court now has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance. It is up to the High Court to decline to exercise that concurrent jurisdiction as a way of preserving and respecting the specialized nature of the Labour Court until the Legislature harmonises section 89(6) of the Labour Act with section 171(1)(a) of the current Constitution.

It is my view that as things currently stand the argument that the High Court has no jurisdiction to hear purely labour matters, at first instance, is not sustainable. It is my considered view that the High Court, being a creature of inherent jurisdiction, by implication, can decline to exercise its jurisdiction in favor of a litigant for any reason that it deems fit in the interests of justice. I see no reason why jurisdiction over purely labour matters, at first instance, in some circumstances, cannot be declined on the basis that there is a specialized court which exercises concurrent jurisdiction and that is where the litigant ought to go. In cases where litigation has already been commenced initially before the Labour Court, it is undesirable for this court to exercise jurisdiction over the same matter as this will promote forum shopping and will be detrimental to the administration of justice in the long run….,.

This is an urgent chamber application for a mandatory interdict…,.

It was agreed, by consent, that the parties file heads of argument to buttress their polarized position when a preliminary point was taken that this court lacked the requisite jurisdiction to deal with a purely labour matter….,.

The applicant filed its heads of argument on the 11^th of February 2016 and the respondent's heads were filed on 18 February 2016.

The question that arose during the course of argument was whether, in terms of section 171(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013, the High Court now has jurisdiction as a court of first instance to deal with purely labour matters. The applicant's contention was that this was not a purely labour matter, the application was for a mandatory interdict which the Labour Court cannot grant…,.

Section 171(1)(a) of the current Constitution provides that;-

“171 Jurisdiction of High Court

(1) The High Court -

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b) Has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;

(c)…,.

(d)…,.”

Section 171(2) of the Constitution stipulates that;-

“(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,.

(4)…,.”

The wording of section 171(1)(a) has given rise to a new school of thought that these provisions of the current Constitution have restored the jurisdiction of the High Court over purely labour matters at first instance. Section 89(6) of the Labour Act [Chapter 28:01] provides 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 provisions of section 172(2) of the current Constitution provide, in relation to the jurisdiction of the Labour Court;-

“172 Labour Court

(1)…,.

(a)…,.

(b)…,.

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

(3)…,.”

Section 172(2) confers such jurisdiction on the Labour Court as may be found in the Labour Act.

The current Labour Act, to the extent that section 89(6) is now inconsistent with section 171(1)a) of the Constitution, requires express re-alignment with the Constitution by the Legislature. While we wait for its re-alignment with the Constitution, the Labour Act no longer confers exclusive jurisdiction on the Labour Court over purely labour matters at first instance.

The High Court, having always had inherent jurisdiction which had been expressly ousted by section 89(6) of the Labour Act from dealing with purely labour matters at first instance, now has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance.

This is undesirable, not merely because the High Court is likely to be inundated with labour matters at a time when it is grappling with backlog of cases, but because the Labour Court was expressly created to provide a streamlined, faster, and cheaper remedy to both employers and employees, at first instance, in purely labour matters. The intention of the Legislature in setting up the Labour Court was to create a specialized court to deal with such matters at first instance. That intention will be circumvented if the current situation is not rectified soon - that of concurrent jurisdiction with the High Court.

Section 10 of Part 4 of the Sixth Schedule of the current Constitution provides that;-

“10. Continuation of existing laws

Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution.”

In my view, this means that any inconsistency between the current Constitution and an existing law must be resolved in favour of conformity with the Constitution. This renders section 89(6) of the Labour Act void to the extent of its inconsistency with section 171(1)(a) of the current Constitution.

The inescapable conclusion is that the High Court now has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance. It is up to the High Court to decline to exercise that concurrent jurisdiction as a way of preserving the specialized nature of the Labour Court until the Legislature harmonises section 89(6) the Labour Act with section 171(1)(a) of the current Constitution. It is my view that as things currently stand the argument that the High Court has no jurisdiction to hear purely labour matters at first instance is not sustainable.

I hold in this view, which I have previously expressed in the following cases:- Innocent Chitiki v Pan African Mining HH656-15; G Chiparaushe & 66 Ors v Triangle Limited and Triangle Staff Pension Fund HH196-15. Other cases in which a similar view was expressed are:- Christmas Mazarire v Old Mutual Shared Services HH187-14; Capri v Maponga HH92-15.

I found my brother judges views in CZI v Mbatha HH25-15 persuasive, that;-

“…, to the extent that the Constitution overrides any Act of Parliament, there can be no doubt that section 171(1)(a) overrides section 89(6) of the Labour Act. What this means is that by clear Constitutional provision this Court has original jurisdiction over all matters including those of a labour nature whereas prior to the new Constitutional order the Labour Court enjoyed exclusivity.”

The submission made on behalf of the respondent, that section 172 of the current Constitution should be read together with section 170 and section 171, in the interests of achieving 'dis-ambiguity', was not persuasive to me.

Clearly, section 172(2) confers such jurisdiction on the Labour Court as may be conferred on it by an Act of Parliament, for which we read the Labour Act. It was submitted that a proper reading of section 172(2) will show that the Labour Court derives its jurisdiction from section 172(2) and not from section 89(6) of the Labour Act.

With all due respect to counsel for the respondent, such a chicken and egg approach is most unhelpful and will not resolve the issue in favor of restoring the exclusivity of the Labour Court in purely labour matters at first instance. I am grateful to counsel for the respondent for the guidance given in the heads of argument with regards to the cannons of statutory interpretation;- re - Interpretation of Statutes, LAURENS du PLESSIS, Butterworths, 2007…,.;

“To determine the purpose of the legislature it is necessary to have regard to the Act as a whole and not to focus on a single provision to the exclusion of all others. To treat a single provision as decisive…, might obviously result in a wholly wrong conclusion.”

And Cox v Hales 1890 (15) App 509, where the court said that;-

“It is right for a court not only to look only at the provision immediately under the Constitution but any other which may throw light upon it and afford an indication that general words employed in it were not intended to be applied without some limitation.”

Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374…,.;-

“By adopting that approach to the interpretation section 7 of the Code the learned judge in the court a quo departed from the ordinary grammatical meaning of the section, and, therefore, erred. As Joubert JA said in Coopers & Lybrand & Ors v Byrant 1999 (3) SA 761 (A) at 767 D-F;

'The matter is essentially one of interpretation. I proceed to ascertain the common intention of the parties from the language used in the instrument. Various cannons of the Constitution are available to ascertain their common intention at the time of concluding the cession. According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnance or inconsistency with the rest of the instrument.'”

The same view was subsequently expressed by my brother McNALLY in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S)…, where he said;

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Perason (1857) 10 ER 1216 at 1234 'unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency - but no further.'”

I find the wording of section 172(2) of the Constitution to be clear and unambiguous.

The jurisdiction of the Labour Court is set out in the Labour Act. It is accepted that the Constitution confers jurisdiction on the Labour Court in matters of labour and employment but such jurisdiction cannot be exclusive as long as section 89(6) of the Labour Act is inconsistent with section 171(1)(a) of the Constitution which clothes the High Court with jurisdiction over ALL civil and criminal matters. That includes labour matters, unfortunately. No other interpretation will do. Even the cannons of statutory interpretation cannot save the previous exclusive jurisdiction over purely labour matters, at first instance, of the Labour Court.

Jurisdiction over pure labour matters, at first instance, is now shared - it is concurrent between the two courts because the High Court's jurisdiction is no longer ousted by section 89(6) of the Labour Act.

I cannot accept the submission made on behalf of the respondent that section 89(6) of the Labour Act remains valid because it was enacted in terms of section 172(3) of the current Constitution.

That, in my view, has no bearing on the question of the inconsistency of section 89(6) of the Labour Act with section 171(1)(a) of the Constitution. It is my considered view that the High Court, being a creature of inherent jurisdiction, by implication, can decline to exercise this concurrent jurisdiction in favour of a litigant for any reason that it deems fit in the interests of justice. I see no reason why jurisdiction over purely labour matters, at first instance, cannot be declined on the basis that there is a specialized court which exercises concurrent jurisdiction and that is where the litigant ought to go.

In determining this question of concurrent jurisdiction over purely labour matters at first instance, I did not find the remarks of my brother Judge in the case of Fortunate Chikoyo v Richard Ndlovu, Charles Simbi, Chief Elections Officer & Registrar of Voters HH321-14 instructive for the simple reason that the facts of that case are distinguishable for two reasons;

(i) Firstly, the jurisdiction in question was not original inherent jurisdiction of this court versus jurisdiction conferred on an inferior court which is governed by statute. The jurisdiction of the Electoral Court was in terms of appeals and reviews. In my view, the provisions of the Electoral Act which the respondent seeks to be compared to the provisions of section 89(6) the Labour Act are different.

One provision confers exclusive original jurisdiction, the other review or appeal jurisdiction.

The remarks made in a case where what was in comparison was the original jurisdiction of the general division of this court and a special division, the Electoral Court, of this same court, are surely distinguishable from the relationship or jurisdiction disparity between this court and an inferior court which does not enjoy inherent jurisdiction….,.

In National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & Ors SC08-05, the following guidance was given;-

“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, 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 easily be 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.”…,.

This case was decided in 2005, before the advent of the current Constitution, and it would be interesting to see if the Supreme Court's guidance remains the same when the provisions of section 171(1)(a) of the Constitution are taken into consideration.

The new Constitution of Zimbabwe has restored the jurisdiction of the High Court over purely labour matters at first instance. The Labour Court's exclusive jurisdiction over all purely labour matters at first instance has been overridden by the Constitution.

The plaintiff issued summons on 25 March 2011 for the payment of a sum of USD$8,936=56, being the balance due to him from the defendant in terms of an agreed early retirement package. The defendant adopted the stance that it had paid all the amounts due to the plaintiff in terms of the parties' agreement.

The issue that the court must determine is whether the amounts paid to the plaintiff by the defendant for October, November and December 2010 constituted notice pay in terms of the early retirement package; and whether the additional payment of cash in lieu of leave and other benefits paid during October -December 2010 also formed part of the early retirement package. If they did not, then the plaintiff's claim must succeed.

The court directed the parties to address it on whether this was a purely labour matter, and, if it was, whether this court's jurisdiction was ousted by the terms of the Labour Act [Chapter 28:01].

I am grateful for the submissions made by both counsel for the defendant and counsel for the plaintiff, which provided great assistance to the court in resolving this issue.

Section 171(1)(a) of the Constitution of Zimbabwe, Constitution of Zimbabwe Amendment (No.20) Act, 2013 provides that;

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

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

“89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions —

…,.

(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 import of the provisions of section 171(1)(a) of the current Constitution is to reinstate the jurisdiction of this court over labour matters at first instance, which jurisdiction had previously been ousted by section 89(6) of the Labour Act. See Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 and Capri (Pvt) Ltd v Maponga HH92-15.

It is an inescapable conclusion that the Labour Court no longer enjoys exclusive jurisdiction over labour matters at first instance. That exclusitivity, which was based on an Act of Parliament, was overridden by the Constitution. It is therefore no longer necessary to consider whether a matter is purely labour at first instance before assuming jurisdiction to determine it.

Counsel for the plaintiff submitted that, in any event, the facts do not support the supposition that this is a 'purely' labour matter, a fact which would have allowed this court to 'assume jurisdiction' over it before the provisions of section 171(1)(a) of the current Constitution came into force.

I found this submission persuasive, taking into consideration previous findings of this court that agreements which emanate from contracts of labour (where the cause of action and the remedy for that cause of action are at common law) are enforceable on the basis that they are not 'purely labour' matters which this court was previously precluded from hearing at first instance. See Arnold Sikhumbuzo Mahlangu v CZL Incorporated (Pvt) Ltd HH27-13; Madinda Ndlovu vHighlanders Football Club HB95-11 and Medical Investments Limited v Pedzisayi 2012 (1) ZLR 111…,.

Having concluded that the court was cloaked with the requisite jurisdiction to determine the matter, trial commenced.