Unfair Labour Practices and the Constitutional Right to Fair Labour Practices re: Approach

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

The appellant is employed by the Traffic Safety Council of Zimbabwe as a Regional Manager. He was based at their Gweru office from where he was transferred to the Masvingo office.

The dispute which led to this case arose from his lateral transfer from Gweru to Masvingo.

On 14 November 2003, the respondent's Deputy Director, Finance and Administration, wrote a memorandum to the appellant advising him that he is transferred to Masvingo on a lateral transfer with effect from 1 January 2004 as result of a meeting which had been held by the Directorate of the respondent on 10 November 2003.

Reasons for the transfer were given, in the memorandum, as follows:

1. Training of managers through job rotation and enrichment.

2. That the Masvingo office was performing better than the Gweru office, though the Masvingo office was apparently smaller.

3. That the transfer had been necessitated by a thorough consideration of the likely impact on production and consequent benefits thereto.

The appellant wrote back to the Director of Finance making his submissions against the transfer.

The reasons that he gave were personal. He requested that the transfer to Masvingo be put on hold - but did not say for how long.

It is common cause, that, after the appellant had made his submissions, a meeting of the Directorate was held on Wednesday 19 November 2003 to deliberate on the representations made by the appellant.

On 20 November 2003, the Deputy Director wrote to the appellant advising, among other things, as follows:

“The directorate held a meeting at 11:00hrs to deliberate on the issues on Wednesday 19 November 2003. We sympathise with the personal circumstances in which you are. Also, we note, that, you are doing some publications concerning Traffic Safety work which could be made easier in Gweru. Nevertheless, the directorate realizes that each of us, forty seven (47) employees in all, have different personal circumstances, some of them could be much more taxing than yours. The directorate considers each case on its own merits but guided by the fact that the individual needs and goals are subordinate to those of Traffic Safety Council.”

The letter ended with the following statement:

“Having made a thorough consideration of your submissions, the directorate resolves that the earlier decision to transfer you to Masvingo, with effect from 1 January 2004, still stands.”

On 27 November 2003, the appellant wrote a long letter to the respondent appealing against the decision to transfer him to Masvingo and asking that it be reversed.

He did not succeed.

He took the matter to the Labour Relations Office alleging victimization and unfair transfer.

The Labour Officer referred the matter to Arbitration.

The arbitrator held, that, the respondent had not observed the dictates of the audi alteram partem rule and declared that the transfer was unlawful and should be reversed.

The Traffic Safety Council of Zimbabwe appealed against that decision at the Labour Court. The Labour Court upheld the appeal and confirmed the decision to transfer the appellant.

The appellant now appeals against the decision of the Labour Court.

The appellant's grounds of appeal are as follows:

1. The Labour Court made a total error of law in its interpretation of clause 8.5 of the Traffic Safety Council of Zimbabwe's conditions of service as regards the transfer of employees.

2. The Labour Court incorrectly interpreted the audi alteram partem principle, and, therefore, wrongly applied the doctrine on finding that it was observed by the respondent.

3. The Labour Court erred in law on finding that my legitimate expectation to be heard was fulfilled by the respondent.

The appellant does not dispute the contents of the letter addressed to him on 20 November 2003. His contention is that the original decision, of 10 November 2003, should never have been made without him being granted a hearing. He referred this Court to the respondent's conditions of service, and to the case of Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S).

It is conceded, and rightly so, by the respondent, that, the appellant should have been granted a hearing before the decision to transfer him was made.

Indeed, that is the principle laid down in Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S).

The appellant's attitude, in his submissions, is that once that decision was unlawful it should be set aside.

If the matter had ended there, with that decision made in that manner, I would have no hesitation in holding that it was improper to handle the transfer in that manner although declaring it unlawful would remain an arguable issue depending on the circumstances of the case.

However, that is not the position in this case.

To begin with, the appellant made submissions, detailed submissions, in writing, against the transfer. As a result, the respondent's Directorate held a meeting to deliberate on his submissions.

It is not as if the respondent refused to hear him.

Can it be said, that, once the appellant made representations, the employer should necessarily have made a different decision?

I do not believe that to be the position, and the appellant cannot say that is the position either.

Secondly, it has not been shown, that, the respondent made its original decision on the basis of grounds which have since been proved to be incorrect.

It was still open to the respondent to arrive at the same decision - even after hearing the appellant.

It must be accepted, that, the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer's discretion, in determining which employee should be transferred and to which point of the employer's operations, is not to be readily interfered with except for good cause shown.

Good cause, in the circumstances, while not easy to define, would include such matters as unfounded allegations, victimization of the employee, and any action taken to disadvantage the employee.

The reasons for transferring the appellant were given in its very first correspondence. It is not as if the reasons were made to counter the appellant's objections. Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they are genuine.

The employee who undertakes to work for an employer, whose business is carried out at different places, takes the risk of being sent to perform services for the employer where ever such services are required unless the employment contract stipulates that he is to be employed and remain at a specific place only: see Ngema Chule v Minister of Justice: Kwazulu & Anor 1992 (4) SA 349.

While the respondent may have erred in not giving the appellant a hearing in the very first place, I am satisfied, that, since the respondent did not compel the appellant to go on transfer before he was heard, but, deliberated on the issue before re-affirming its previous decision, the requirement of the audi alteram partem rule was complied with.

There is nothing in the Labour Court's judgment which points at a wrong interpretation of clause 8:5 to 8:5.3. of the appellant's conditions of service.

That clause deals with transfer costs, and it is not the appellant's case that he was denied such costs.

That ground of appeal is baseless.

Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), which the appellant relied on in most of his submissions, while emphasizing the need for an officer to be heard before transfer, cannot be said to set the precedent that a decision made after the officer has complained must necessarily be different.

Further to that, in Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), there was an allegation of victimization, and there was no indication, that, after he had complained, there was any further consideration of the matter. He had also asked for reasons for the transfer and they were never supplied.

The court a quo, in Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), had interpreted the phrase “without his consent” in the Regulations as meaning that the employee had no right to be heard.

In the case before this Court, it is my view, that, although the employee has a right to be heard, and to make representation against the transfer, the final decision still lies with the employer.

Once it is shown that the employer gave consideration to the need to transfer an employee, and gave that employee a hearing, the employer's decision cannot be held to be improper.

In Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S), the Appeal Court went further and pointed out, that, in some cases, an employer can still transfer an employee without giving him or her a hearing, depending on the special circumstances of the case, and that it would be unworkable if every employee were to be consulted before a transfer or decision is made.

In conclusion, I am satisfied, that, even if the appellant in this case had not been given a hearing when the decision to transfer him was first made, once he complained, and the Directorate met and deliberated on the matter, his legitimate expectation to be heard was met, the audi alteram partem rule was complied with, and the decision to transfer him cannot be set aside.

In the result, the appeal is dismissed with costs.

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

Section 12B of the Labour Relations Act [Chapter 28:01] provides that:

“(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed –

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) If, in the absence of an employment code, the employer fails to show that when dismissing the employee he had good cause to believe that the employee was guilty of –

(i) Any act, conduct, or omission inconsistent with the fulfilment of the express or implied conditions of his contract;

(ii)…,.”

Subsection (3) of section 12B of the Labour Relations Act makes provision for cases of constructive dismissal.

Section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 provides that:

“(2) For the avoidance of doubt, it is declared that no employer shall summarily or otherwise terminate a contract of employment with an employee unless –

(a) The termination is in terms of an employment code which is registered in terms of section 101 of the Act; or

(b)…,.; or

(c)…,; or

(d) The employee is dismissed on any of the grounds specified in para (b) of section 12B of the Act.”...,.

In the case of Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05, in charging the employees, Net-One cited section 12B(2)(b)(v) of the Labour Relations Act.

A full disciplinary hearing was conducted, at the end of which each employee was found guilty as charged and dismissed from employment.

It was contended, on appeal, that, in charging the employees under section 12B(2)(b)(v) of the Labour Relations Act, and not section 2 of the Code, Net-One had committed an unfair labour practice.

At p8 of the cyclostyled judgment, CHIDYAUSIKU CJ said that participating in an illegal collective job action could not have been a defence to the charge faced by the employees. He went on to say the following:

“The appellant charged the employees, individually, with absence from work for five consecutive days without reasonable excuse or cause.

I pause to point out that the employees were not charged with taking part in or inciting an unlawful collective job action, a charge that falls squarely under clause 8 of the Code. The employees were charged with absence from work for more than five consecutive days an offence under clause 2 of the Code and section 12B of the Act.

Disciplinary hearings were conducted in respect of each individual employee.

At the conclusion of the disciplinary hearing each of the fifty-six employees was found guilty and dismissed. It was not in dispute that due process was followed in respect of each of the employees. In this regard, the appellant, however, purported to act in terms of section 12B of the Act as read with Statutory Instrument 130/2003.”

The learned Chief Justice held that in citing section 12B(2)(b)(v) of the Labour Relations Act instead of clause 2 of the Code in charging the employees, Net-One was not guilty of unfair labour practice as due process was nonetheless followed in the dismissal of the employees.

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

Section 2(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371 of 1985 read:“No employer shall summarily or otherwise terminate a contract of employment with an employee unless -(a) He has obtained the prior written approval of the Minister to do so; or(b)…,. not relevant.(c)…,. not ...

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

This is an appeal against the decision of the Labour Relations Tribunal, brought under section 92(2) of the Labour Relations Act [Chapter 28:01] ("the Act"), in which it was held, that, the omission of the respondent ("the PTC") to promote the appellant to the post of superintendent did not amount to an unfair labour practice.

The factual background giving rise to the dispute, and upon which the question of law has been debated before this court, was succinctly outlined by the learned Chairman in his judgment. It may be restated as follows:

On 10 October 1984, the PTC invited applications for the post of Telephone Superintendent at its Gateway exchange in Gweru. Four such posts were to be filled by the lateral transfer of serving superintendents, or, if not available, by promotion from the grade of supervisor. The respondent was a Supervisor.

He applied.

After undergoing a two week training course, in April 1985, the appellant, and one Mahachi, a fellow Supervisor, were transferred, permanently, to Gateway Exchange with effect from 28 June 1985.

In April 1986, the appellant, and Mahachi, having by then acted for nine months, wrote to the Regional Telecommunications Manager requesting that they be appointed superintendents, as the two substantive posts at Gateway Exchange had not been filled. The immediate response to their veiled complaint was to offer them the choice of remaining in an acting capacity or being relieved of their positions.

Both resolved to continue as Acting Superintendents.

During February 1987, the appellant, and Mahachi, raised with the Senior Superintendent, Gweru, their concern at still awaiting substantive appointments; but to no avail. New posts, vacancies, and re-gradings were under freeze pending a review of the PTC's establishment.

Later that year, when the freeze was lifted, an exercise was undertaken by the PTC to fill the vacant substantive posts of superintendent at Gateway Exchange. Candidates were required to have attained five "O" level passes, including english language and mathematics, in the General Certificate of Education examination. There were no applicants with the stated qualification.

Neither the appellant, nor Mahachi, had obtained an "O" level pass in mathematics.

In January 1988, the Promotions Board of the PTC requested, and was granted, a waiver of the mathematics requirement for the post of Superintendent. The appellant, and Mahachi, thus qualified for promotion.

In the event, it was Mahachi, alone, who was appointed. The appellant was not, because, at that point in time, he was under investigation on charges of misconduct.

In September 1990, the PTC decided to advertise several posts, one of which was for a Superintendent at Gateway Exchange. The notice issued by it stated, explicitly, that, "O" level passes in english language and mathematics were required of the applicants.

The appellant applied, notwithstanding that he still lacked the mathematics qualification.

A supervisor from Harare Main Exchange also applied. He happened to satisfy the educational requirements: and so, it was he who secured the appointment.

Shortly, thereafter, on 5 February 1991, the appellant was informed, that, as a superintendent had now been appointed to Gateway Exchange, he was no longer needed to act in that capacity and was to be transferred back to Harare Main Exchange as a supervisor.

This was indeed a bitter pill for the appellant to swallow.

He had acted as superintendent at Gateway Exchange for a period of five years and seven months and was not prepared to comply meekly with the instruction that he revert to the grade of Supervisor. He immediately referred what he believed to be an unfair labour practice to a Labour Relations officer in terms of section 93(1) of the Labour Relations Act [Chapter 28:01]. A hearing was convened on 8 February 1991. The Labour Relations officer came to the conclusion that:

"The person who was appointed to fill the vacant post at Gateway Exchange was eligible for the post in terms of the Postmaster General's Circular No.8 of 1986, and in terms of the vacancy notice No.45 of 1990; the PTC acted within the parameters of its laid down policy, and, it was thus not guilty of an unfair labour practice in this regard."

Thereafter followed appeals to the Regional Hearing Officer and from him to the Labour Relations Board.

Section 8 of the Labour Relations Act specifies those acts or omissions which constitute an unfair labour practice by an employer.

Under section 10 of the Labour Relations Act, the Minister of Public Service, Labour and Social Welfare is empowered to prescribe, by statutory instrument, acts and omissions which constitute unfair labour practices and may vary, amend of repeal any such notice. Initially, such provision was made by the Minister in the Third Schedule to the Labour Relations (General) Regulations 1985 (S.I.368 of 1985); and, more recently, in the Second Schedule to the Labour Relations (Settlement of Disputes) Regulations 1993 (S.I.30 of 1993).

Those, then, are the particular acts or omissions deemed to be unfair labour practices which a Labour Relations Officer is mandated, by section 93 of the Labour Relations Act, to deal with.

It was not in contention, and rightly so, that the omission by the PTC to promote the appellant to the post of Superintendent, despite his long and good service when acting in that capacity, was one of the unfair labour practices specified in the legislation.

Nonetheless, the argument advanced was that the PTC had created a situation which caused the appellant to legitimately expect that he would be promoted to the post in which he was acting. The landmark judgment of CORBETT CJ in Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A) was prayed in aid.

In the above cited decision…, the learned Chief Justice elaborated upon the doctrine of legitimate expectation in these words:

"There are many cases where one can visualise in this sphere: where an adherence to the formula of 'liberty, property, and existing rights' would fail to provide a legal remedy when the facts cry out for one, and would result in a decision which appeared to have been arrived at by a procedure which was clearly unfair being immune from review. The law should, in such cases, be made to reach out and come to the aid of persons prejudicially affected.

At the same time, whereas the concepts of liberty, property, and existing rights are reasonably well defined, that of legitimate expectation is not.

Like public policy, unless carefully handled, it could become an unruly horse: and, in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the courts will, no doubt, bear in mind the need, from time to time, to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration."

The extension of the principle of natural justice, as enunciated in Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A) has been accepted by this court: see Health Professions Council v McGown 1994 (2) ZLR 329 (S)…,.; Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 776 (S).

Even if it be assumed (without in any way deciding the point), that, it was permissible for the Labour Relations Officer to accept the appellant's reference, albeit falling outside those definitive acts or omissions specified as constituting unfair labour practices, the particular facts seem to me to exclude a finding that the appellant had a tangible natural law right to be promoted to the post of Superintendent.

Most importantly, at the date the appellant was appointed an Acting Superintendent it must have been known to him that he lacked the necessary academic level in mathematics to secure the substantive post. It was only because there was no qualified applicants that the requirement for an "O" level pass in mathematics was waived in 1988. Hence Mahachi was promoted.

But, for the pending investigation, the probability is that the appellant would have been appointed as well, since there remained a vacancy at Gateway Exchange.

Colloquially speaking, that was a "one off" situation.

The waiver of mathematics was dictated by the prevailing circumstances. It was not to be a permanent relaxation: and, when, in September 1990, the PTC advertised the vacancy at Gateway Exchange, an "O" level pass in mathematics was once more a pre-requisite. The appellant had the experience but not the academic qualification.

How could he, therefore, legitimately or reasonably expect to obtain the appointment?

The decision not to promote him, in my opinion, was not one unfairly arrived at.

If the PTC had again waived the requirement of mathematics, the appellant's position might have been different. However, it is unnecessary to decide the outcome.

I would merely emphasise, as cautioned by CORBETT CJ, that, the need to avoid undue judicial interference in the administration of public authorities must always be placed in the balance.

Indeed, it could be submitted, with some persuasion, that, the promotion of an employee is a privilege left to the discretion of the employer, to be conferred when deemed fit. It is not a right that an employee is entitled to claim unless, of course, his contract of employment so provides.

For the aforegoing reasons, I would dismiss the appeal with costs.

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

It would appear, on the papers, that the bone of contention between the parties is the legal status of the employer's common law right to terminate an employment relationship on notice. Counsel are agreed that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on ...

It would appear, on the papers, that the bone of contention between the parties is the legal status of the employer's common law right to terminate an employment relationship on notice.

Counsel are agreed that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. The point of departure appears to be that the appellants, while acknowledging that the employer's right once existed, argue that it has since been abolished. The respondent contends that the employer's right has not been abolished and still subsists.

It was contended, for the appellants, that section 12B of the Labour Act [Chapter 28:01] abolished the employer's common law right to dismiss an employee on notice....,.

As I have already stated, it is common cause that once a upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. That common law right, in respect of both the employer and the employee, can only be limited, abolished, or regulated by an Act of Parliament, or a statutory instrument that is clearly intra vires an Act of Parliament.

Section 12B of the Labour Act [Chapter 28:01], as the main heading of that section reveals, deals with dismissal and the procedures to be followed in those instances where an employment relationship is to be terminated by way of dismissal following misconduct proceedings. The section also sets out, in some detail, what constitutes unfair labour practice – which it outlaws. Termination of employment on notice is not among the conduct that section 12B of the Labour Act [Chapter 28:01] outlaws as unfair labour practice.

It is also instructive to note that section 8 of the Labour Act [Chapter 28:01] sets out, in some detail, conduct that is outlawed as unfair labour practice. Section 8 of the Labour Act [Chapter 28:01] provides as follows -

“8 Unfair Labour Practices by Employer

An employer or, for the purpose of paragraphs (g) and (h), an employer or any other person, commits an unfair labour practice if, by act or omission, he -

(a) Prevents, hinders, or obstructs an employee in the exercise of any right conferred upon him in terms of Part II; or

(b) Contravenes any provision of Part II or section eighteen; or

(c) Refuses to negotiate in good faith with a workers committee, or a trade union, which has been duly formed, and which is authorized in terms of this Act, to represent any of his employees in relation to such negotiation; or

(d) Refuses to co-operate in good faith with an employment council on which the interests of any of his employees are represented; or

(e) Fails to comply with or implement -

(i) A collective bargaining agreement; or

(ii) A decision or finding of an employment council on which any of his employees are represented; or

(iii) A decision or finding made under Part XII; or

(iv) Any determination or direction which is binding upon him in terms of this Act; or

(f) Bargaining collectively, or otherwise deals with another trade union, where a registered trade union representing his employees exists; or

(g) Demands from any employee, or prospective employee, any sexual favour as a condition of -

(i) The recruitment for employment; or

(ii) The creation, classification, or abolition of jobs or posts; or

(iii) The improvement of the remuneration or other conditions of employment of the employee; or

(iv) The choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or

(v) The provision of facilities related to or concerned with employment; or

(vi) Any other matter related to employment; or

(h) Engages in unwelcome, sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually-coloured remarks, or displaying pornographic materials in the workplace.”

It is apparent from the above section that termination of employment on notice is not among the conduct outlawed by section 8 of the Labour Act [Chapter 28:01].

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The appellant argues that the court further misdirected itself by finding that the respondent had a right to stop paying the appellant his salary and benefits in circumstances amounting to a constructive dismissal. Section 12B of the Labour Act [Chapter 20:28] provides: “12B Dismissal (1) Every employee has the right not to be unfairly dismissed. (2) An ...

“12B Dismissal

(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed -

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) In the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).”

The arbitrator had found that the dismissal of the appellant had been effected in contravention of section 12B of the Labour Act [Chapter 20:28]. The respondent does not have a registered employment code, and, perforce, any disciplinary proceedings in relation to its employees would have to be conducted in terms of the Labour National Employment Code of Conduct, S.I.15 of 2006. Section 5 of the Labour National Employment Code of Conduct, S.I.15 of 2006 prohibits any dismissal that is effected in defiance of the provisions of section 12B of the Labour Act [Chapter 20:28]. By dismissing the appellant without first conducting a disciplinary hearing, as required in terms of sections 5 and 6 of the Labour National Employment Code of Conduct, S.I.15/2006, the respondent deprived the appellant of his right to be heard in breach of the audi alteram partem principle. This is an elementary notion of fairness and justice which is universally accepted as being the norm by which parties should govern their relationship with each other. A failure to adhere to the tenets of the principle results in prejudice to the party against whom the breach has been perpetrated.

In Taylor v Minister of Education & Anor 1996 (2) ZLR 772 GUBBAY CJ stated…,:

“The maxim audi alteram partem expresses a flexible tenet of natural justice that has resounded through the ages. One is reminded that even God sought and heard Adam's defence before banishing him from the Garden of Eden. Yet the proper limits of the principle are not precisely defined. In traditional formulation, it prescribes that when a statute empowers a public official or body to give a decision which prejudicially affects a person in his liberty or property or existing rights, he or she has a right to be heard in the ordinary course before the decision is taken. See Metsola v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S) at 333B-F; compare on the facts, Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 at 551F-G, per SCHREINER JA.”

The Labour National Employment Code of Conduct, S.I.15 of 2006 sets out in detail procedural steps that have to be taken before a person is dismissed from his or her employment. It is common cause that before the appellant had his benefits and salary unilaterally withdrawn by the respondent he was not afforded an opportunity to be heard. In effect, he was dismissed without any disciplinary proceedings having been conducted. This is borne out by the fact that the respondent then proceeded to hold disciplinary proceedings in November 2009….,.

In the circumstances, it is evident that the court a quo misdirected itself in setting aside the award by the arbitrator. The appeal must therefore succeed.

In the result, I make the following order:

The judgment of the court a quo is set aside and is substituted with the following:

“The appeal is dismissed with costs.”

SC33-13 : TENDAYI TAMANIKWA and FRANK TINARWO and EMMERSON PAMIRE and TENDAI MOMBESHORA vs ZIMBABWE MANPOWER DEVELPOMENT FUND
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

Although the appellants have not argued as such, the Labour Court is empowered with review jurisdiction. In terms of section 89(1)(d1) of the Labour Act [Chapter 28:01], the Labour Court shall “exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.” In the exercise of its powers, the ...

SC14-17 : CHEMCO HOLDINGS (PRIVATE) LIMITED vs L TENDERE and TWENTY-FOUR OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA, and MAVANGIRA JA

…,. Unlike the position which obtains with a breach of section 16 of the Labour Act [Chapter 28:01], a failure to observe section 25 of the Labour Act [Chapter 28:01] is not, in terms of the Act, an unfair labour practice. Actions constituting unfair labour practice are set out in sections 8 and ...

View Appeal
HH626-14 : THE NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

Section 82(3)(a) of the Labour Act [Chapter 28:01] provides that failure to comply with the provisions of a Collective Bargaining Agreement is an unfair labour practice. See Barnsley v Harambe Holdings HC4648-2011 111…, and DHL v Madzikanda 2011 (1) ZLR 201…,.

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

Section 12B of the Labour Act [Chapter 28:01] (“the Labour Act”) regulates matters of unfair dismissals.

SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

Section 12B(3)(b) of the Labour Act [Chapter 28:01] reads as follows: “(3) An employee is deemed to have been unfairly dismissed - (a)…,.; (b) If, on termination of an employment contract of fixed duration, the employee - (i) Had a legitimate expectation of being re-engaged; and (ii) Another person was engaged instead of the employee.”…,. In Magodora v Care International 2014 (1) ZLR 397 (S)…, PATEL JA pronounced ...

Section 12B(3)(b) of the Labour Act [Chapter 28:01] reads as follows:

“(3) An employee is deemed to have been unfairly dismissed -

(a)…,.;

(b) If, on termination of an employment contract of fixed duration, the employee -

(i) Had a legitimate expectation of being re-engaged; and

(ii) Another person was engaged instead of the employee.”…,.

In Magodora v Care International 2014 (1) ZLR 397 (S)…, PATEL JA pronounced an interpretation on section 12B(3)(b) of the Labour Act [Chapter 28:01]. He stated that the plain meaning of section 12B(3)(b) of the Labour Act is that an employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and was supplanted by another person who was engaged in his stead. He further stated, at 403A-C, that these requirements are patently conjunctive and the mere existence of an expectation without the concomitant engagement of another employee does not suffice.

In UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S) ZIYAMBI JA made the point that the onus is on the employee to prove the two requirements stipulated in section 12B(3)(b) of the Labour Act. The same reasoning is also found in the South African case of Ferrant v Key Delta (1993) 14 ILJ 464 (IC), where the court held that the onus of proving reasonable expectation rests on the employee. In another South African case, Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA), the court found that to discharge that onus, the employee must prove that he or she actually expected the contract to be renewed and that only then would the question whether the expectation was reasonable arise.

PROFESSOR MADHUKU L, Labour Law in Zimbabwe, Weaver Press, 2015…, states:

“The test for legitimate expectation is objective: would a reasonable person expect re-engagement? This requires an assessment of all the circumstances of the case. To be 'legitimate', the expectation must arise from impressions created by the employer.”

In other words, in order for an employee to show that he or she reasonably expected that his or her fixed term employment contract would be renewed, he or she must convince the court that there was an objective basis for the creation of the “reasonable expectation”….,.

According to the Cambridge Advanced Learner's Dictionary, “reasonable” means based on or using good judgment, and, therefore, fair and practical. The Collins English Dictionary defines “reasonable” as using or showing reason, or sound judgment; sensible….,.

In the South African case of Magubane & Ors v Amalgamated Beverages (1997) 18 ILJ 1112 (CCMA), the court held that whether there was a reasonable expectation of renewal must be determined from the perspective of both the employer and the employee.

SC05-12 : MASHONALAND TURF CLUB vs GEORGE MUTANGADURA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA AJA

The gravamen of the appeal is that the Labour Court erred in upholding the manner in which the arbitrator exercised his discretion in terms of section 12B(4) of the Labour Act and that the decision of the court a quo ignored the employer's right to dismiss an employee found guilty of an act of misconduct which goes ...

CC15-16 : BONIFACE MAGURURE and 63 OTHERS vs CARGO CARRIERS INTERNATIONAL HAULIERS (PVT) LTD T/A SABOT
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA JCC

The standard of what is unfair labour practice prescribed by the Labour Act was not in issue. In other words, the question is not whether, in defining unfair labour practice, the Labour Act violated the fundamental right to fair labour practice enshrined in section 65(1) of the Constitution.The Labour Act ...

CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

UNFAIR LABOUR PRACTICE The applicants also argued that the operation of the transitional provision infringed their right to fair labour practices protected by section 65(1) of the Constitution. It was their view that the ex post facto imposition of the financial obligation upon them to pay the employees whose contracts they had terminated on notice the minimum retrenchment package meant ...

UNFAIR LABOUR PRACTICE

The applicants also argued that the operation of the transitional provision infringed their right to fair labour practices protected by section 65(1) of the Constitution.

It was their view that the ex post facto imposition of the financial obligation upon them to pay the employees whose contracts they had terminated on notice the minimum retrenchment package meant that the employees were being paid when they had not worked. In essence, they argued that paying people who had not worked was not a fair labour practice.

Section 65(1) of the Constitution provides as follows:

“65 Labour Rights

Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage.”

Section 65(1) of the Constitution guarantees, in a wholesome fashion, the right to fair labour practices. The right to fair labour practices is conferred on “every person”. It is a labour right claimable by a person in an employment relationship. The word 'person' is defined in section 332 of the Constitution to mean an individual or a body of persons, whether incorporated or un-incorporated.

In the founding affidavit, the applicants state:

“…,. Sight cannot be lost of the fact that this kind of conduct constitutes an unfair labour practice as defined in section 65 of the Constitution of Zimbabwe. The whole process lacks elements of basic fairness.”…,.

Section 2, as read with Part III, of the Labour Act [Chapter 28:01] gives effect to section 65(1) of the Constitution.

Section 2 of the Labour Act defines “unfair labour practice” as an unfair labour practice specified in Part III, or declared to be so in terms of any other provision of the Labour Act. The Labour Act codifies what the Legislature considered to be actions or omissions which, if committed by the employer, a trade union, a workers' committee, and, in certain circumstances, other persons against an employee would amount to unfair labour practices.

In Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16 the Court held that the Labour Act only defines those labour practices which, if proved, would amount to unfair labour practices in violation of the constitutional right to fair labour practices. These are acts committed as a matter of practice by an employer or employee contrary to what is required by the law to be done. For a person to allege an unfair labour practice as a violation of the right enshrined in section 65(1) of the Constitution, the conduct complained of must constitute one of the acts or omissions listed by the Labour Act as unfair labour practices.

The general requirements that must be satisfied before conduct, positive or otherwise, can be held to fall within the definition of unfair labour practice are that -

(i) The “act or omission” must constitute a “labour practice”.

An 'act' or 'omission' may refer to either a single act or a single inaction which may or may not have lasting consequences and having occurred during the subsistence of the employment relationship, that is, in the period between the conclusion of the contract of employment and its termination. The word 'practice' suggests that the employer must have actually done something or declined to do something;

(ii) The unfair labour practice can arise only if the employer does something or refrains from doing something (“act or omission”).

In Zimbabwe, the employer must have actually done something listed in Part III of the Labour Act, which act or omission the employee claims the employer should have done or should have refrained from doing;

(iii) The unfair labour practice must be between an employer and an employee.

In Zimbabwe, however, the unfair labour practice may be between the employee and a trade union, a workers' committee or any other person for sexual conduct amounting to an unfair labour practice;

(iv) The unfair labour practice must involve one of the practices specified, for our purposes, listed in Part III of the Labour Act or declared to be so in terms of any other provision of the Labour Act; and

(v) The act or omission complained of must be unfair.

See JOHN GROGAN:“Employment Rights” 1ed, Juta…,.

JOHN GROGAN:“Employment Rights” 1ed, Juta states…, that:

“Considerations of fairness normally arise in situations where one person has power to dispense or deny favours to others. The fair labour practice is concerned with the kind of favours employers are able to bestow on employees – positions, benefits and sanctions for ill-discipline. Relief for unfair labour practices is designed to ensure that employers do not abuse their power to bestow or withhold favours and benefits, or impose discipline in an unfair manner. In this sense, the right to fair labour practices is a check on employer unilateralism.”

In the founding affidavit, the applicants said:

“32. The effect of the amendment is to have implications on (the) applicants' right to the protection of the law as set out in section 56(1) of the Constitution. This is because the law opens up (the) applicants to a monetary claim in the absence of a sound legal or commercial basis. It also constitutes an unfair labour practice in violation of section 65(1) of the Constitution in that it requires an employer to pay from monies that are not in existence….,.”…,.

What is complained of by the applicants as unfair labour practice is the retrospective imposition by the Legislature on employers who terminated their employees' contracts on notice of the obligation to pay them a minimum retrenchment package.

The employees would be receiving payment of minimum retrenchment packages as a matter of right in terms of section 12C of the Labour Act.

That cannot be called an unfair labour practice.

The fact that an employer has no money with which to discharge the obligation to the employee whose contract was terminated on notice does not make the obligation invalid.

Section 12C(2) of the Labour Act is consistent with international best practices. The International Labour Organisation (“ILO”) Convention 158 (“the Convention”) contains principles which have been accepted at international level on how employees whose contracts of employment have been terminated on notice at the initiative of employers must be treated under national law.

Article 12(1) of the International Labour Organisation Convention 158 provides:

“12(1) A worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to –

(a) A severance allowance or other separation benefits, the amount of which shall be based, inter alia, on length of service and the level of wages and paid directly by the employer…,.”

Section 12C(2) of the Labour Act gives effect to the purpose of Article 12(1) of the International Labour Organisation Convention 158 of ensuring that workers whose employment has been terminated on notice, at the initiative of the employer, are afforded some form of income protection to mitigate the adverse effects of termination of employment.

It is a recognised principle of labour relations reflective of social justice that when employment is terminated, for reasons other than misconduct, compensation for long service rendered is paid. Payment of a severance package based on length of service to an employee whose contract was terminated for a reason other than misconduct has always been viewed as a means of ensuring that the employee has a soft and safe landing after losing employment.

The adoption of principles of Article 12(1)(a) of the International Labour Organisation Convention 158 is an important factor which serves to show that the decision to retrospectively apply the financial obligation on employers who had terminated employees' contracts on notice on or after 17 July 2015 to pay them the minimum retrenchment package based on length of service was not based on arbitrariness. It was based on internationally acceptable legal standards.

The provisions of Article 12(1)(a) of the International Labour Organisation Convention 158 are relevant in testing the constitutionality of the retrospective application of section 12 of the Labour Act to the applicants.

An examination of the provisions of section 12C(2) of the Labour Act shows that they closely reflect the requirements of Article 12(1)(a) of the International Labour Organisation Convention 158. The Convention contains universally accepted norms. It constitutes a touchstone against which the notion of fairness may be gauged. This is not to suggest that the notion of fairness is exclusive of employers' legitimate commercial interests. It indicates that a central purpose of modern employment law is to guarantee the protection of workers - even at the time of termination of employment on notice at the initiative of the employer.

The applicants were aware, at the time they terminated employees' contracts on notice, that the law required an employer who terminated employees' contracts for reasons of retrenchment to pay them severance packages calculated on the basis of length of service. The retrospective financial obligation imposed on the applicants and the other employers similarly situated was measured in terms of a formula substantially similar to that relating to the calculation of severance packages. The imposition of the financial obligation on employers who terminated employees' contracts on notice to pay the minimum retrenchment package based on the length of service was not dis-proportionate to the applicants' experience.

The applicants want to ignore the fact that the principle behind Article 12(1)(a) of the International Labour Organisation Convention 158, the law governing retrenchments of employees, with which they are familiar, and the retrospective application of the financial obligation on them under the transitional provision, is that the length of service designates value independent of remunerated services.

Section 65(1) of the Constitution is not applicable.

It is not the conduct of the employer or the employee which is under attack. It is the law itself, the validity of which is under attack because it retrospectively imposed the financial obligation on employers who terminated their employees' contracts on notice to pay them minimum retrenchment packages calculated by reference to length of service.

The Legislature, as an arm of Government responsible for making laws, is clearly not envisaged by the Labour Act as part of those who can commit an unfair labour practice. Unfair labour practice is conduct which is prohibited by law. It can only be committed by the employer in respect of the employee and his or her interests or by the employee in respect of the employer and his or her or its interests.

Payment of a severance package, based on length of service, to an employee whose contract was terminated for reasons other than misconduct cannot constitute an unfair labour practice within the meaning of section 65(1) of the Constitution. The applicants' allegation is clearly without legal basis. There was no violation of the right to fair labour practices.

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

Section 89(2)(c) of the Labour Act [Chapter 28:01] 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.

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE
Ruled By: MATHONSI J

Section 8(e)(iv) of the Labour Act [Chapter 28:01]..., provides that an employer commits an unfair labour practice if he fails to comply with a determination or direction which is binding upon him in terms of the Labour Act.

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.The factual circumstances of this matter are common cause.The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He ...

The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He was dismissed from employment for disclosing confidential information during conciliation proceedings. He challenged his dismissal on the basis that it was an unfair dismissal and noted an appeal to the Labour Court. The Labour Court dismissed the appeal on the main ground that the appellant did violate the respondent's Code of Conduct in that he did not follow the laid down procedures on the obtaining and disclosure of confidential information.

The appellant was aggrieved by the decision of the Labour Court and has approached this Court on the grounds summarised below;

1. The court a quo misdirected itself and erred at law entirely in not finding that the disciplinary procedures set down in the Code of Conduct of the respondent were not followed thereby rendering the dismissal both substantively and procedurally wrong.

2. The court a quo further erred in rejecting the appellant's defence that the disclosure of the company information was not in breach of section 3(4) of Schedule 1 of the Employment Code of Conduct for the respondent as read with Part C 10.2.

3. The court a quo erred and misdirected itself at law in finding that the appellant was not unfairly dismissed....,.

Whether the appellant's conduct violated the respondent's Code of Conduct

The appellant was charged with un-authorised disclosure of company secrets as outlined in section 3.4 Schedule 1(12) as read with Part C 10.2 of the respondent's Code of Conduct. The relevant part of the Code reads as follows:

“Information with respect to any confidential product, plan or business transaction of the Group, or personal information regarding employees, including their salaries, or any business information must not be disclosed by any employee unless and until proper authorisation for such disclosure has been obtained.”…,.

It is not in dispute that in the course of conciliation proceedings attended by both employer (respondent in casu) and employee representatives, a request was made to the appellant who was present as the workers' committee chairman, for a list, if he had it, of employees affected by alleged salary anomalies. The appellant duly submitted the list - except that it showed employees salaries, in addition to their names.

The respondent alleged as follows in respect of how the appellant secured this confidential information (see respondent's heads of argument in the Labour Court):

“It is common cause that salaries information was downloaded by one S. Mamina and sent by e-mail to one W. Muyenza, who, in turn, emailed it to the appellant. Equipped with this information, the appellant did not simply email it to the next colleague: instead, he changed the label of the file and instructed it to be printed.” (sic)….,.

The resultant print-out is what the appellant disclosed before the conciliation proceedings, leading to the charges in question.

The appellant does not deny disclosing the information in question. Nor does he deny that he did so without any authority.

His defence was that the information in question “was disclosed during a lawful conciliation hearing and in the appellant's capacity as a worker representative, not as an employee…,: this was done as a bona fide step to prove the worker's case. It was not an act done in the normal course and scope of the contract of employment of the appellant.” (paragraphs 2 and 7 of the appellant's heads of argument).

The appellant further contends that since the disclosure of the list in question was “clearly” done in the pursuit of employees' interest, it was lawful. He relies for this contention on the following excerpt taken from MUNYARADZI GWISAI's “Labour and Employment Law in Zimbabwe”…,:

“In circumstances involving trade unions or workers committee, the duty of confidentiality on employees not to divulge confidential information has to be read with the workers' fundamental right to democracy at the workplace under section 7 and to conduct workers committee or trade union business in terms of sections 4 and 8 of the Labour Act. Divulsion of information in one capacity as a worker representative and within the pursuit of lawful objects of such organisations or giving information to such organisation in the pursuit of lawfully pursuing an employees interest, is not in breach of such duty.”

The distinction between confidential information required by an individual worker and that required by a worker's representative is, in my view, a useful and indeed critical one.

However, I entertain some doubt concerning the above excerpt's correctness when it suggests that such divulsion of information would nevertheless be lawful - even if it is done in blatant violation of an express provision of the Code of Conduct.

In fact, it would appear that a worker representative has a greater opportunity of lawfully accessing confidential information than an ordinary employee, by, for example, formally discovering such information at negotiating fora or requesting adjudicating bodies to order the production of such information. This to be compared, for instance, with section 5 of the Income Tax Act [Chapter 23:06] which allows tax department employees, who have sworn an oath of secrecy regarding tax matters, to break such oath where they are ordered by a competent court to disclose the required information.

Where confidential information is unreasonably withheld, a worker representative may invoke unfair labour practice provisions in the Labour Act.

Ultimately, employees are better advised to negotiate for easier access to information provisions in employment codes of conduct than to blatantly violate the law as is implicit in the excerpt cited above.

The respondent, in its heads of argument, in my view, correctly counters this excerpt by stating thus:

“The disclosure of the information in violation of section 3.4 of Schedule 1 of the Code as read with section 10.2 of Part C of the Code is permissible subject to the appellant seeking authority from the employer to do so…,. If such authority was sought, but, nonetheless unreasonably withheld, appellant might have been justified to access the information as he did and proceed to disclose it anyway within the spirit of the labour law jurisprudence emoted by the learned author.”...,.

His case might have been different had he sought, and been denied, the requisite authorization.

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's..., submission, that section 13(1) of the Labour Act [Chapter 28:01] maintains the employer-employee relationship where terminal benefits have not be paid, is incorrect.All it does is to criminalize unreasonable delay in payment and deign it an unfair labour practice.

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

On 21 July 2015, I registered an arbitral award in favour of the applicant which was in the following terms:

“It is ordered that;

1. The arbitration award attached hereto, and granted in favour of the applicant on the 29th of October 2014, be and is hereby registered as an order of this Honourable Court.

2. The respondent be and is hereby ordered to pay the applicant $11,448=88 plus interest of 5% per annum from the date of the arbitral award up to the date of full payment.

3. Respondent shall pay costs of this application at a higher scale if it opposes the application but if it does not oppose the application each party to bear its own costs.”

The respondent has appealed against the registration of the award and has asked for my written reasons for registration.

A summary of the case is in order.

The applicant obtained an arbitral award in his favour for unfair dismissal. He was dismissed for tarnishing the image of the Zimbabwe Manpower Development Fund (ZIMDEF) by failing to pay his personal debts and drawing public attention by being pursued by the Messenger of Court at his workplace.

His conduct was deemed, by the employer, to be inconsistent with the conditions of his employment.

He disputed being guilty of misconduct on the basis that these were private debts and the charges stretched too far and were unfair.

The Messenger of Court had threatened to attach the employer's property and had disrupted business.

The arbitrator's finding was that the failure to repay debts did not justify disciplinary proceedings. The arbitrator's view was that allowing the charges to stand would set a bad precedent for labour relations.

The arbitrator who did the calculations of what was due to the applicant, who was different from the original arbitrator, ordered that he be paid $11,448=88 plus interest at 5% per annum from the date of the arbitral award to the date of full payment.

The applicant sought registration of the award in order to compel the respondent to comply with the award.

The respondent had opposed the registration in the initial instance, on the grounds that there was a pending application for interim relief in the Labour Court and that the Labour Court should be given an opportunity to make a ruling on the application for interim relief pending before it. It was argued that registration would render the Labour Court application nugatory.

It was also argued, by the respondents, that a litigant who has taken advantage of the procedure to seek interim relief would suffer the very harm from he had sought protection.

In addition, the respondent also highlighted, in its application, that it had a general appeal pending on the matter in the Labour Court besides its interim application.

At the hearing of this opposed application, on 21 July 2015, the applicant drew attention to the fact that the pending application for stay of execution pending appeal, upon which the respondent had resisted registration on the basis that it would be rendered nugatory, had since been heard and dismissed on 17 April 2015 under LC/H/349/14. As such, it was the applicant's argument that there was no basis upon which to refuse to grant registration.

The applicant further argued that the respondent's standpoint, that to register the award would be against public policy, also lacked merit.

The respondent, on the other hand, acknowledged dismissal of the application for interim relief but emphasized that it had filed an application for leave to appeal the dismissal of its application for interim relief. As a result of this pending application for leave to appeal, it was argued that I should not register the award.

Furthermore, it was the respondent's argument that the main appeal on the award had yet to be heard.

In addition, it was maintained that to register the award would be against public policy on the basis that the manner in which the calculation of the award had been done would result in tax avoidance.

At the same time, the respondent was adamant that the process that had been initiated in the Labour Court, in terms of the challenge to the arbitral award, should certainly not be ignored.

The applicant, however, resisted the respondent's argument that registering the award would be against public policy on the basis that, as this was a labour matter, Article 34 and 36 of the Uncitral Model Law set out in the Schedule to the Arbitration Act [Chapter 7:15] was not applicable.

This was said to be because the Arbitration Act and its provisions apply to matters referred to compulsory arbitration in terms of section 98(2) of the Labour Act. Reliance for this viewpoint was placed on the case of Samudzimu v Dairibord 2010 (1) ZLR 357 (H).

More significantly, the respondent put forward the argument that gone are the days when this court could argue that it cannot interfere with a labour matter as it has now been constitutionally as a court of original jurisdiction.

It was emphasised that this court therefore had jurisdiction to determine a labour matter.

Authority for this standpoint was placed on the case of Confederation of Zimbabwe Industries v Rita Marque HH125-15 whereby MATHONSI J held that section 171(1)(a) of the Constitution of Zimbabwe had reinstated the jurisdiction of the High Court in labour matters which had been ousted by section 89(6) of the Labour Act [Chapter 28:01].

Section 89(6) of the Labour Act essentially provides that no court, other than the Labour Court, shall have jurisdiction to hear and determine labour matters - which include applications and appeals.

Section 171(1)(a) of the Constitution, which is argued to have altered this position, provides that “the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Jurisdiction of a court essentially refers to the authority that a court has to hear and determine a dispute that is brought before it. This is in distinction to the court's “inherent power” to do something as dealt with by section 176 of our Constitution.

In terms of this section, the Constitutional Court, the Supreme Court, and the High Court all have inherent powers “to protect and regulate their own process and to develop the common law or customary law taking into account the interests of justice and the provisions of this Constitution.”

Such inherent powers can thus be inherent procedural powers or inherent substantive powers and are exercised on the premise that the court in question already has jurisdiction in the first place.

Thus, regulation of process, as exhorted by section 176 of the Constitution, would be largely an exercise of inherent procedural powers; while development of common law and customary law, as per section 176 of the Constitution, would be largely an exercise of inherent substantive powers.

The respondent's argument was founded on the jurisdictional authority of the High Court, in terms of section 171(a) of the Constitution, to hear and determine a civil matter, in this instance, a labour dispute.

It was against the backdrop of the jurisdictional argument that I formulated the decision to grant the order of registration.

I took into consideration the argument advanced by the respondent, that, this court is now fully empowered to hear such labour matters as a court of original jurisdiction.

As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) of the Constitution does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force, that, in reality, places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court “jurisdiction over labour matters as conferred by an Act of Parliament.”

The applicable Act of Parliament, in labour matters, is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction, in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said that at least, in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171 of the Constitution.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful “need” for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters.

It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.

Ordinarily, existing legislative mechanisms that are in place would logically need to be followed unless there exist strong reasons for intervention or unless a reading of any specific provision suggests otherwise in terms of the jurisdiction question: see, for instance, Mapini v Omni Africa (Pvt) Ltd HH494-13 and also the discussion in Derdale Investments (Pvt) Ltd v Econet Wireless (Private) Ltd & Ors HH656-14.

Generally, it would also be amiss to lose sight of a major reason behind the creation of the Labour Court: which was that it would be a specialist court on labour issues.

More significantly, in casu, the Labour Court had already been approached as a court of original jurisdiction in terms of the appeal and interim relief sought, in keeping with legislative intention.

The approach to the High Court was registration-related because when it comes to registration of labour awards, the Labour Court clearly lacks jurisdiction as the legislature gives this power to Magistrates' Courts and the High Court depending on the value of the award.

Registration of awards, in terms of section 98(14) of the Labour Act, is, therefore, an area of Labour Law where the statute endows the Magistrate Court and the High Court with registration jurisdiction: see Trust Me Security Org v Mararike & Ors HH325-14.

Also, Articles 34 and 36 of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] empower the High Court as the forum to set aside an award on specified grounds.

For the court to intervene on the basis of public policy, however, the infringement of public policy would have to be palpably outrageous. The approach is to construe public policy restrictively: see Zimbabwe Posts (Pvt) Ltd v Communications & Allied Services Workers Union HH60-14; Makonye v Ramodimoosi & Ors HH52-14; Wei Properties (Pvt) Ltd v S & T Export & Import (Pvt) Ltd HH336-13.

The respondent's reasons, in this case, were that an alternative claim for damages in lieu of reinstatement had not been made.

The principle is indeed where reinstatement has been ordered that damages be stated as an alternative to reinstatement.

This argument was put forward against the backdrop of an outstanding appeal in which the basis of the appeal is that the dismissal of the applicant was warranted. As such, the appeal should be heard since dismissal of the applicant is the real gist of its grievance.

The Appeal Court will, needless to say, address the way forward on damages such as by ordering remittal for this issue to be addressed by the arbitrator if deemed necessary.

Appeals should not be heard through the back door.

Another grievance said to justify non-registration was that the computation of tax should have been done on the whole figure instead of piece meal as the piece method employed amounted to tax evasion.

In my view, this was an issue which, if the respondent felt strongly about, should have raised with the arbitrator within 30 days of receipt of the award.

I say this because Article 33(1)(a) of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] permits a party, on notice to the other party, to request the arbitral tribunal to correct any error in computation among other errors.

The respondent's argument lacked merit and was simply one of convenience and avoidance.

In any event, this court lacked the necessary details to engage effectively with this assertion. I was therefore of the view that, overall, this was not a case of compelling need that justified intervention.

Furthermore, in allowing registration, I took into account that with interim relief having been denied, the applicant also stood on firmer ground than the respondent.

In terms of section 92E(2) of the Labour Act [Chapter 28:01], the general legal position is that an appeal does not suspend the decision appealed against.

Also, in terms of section 92E(3) of the Labour Act, pending such determination, the Labour Court may make such interim determination as the justice of the case demands: see Giya v Ribi Tiger Trading HH 57-14.

In this case, the Labour Court had already decided, at the time I heard the application for registration, that interim relief did not meet the justice of the case.

The respondents heads of argument had been very clear that the application for interim relief, which was pending at the time it filed its case, was central to its opposing registration.

What was therefore instructive in registering the award was the fact that the application for stay of execution had been dismissed. It remained extant since it had not been stayed or suspended: see Greenland v Zimbabwe Community Health Intervention Research Project HH93-13.

Accordingly, the above were my reasons for registering the applicant's arbitral award.

SC00-89 : ART CORPORATION LTD vs MOYANA
Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

This is a labour dispute between the parties. A brief history of the matter is as follows:

The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."

(Nedlaw was the Corporation's holding company).

There was also provision for one month's notice of termination of the contract to be given by either side.

Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.

On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.

The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."

Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).

After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).

Thereafter, events developed as follows:

1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."

2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.

3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.

4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."

5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.

6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.

7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.

8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:

(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).

(b) Payment of emoluments from the date of illegal termination to date.

(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.

9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:

"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.

2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.

3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.

4. That there be no order as to costs."

Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.

I will deal with them in turn....,.

(C) ACTING ALLOWANCE

The main argument put forward by the Corporation was that the claim for an acting allowance was not a dispute under the Labour Regulations Act. At best, it is a civil claim which should be bought in a Civil Court.

It seems to me that there is a great deal of merit in this argument.

Unless Mr Moyana can found his claim for an acting allowance squarely on some basis cognisable by the Labour Relations Act 1985, then, it is not a matter for determination under the Labour Relations Act.

His contract of employment makes no provision for acting allowances. In fact, it makes it clear that the salary structure in the Group is particularly flexible.

Compare the explicit provisions of section 19 of S.I.325 of1979 which deals with acting allowances in the Public Service.

There is thus no contractual basis upon which the claim may be founded.

The statute itself makes no specific provision about acting allowances, nor is there any other statutory provision in terms of which a "rate for the job" is laid down which is applicable to the facts of this case.

It has not been suggested, that, the failure by the Corporation to pay an acting allowance amounted to an "unfair labour practice" as defined in the Labour Relations Act, nor have I been able to find, in section 8 of the Labour Relations Act, or in the Third Schedule to the Regulations (S.I, 368 of 1985) anything which would indicate that failure to pay an acting allowance in these circumstances is an unfair labour practice.

Accordingly, the provisions of section 111(2)(b) of the Labour Relations Act, which begin with the words "in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee…," are not applicable.

I guard against saying that Mr Moyana has a claim under the Civil Law. All that I would say is that if he has a claim based in some way upon a quantum meruit, as counsel for the appellant suggested, such a claim should be brought before the Civil Court.

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

The application before me is a special plea and exception.

The brief facts surrounding this claim are as follows:

The plaintiff was employed by the Confederation of Zimbabwe Industries reporting to the first defendant who was its President and Chief Executive Officer. On 18 June 2014, the plaintiff issued summons against the two defendants claiming damages for shock, non-patrimonial damages, post traumatic damages and pain and suffering.

The plaintiff claims that during the course of her employment with the second defendant, which ran between September 2002 and June 2003, she was sexually harassed by the first defendant who would pester her for an improper relationship. She claims that her resistance to the sexual advances culminated in the termination of her employment by the first defendant for a petty offence.

She challenged the dismissal.

The matter ended up at arbitration. An arbitrator ruled in her favor after having found that she had been sexually harassed by the first defendant. The arbitrator ordered the defendants to jointly compensate her for the damages she had suffered as a result of the sexual harassment....,.

The jurisdiction of arbitrators, when dealing with unfair labour practices, is limited to stopping the conduct complained against. The role of the Labour Court and arbitrators, when dealing with claims involving sexual harassment, is to make a finding on allegations of unfair labour practice and only seek to stop the practice.

The Labour Court or tribunal does not have jurisdiction to assess damages arising from a complaint of an unfair labour practice.

Similarly, a Labour Court or tribunal faced with a complaint of sexual harassment cannot proceed and make an award for damages arising out of the sexual harassment.

The claim for damages was never properly before the arbitrator.

The arbitrator erred in dealing with the issue regarding damages suffered as a result of the sexual harassment as damages were not part of the arbitrator's terms of reference. His terms of reference were clear that he was required to deal with the unfair labour practice only. He dealt with the claim for damages out of his own initiative and wrongly so. He went on a frolic of his own.

The award was subsequently set aside by this court on the basis that the arbitrator lacked jurisdiction to award civil damages.

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

IntroductionThe plaintiff claims a default judgment for sexual harassment. She is unrepresented.The matter appeared on the unopposed motion roll on 20 October 2021. It was one of several such appearances. In the past, the matter would be removed from the roll for one reason or other. The matter has had ...

Introduction

The plaintiff claims a default judgment for sexual harassment. She is unrepresented.

The matter appeared on the unopposed motion roll on 20 October 2021. It was one of several such appearances. In the past, the matter would be removed from the roll for one reason or other. The matter has had a long and turbulent history. The plaintiff says the wheels of justice have turned ever so slowly for her.

There can be no denying that.

She has been to this court. She has been to arbitration. She has been to the Supreme Court. She is back in this court. She strives for closure. Any lesser mortal would probably have given up. Plainly, the plaintiff is no lesser mortal. Her tenacity and fighting spirit have moved mountains. She is still fighting. This judgment only settles half the case. The other half still continues.

I shall explain.

Nature of Claim

The plaintiff has pleaded sexual harassment at the work place in 2002 to 2003. Then, she was employed by the second defendant. She alleges that sexual harassment of female employees at the second defendant's workplace was rampant. She says, as against herself, the first defendant was the sole culprit. He was the Chief Executive Officer. She was his personal assistant.

She says despite reporting him, the second defendant, through its President, was flippant, if not contemptuous.

Her claim is for USD500,000 [five hundred thousand United States dollars]. It is against both defendants.

Initially, they both defended vigorously. But, by and by, she barred the first defendant in default of a plea. That did not just happen. It was after sweat and blood. The details emerge later. But, having barred the first defendant she now seeks a default judgment as against him only.

As against the second defendant, the case continues. At the time of this judgment, it was poised for a pre-trial conference.

Details of the Claim

The sexual harassment was over some nine months. It started when she was still on probation. She got employed by the second defendant in September 2002. She got fired in July 2003. It was an unfair dismissal. The first defendant engineered it all. He schemed it. She had reported him for the sexual harassment. He took revenge. The charges were trumped up.

The sexual harassment took the following forms:

(i) Inappropriate touching;

(ii) Unwelcome offensive jokes;

(iii) Invitation, by innuendo, to an inappropriate sexual relationship;

(iv) Receiving offensive telephone messages;

(v) Receiving pornography on the computer;

(vi) An attempt to kiss by force, causing an injury on the thigh in the process of resisting.

On record, there are several electronic messages from the first defendant to her. One e-mail, in January 2003, at 12:16 hours, is worth reproducing. On it, a deliberately misleading subject caption was used, “Call from Mr Miller (Superior Holdings)”. The email goes:

“Rita,

I have used the above caption just in case. Please delete completely immediately after reading. Look at the time I am sending this note – just to show you I could not sleep before writing this note to you.

Rita, I love you very much and wish you could be mine.

When I am taking a bath with Clara I always pretend it's you; the torture is unbearable. It hurts me that when I touch your lovely hand you cringe and ask me to stop. Do I repulse you? I desperately need to kiss you.

Shamwari, if I do get dismissed, it will be because I would like to do whatever I can for the person I care for most - you.

Right now, I am under pressure to balance the budget of CZI. You have just completed your probation, and, according to CZI rules, you are not eligible for the general increase for permanent staff, but the small adjustment that is in your appointment letter. I am bending the rule – for you; please hold on tight to me – if we crash, we crash together.

I am awarding you the same percentage increase as everybody else. I am defending it against the treasurer this morning. Doing so will cost CZI an extra $3 million in employment and other costs for the three people involved. The others are lucky to be associated with you. This will wipe out the surplus we were going to make after selling the Land Rover. The treasurer had made his recommendations following the rule and I have asked Venek! ai to make the change before he comes for the final meeting this morning.

I feel guilty as it is no right to expropriate you from your husband, but, unfortunately…,. Please God help me on this one as it has been giving me sleepless nights.

You are the love of my love. I will do anything for you.”

The plaintiff says when she reported the sexual harassment to the then President of the second respondent, the response was ambivalent. When she tried to follow up she was told off. The President is said to have retorted, that, as a married woman, she should be ashamed to say that she had been sexually harassed. That hurt, she says.

Litigation

Having faced a brick wall, the plaintiff turned to the law. She brought the matter on arbitration. The arbitration went on for years. There were several sittings. She says the defendants were employing delaying tactics. They would seek postponements. They would offer to talk an out of court settlement but would renege. They would miss some sittings. They would not file documents timeously, or at all. But she persisted. Eventually, she got an award.

Among other things, the arbitral tribunal found that she had been unfairly dismissed. It also found that she had been sexually harassed.

That was in March 2014.

In June 2014, she instituted the present proceedings. The defendants were barred for late noting of an appearance to defend. They applied for condonation. When granted, they took a special plea in bar.

They alleged the plaintiff's claim had become prescribed. They calculated the period of prescription from 2002, when the sexual harassment occurred. As a result, they came up with eleven years. Prescription for an ordinary debt is three years. This court agreed with the defendants. Under judgment No. HH93-16, it dismissed the plaintiff's claim. It said the cause of action had arisen in 2002 to 2003 when the sexual harassment had occurred. It upheld the special plea of prescription.

The plaintiff appealed.

Under Judgment No. SC69-18, the Supreme Court disagreed with the defendants. It premised its judgment on section 17 of the Prescription Act [Chapter 8:11]. In terms of this provision, and in paraphrase, the period of prescription, in respect of, among other things, a debt which is the subject matter of proceedings on arbitration, is extended for one year from the end of those proceedings.

The Supreme Court allowed the plaintiff's appeal on the basis that her claim in this court had been instituted barely three months after the end of the arbitration, i.e. well before prescription had run the full course.

After allowing the appeal, the Supreme Court gave the defendants ten days to plead over to the merits of the plaintiff's claim. The first defendant missed the deadline. He applied for condonation a record four times: two in this court and the other two in the Supreme Court. He completely botched it. Eventually, condonation was firmly and finally refused by this court under Judgment No. HH592-20.

The first defendant was permanently barred.

The first defendant, having been barred in default of a plea, the plaintiff made attempts to set the matter down for a default judgment against him. Early attempts were unsuccessful for one reason or other. One of them, as depicted by a judgment of this court, under HH392-21, was that her causa for seeking a default judgment had been incorrect. She had sought a default judgment on the basis of a failure to file an appearance to defend timeously. Yet, the correct causa had been the failure to file a plea within the ten days prescribed by the Supreme Court.

Eventually, the plaintiff succeeded in setting the matter down on the unopposed motion roll.

In the company of the newly appointed judges, NDLOVU J, DEME J and KATIYO J, who were on induction, I granted the relief sought but reserved judgment on quantum.

Here now is the judgment on quantum.

Sexual harassment as an actionable wrong

The Labour Act [Chapter 28:01] provides for sexual harassment as an unfair labour practice by an employer or any other person. In terms of section 8(g) and (h), an employer commits an unfair labour practice if he, among other things:

(i) Demands from an employee, sexual favours as a condition of improving the remuneration or other conditions of employment of the employee;

(ii) Engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials at the workplace.

This judgment is not concerned with whether or not an unfair labour practice was committed against the plaintiff. That enquiry was settled by the arbitration. It was confirmed by the Supreme Court.

At any rate, in the absence of a plea, that enquiry is not before the court.

The reference, in this judgment, to section 8 of the Labour Act, is, inter alia, for the purposes of showing that sexual harassment is an actionable wrong in terms of our labour laws.

So, the one question is: if it is an actionable wrong under the labour laws, is it also an actionable wrong in delict? Is sexual harassment covered under the lex Aquila; that old Roman law that provided for compensation for injury caused by someone's fault?

The other question is: if sexual harassment is covered under the lex Aquila, what would be the quantum of the damages? How are they assessed?

Sexual harassment as a species of non-patrimonial loss

Sexual harassment is an actionable wrong under the lex Aquila. For damages to be recoverable, the plaintiff must have suffered some recognisable injury. Such injury is not confined to physical damage. Mental damage is also included. Under an ordinary delictual wrong causing bodily injury there is already recognisable a claim for pain, shock, suffering and loss of the amenities of life.

Sexual harassment causes pain. It results in shock. It is a kind of injury to the victim's person. That injury can lead to loss. Such loss is non-patrimonial. Non-patrimonial loss is:

“…, the diminution, as the result of a damage-causing event, in the quality of the highly personal (or personality) interests of an individual in satisfying his or her legally recognized needs, but which does not affect his or her patrimony.”

VISSER & POTGIETER: Law of Damages, 3rd ed., Juta…,.

The above authors classify emotional shock as psychiatric injury…,.. Pain and suffering is part of the emotional shock. But, emotional shock can also lead to further recognisable psychiatric conditions such as insomnia, anxiety, neuroses, hysteria, depression, and the like.

Emotional shock of short duration is disregarded if it does not have any real impact on the health of the plaintiff. The loss of the amenities of life is also part of the non-pecuniary damage.

Loss of amenities refers to the loss of the ability or will to participate in the general or specific activities of life and to enjoy life as one did previously…,. Included in this kind of loss are adversities like sexual impotence, loss of marriage opportunities, loss of general health, change of personality, loss of intellectual function, the difficulty experienced in the exercise of one's profession, and so on.

The English case of White v Chief Constable of South Yorkshire 1999 (2) AC 455 recognised the right to claim damages for psychiatric injury but, of course, within certain limits. In the judgment by LORD STEYN is the following statement:

“Courts of law must act on the best medical insight of the day. Nowadays, courts accept that there is no rigid distinction between the body and mind. Courts accept that a recognizable psychiatric illness results from an impact on the central nervous system. In this sense, therefore, there is no qualitative difference between physical harm and psychiatric harm. Any psychiatric harm may be far debilitating than physical harm.”

I agree with those observations.

In South Africa, KHAMPEPE J, writing the unanimous decision of the Constitutional Court in McGregor v Public Health & Social Development Sectorial Bargaining Council & Ors CCT270-20 introduced the judgment as follows:…,.

“Sexual harassment is the most heinous misconduct that plagues a workplace.

Although prohibited under the labour laws of this country, it persists. Its persistence and prevalence 'pose a barrier to the achievement of substantive equality in the workplace and is inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality, and the advancement of human rights and freedoms…, and non-sexism'.

Not only is it demeaning to the victim, but it undermines their dignity, integrity, and self-worth, striking at the root of that person's being.”

I also agree.

Section 51 of our Constitution guarantees the right to human dignity. It says every person has inherent dignity in their private and public life, and the right to have that dignity respected.

It is axiomatic that sexual harassment, especially at the workplace, strips the victim of his or her dignity. It degrades her (most victims are female).

It turns her into an object of sexual gratification.

It strips her of her right to personal security as contemplated by section 52 and section 53 of the Constitution. Section 52 says every person has the right to bodily and psychological integrity, which includes, among others, the right to freedom from all forms of violence from public or private sources.

Section 53 guarantees the freedom from, among other things, inhuman or degrading treatment.

Therefore, a claim for damages for sexual harassment is an attempt to vindicate such of the constitutional and other rights as will have been frittered away by the defendant.

Assessment of damages for sexual harassment

To succeed in a claim for damages under the lex Aquila in general, the plaintiff must establish the following factors:

(i) That the defendant committed a wrongful act;

(ii) That the plaintiff suffered patrimonial loss, which is actual loss capable of pecuniary assessment;

(iii) That the defendant's act caused the loss suffered by the plaintiff and that the harm occasioned was not too remote from the act complained of;

(iv) That the responsibility for the plaintiff's loss is imputable to the fault of the defendant, either in the form of dolus (intention) or culpa (negligence):

See Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H)…,.

The lex Aquila is extended to cover non-patrimonial loss.

Compensation is designed to help the plaintiff overcome, as far as money can, the effects of his or her injuries. The court takes account of the general principles as well as any other relevant peculiarity of the case before it. It has a wide discretion to award what, in the particular circumstances, should be fair, reasonable, and adequate.

In White v Chief Constable of South Yorkshire 1999 (2) AC 455, LORD STEYN said:

“In an ideal world, all those who have suffered as a result of the negligence ought to be compensated. But, we do not live in Utopia: we live in a practical world where the tort system imposes limits to the classes of claims that rank for consideration as well as to the heads of recoverable damages.

This results, of course, in imperfect justice but it is by and large the best that the common law can do.

The application of the requirement of reasonable foreseeability was sufficient for the disposal of the resulting claims for death and physical injury. But, the common law regards reasonable foreseeability as an inadequate tool for the disposal of claims in respect of emotional injury.”

In our jurisdiction, the general principles laid out in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC), in respect of pain and suffering, loss of amenities, and disfigurement should also apply to the assessment of damages for sexual harassment.

Our Supreme Court said translating personal injuries into money is equating the incommensurable. The assessment of damages is one of the most perplexing task a court has to discharge. The broad principles that have been sampled from the several authorities here and abroad are:

(i) General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

(ii) Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed.

(iii) Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations.

(iv) The court is entitled, and it has the duty, to heed the effect its decisions may have upon the course of awards in the future.

(v) The fall in the value of money is a factor which should be taken into account in terms of the purchasing power, but not with such adherence to mathematics as may lead to an unreasonable result.

(vi) No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper.

(vii) Awards must reflect the state of economic development and current economic conditions of the country. They should tend towards conservatism lest some injustice be done to the defendant.

(viii) For that reason, reference to awards made by the English and South African Courts may be an inappropriate guide, since conditions in those jurisdictions, both political and economic, are so different.

For sexual harassment in particular, I consider that some of the broad principles to be taken into account, in the assessment of compensation, should include:

(i) The nature, extent, duration, and seriousness or intensity of the injury to feelings;

(ii) The subjective circumstances and the gender of the victim and of the perpetrator;

(iii) The power dynamics or power relations and socio-economic imbalances between the victim and the perpetrator;

(iv) The age difference between the victim and the perpetrator;

(v) The pattern of behaviour or conduct of the perpetrator before or after the wrongful act;

(vi) The prevalence of such misconduct and the general conditions of employment;

(vii) The degree of the deprivation of the amenities of life as a result of the injury suffered.

See, generally, VISSER & POTGIETER, Law of Damages, 3rd ed, Juta…,.: see also McGregor v Public Health and Social Development Sectorial Bargaining Council & Ors CCT270-20.

The Plaintiff's Case

It being a claim for damages, the plaintiff has filed an affidavit of evidence in terms of Rule 60 of the old rules of this court, now Rule 25(1) of the new High Court Rules, 2021.

She has suffered psychological damage.

Amongst her pile of papers is a brief medical report from a general practitioner. There is also a more detailed one from a psychiatrist. The sum total of these reports is that, as a result of the sexual harassment, the plaintiff suffered severe post-traumatic stress disorder. This condition manifested almost immediately after the abuse. She experienced recurrent involuntary and intrusive memories of the traumatic event. Her pain was acute, with chances of recovery rated as being very poor. Treatment would be extensive and indefinite. During treatment, which included counselling, the plaintiff would often meander and get distracted. She suffered physical and emotional pain, with scarcely suppressed anger. During the counselling sessions, she would lose track of her answers midway through and would ask that questions be repeated.

The psychiatric report notes that the psychological damage is widespread.

Her personality has changed significantly. Before the incident, she was engaging, outgoing, and loved reading. She had a good sense of humour.

All that is gone.

She experiences recurrent nightmares. Her sleep is broken most nights. That leaves her drained physically and mentally. She was pursuing a law degree. She has had to drop. She has lost all confidence in herself.

There was another kind of collateral damage.

She says her marriage broke up; largely because of the change in her personality. Furthermore, being out of employment, and, therefore, without a steady income, she had to sell her immovable property to finance medical bills, legal costs, and the general upkeep of her family.

All this was in the psychiatric report.

She says she lost another immovable property that she had been buying. She says the situation was further compounded by the defendants' conduct after her unfair dismissal. She could not secure alternative employment thanks to the defendants' negative testimonials to her potential prospective employers.

The plaintiff's case seems such a textbook case. Manifestly, no amount of money seems adequate enough to compensate her loss.

The Quantum

Principles are easy to set out. They are not so easy to apply to the nuts and bolts of any given case.

Considering all that the plaintiff has gone through: what is the level of damages that is fair, adequate, proper, and reasonable?

At the end of it all, it boils down to the exercise of a value judgment by the court. It is a matter of discretion. A fair balance between the principles on the assessment of damages and the peculiar circumstances of the case should ensure that the exercise of that discretion is judicious, not capricious or whimsical.

As said by the court, in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC), the court must take heed of the effect of its decision upon future awards. But, at the same time, the court must not be seen to be paying lip service to values espoused in the Constitution on human dignity and integrity.

Compensation must be tangible.

In this case, that the sexual harassment happened and must be compensated for the harm it has caused is the one aspect. But, there are some other aspects of the case that have to be taken into account in arriving at the quantum:

The sexual harassment was persistent. There has never been an apology.

One thinks it would have been quite salutary and a measure of atonement for the injured brain. At the arbitration, the first defendant sought to dismiss his reprehensible conduct as mere jokes. He was callous. He engineered the plaintiff's dismissal from employment. After the incident, and the dismissal, she was not treated with sensitivity. Even discounting what the second defendant's President is alleged to have said to her [because that aspect is still to be decided], the person to negotiate an out of court settlement with the plaintiff, was none other than the first defendant himself.

He was non-committal. Inevitably, an out of court settlement was still born.

The power balance and socio-economic dynamics between the plaintiff and the first defendant were skewed.

He was the Chief Executive Officer. She was his personal assistant. He had immense power over her.

When litigation commenced, it was intentionally stalled. It is now almost two decades since the incident happened. It is only thanks to her tenacity that the case has remained alive in the legal system.

Undoubtedly, a measure of punitive damages is warranted. But, unfortunately, none of all this tells the court how much to award.

The plaintiff wants a globular USD500,000. This level of quantum has no precedence. But, again, damages for sexual harassment have no precedence at all in this jurisdiction - at least to one's knowledge.

However, there is a salient detail that has contributed to the decision on quantum.

In 2010, during without prejudice negotiations for an out of court settlement, when she was still legally represented, the plaintiff's monetary proposals for mutual termination of employment were $60,000 after tax, $100,000 for sexual harassment and $8,500 for legal fees.

Taking all factors into account, it is considered that the proper level of damages for the sexual harassment perpetrated by the first defendant upon the plaintiff, during the period of the plaintiff's employment with the second defendant, from September 2002 to June 2003, is USD180,000 [one hundred and eighty thousand United States dollars].

Therefore, the following order is hereby made:

(i) The first defendant shall pay the plaintiff the sum of USD180,000 [one hundred and eighty thousand United States dollars], or the equivalent thereof in local currency, convertible at the inter-market bank rate at the time of payment.

(ii) The first defendant shall pay the plaintiff the amount aforesaid together with interest at the prescribed rate from the date of this judgment to the date of payment.

(iii) The first defendant shall pay the plaintiff's costs of suit.

(iv) The first defendant's liability in terms hereof is joint and several with the liability of any other person as may be found liable to the plaintiff in respect of the sexual harassment which is the subject of this judgment.

Appealed
HH591-18 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: MATHONSI J

Section 12B of the Labour Act [Chapter 28:01] says:“(1) Every employee has the right not to be unfairly dismissed.(2) An employee is unfairly dismissed —(a) If, subject to subs (3), the employer fails to show that he dismissed the employee in terms of an employment code; or(b) In the absence ...

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

Section 12B of the Labour Act requires that an employee be dismissed in accordance with the provisions of a Code of Conduct. It provides as follows:“12B Dismissal(1) Every employee has the right not to be unfairly dismissed.(2) An employee is unfairly dismissed —(a) If, subject to subsection (3), the employer ...

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

The applicant was employed as the Chief Executive Officer (CEO) of the sixth respondent. The sixth respondent is Net One Cellular (Pvt) Ltd, a licensed provider of mobile and related telecommunications services in Zimbabwe. The first to fifth respondents are its directors.

Following a Board meeting held on 20 February 2020, a special resolution to suspend the applicant as Chief Executive Officer was passed. The applicant successfully obtained an interim court order suspending that resolution.

On 9 July 2020, the sixth respondent's Board of Directors wrote a letter to the applicant advising him that his suspension pending disciplinary hearing had been withdrawn and that he was now reinstated as Chief Executive Officer with no loss of salary or benefits.

In less than 24 hours of reinstatement, a letter terminating the applicant's employment on three months' notice was written by the same Board members of the sixth respondent and was delivered to the applicant.

Again, the applicant successfully obtained an interim court order on 15 July 2020, under case number HC3611/20, suspending the effectiveness of the letter of termination pending the hearing of the matter and its final determination on 4 August 2020.

The interim order has not yet been confirmed or discharged. Judgment is still pending in this court.

That notwithstanding, the first respondent, on behalf of the sixth respondent, wrote a letter to the applicant, on 21 December 2020, withdrawing the letter of termination of contract of 9 July 2020 and reinstating him as Chief Executive Officer. On the same date, but in a different letter, the first respondent wrote to the applicant again terminating his employment contract on three months' notice with immediate effect.

The applicant was advised that the President of the Republic of Zimbabwe had given his endorsement for his removal from office of Chief Executive Officer of the sixth respondent. The applicant was further advised that he would be paid in lieu of the three months' notice as his services were no longer required.

It is this letter which prompted the applicant to file the present urgent chamber application.

It is the applicant's averment that the letter of termination of his employment contract is illegal as his contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.

Furthermore, there is an interim court order by CHINAMORA J barring the respondents from giving effect to a similar letter which sought to terminate his contract of employment on notice.

In this application, the applicant is seeking, as against the respondents, a prohibitory interdict in the interim and a declaratur on the return day. The reliefs are couched as follows:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the letter dated 21 December 2020, authored by the 1st respondent, purportedly for and on behalf of the 6th respondent, addressed to the applicant, be and is hereby declared null and void.

2. Any processes taken pursuant to the said letter be and are hereby declared null and void.

3. That, any respondent(s) opposed to the granting of the Final Order be ordered to pay costs, jointly and severally, the one paying the others to absolved on a legal practitioner-client scale.

INTERIM RELIEF GRANTED

Pending the confirmation of the Provisional Order, the applicant be and is hereby granted the following relief:

1. That, the effect of the letter dated 21 December 29020, drafted by the 1st respondent for and on behalf of the board directors of the 6th respondent, be and is hereby suspended as well as any further processes taken in furthering its objects.

2. The respondents be and are hereby interdicted from publishing the illegal dismissal of/or termination of the applicant's contract of employment in terms of section 11(2) of the Public Entities Corporate Governance (General Regulations S.I.168 of 2018) and further interdicted from advertising applicant position in terms of section 8 of the same Statutory Instrument.

3. That, the respondents be interdicted from terminating the applicant's employment contract pending the final determination of this matter and case number HC3611/20.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the respondents or their legal practitioners by the applicant's legal practitioners.”

In short, in the interim, the applicant wants the respondents barred from terminating his employment contract pending the return date. He also wants the respondents barred from publishing his dismissal or termination of his employment contract and advertising his position. On the return date, the applicant will be seeking a declaratur that the letter of 21 December 2020, terminating his employment contract, is a nullity.

In response to the application, the respondents raised some points in limine which I deal with hereunder.

Lack of Jurisdiction

The respondents averred that this is a labour matter wherein the applicant is effectively seeking an order setting aside the termination of his employment contract on notice on 21 December 2020. The respondents contended, that, the applicant should challenge the termination thereof in terms of the Labour Act [Chapter 28:01]. The applicant ought to approach a labour officer who should determine whether or not there is need to follow due process when terminating an employment contract on notice. The ruling should thereafter be submitted to the Labour Court for confirmation or discharge in terms of the provisions of Amendment Act No.5 of 2015.

The Labour Court is set up as a specialist court to deal with employment matters in terms of section 172 of the Constitution.

This court has no jurisdiction to determine the applicant's complaint that his contract was terminated without regard to due process. This court has no inherent jurisdiction to deal with purely employment matters; its jurisdiction having been restricted by the Constitution which created the Labour Court as a specialist court to handle employment matters.

Counsel for the respondents submitted, that, in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 it was clarified that the High Court does not have jurisdiction to deal with labour matters. He referred to paragraph 47 of the judgment. It reads;

“On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe. The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.”

Counsel for the respondents argued, that, in casu, the applicant is claiming that he was unlawfully dismissed.

Referring to paragraph 42 of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, he submitted that the procedure for dealing with an unfair labour practice is to be found in section 93(5) of the Labour Act. Paragraph 42 provides:

“The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act. The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration or that failing, proceed in terms of section 93(5) of the Labour Act.”

In response, counsel for the applicant submitted that Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the judgment that the respondents seek to rely on, is not applicable to the present matter. The circumstances are different.

He submitted that whilst in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 the appellant had approached this court for an order that he be paid monies that were due to him arising out of his employment contract; in casu, the applicant is seeking an interdict, a prohibitory interdict to be specific. He makes that clear in paragraph 5 of his founding affidavit. The Labour Court cannot grant that relief. It has no jurisdiction to grant interdicts whereas the High Court has jurisdiction to grant such.

Counsel for the applicant further submitted that in any case the Labour Act is not the applicable statute in the applicant's case, but the Public Entities Corporate Governance Act [Chapter 10:31] and its General Regulations.

He submitted that this is in terms of Chapter 9, and more specifically section 197 of the Constitution of Zimbabwe (Amendment Act No.20) 2013 which provides for terms of office of heads of Government-controlled entities. Section 197 of the Constitution reads;

“An Act of Parliament may limit the terms of office of chief executive officers or heads of government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.”

Counsel for the applicant submitted that the Act of Parliament being referred to in section 197 of the Constitution is the Public Entities Corporate Governance Act, and not the Labour Act.

He submitted that section 16 of the Public Entities Corporate Governance Act is the provision which deals with the termination of the term of office of the head of a State-controlled commercial entity.

Counsel for the applicant further submitted that Chapter 9 of the Constitution and the Public Entities Corporate Governance Act do not prohibit the High Court from exercising jurisdiction in a matter such as the present one.

He further submitted that a reading of section 3(1) of the Labour Act shows that the Labour Act is not applicable to the applicant who is governed by section 197 of the Constitution. It was his argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197.

To begin with, it is pertinent to point out that counsel for the respondents did not dispute that the Public Entities Corporate Governance Act is the Act that was enacted to provide for the governance of public entities in compliance with Chapter 9 of the Constitution and in terms of section 197 thereof.

To resolve the issue of whether or not this court has jurisdiction in this matter, it is necessary to examine the provisions of section 3 of the Labour Act which deals with the application of the Act. It provides;

“(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.”

In City of Gweru v Richard Masinire SC56-18 BHUNU JA interpreted this provision.

He stated that it confers jurisdiction of the Act over all employees except those it expressly excludes; and those that are expressly excluded are:

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

2. Members of the Public Service.

3. Members of a disciplinary force of the State.

4. Any other employee designated by the President in a Statutory Instrument.

In casu, I do not believe that the applicant falls in any one of the excluded categories.

I am not in agreement with counsel for the applicant's argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197 of the Constitution. Rather, I am in agreement with counsel for the respondents argument that the applicant's conditions of service are not found in the Constitution, but in an Act of Parliament, the Public Entity Corporate Governance Act which was enacted in compliance with Chapter 9 of the Constitution, which chapter includes section 197.

One of the purposes of the Public Entity Corporate Governance Act, as can be seen from its preamble, is to provide a uniform mechanism for regulating the conditions of service of members of public entities and their senior employees.

Section 197 of the Constitution does not provide any conditions of service for employees of Government controlled entities. It simply says that An Act of Parliament may limit the terms of office of Chief Executive Officers or Heads of Government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.

Surely, this provision cannot, by any stretch of the imagination, be interpreted as providing conditions of service.

Clearly, the applicant does not fall within the category of employees that are excluded by section 3 of the Labour Act [Chapter 28:01]. The Labour Act is therefore applicable to him.

In the letter of termination of the applicant's employment contract, dated 21 December 2020, it is not indicated in terms of which law (whether the Labour Act or the Public Entities Corporate Governance Act) the employment contract was terminated.

The letter is silent.

However, the letter of termination of 9 July 2020, although it was subsequently withdrawn, made it clear that termination had been made in terms of section 12(4) of the Labour Act. On the other hand, the applicant avers that his contract of employment, as read together with section 16 of the Public Entities Corporate Governance Act, which provision provides for the dismissal of Chief Executive Officers, does not provide for the termination of his employment contract on notice.

The point that the applicant was making here was that his employment contract was terminated in terms of the Public Entities Corporate Governance Act which has no provision for the giving of notice.

I will not be drawn into making a determination of whether or not the notice was lawfully given. That is not the issue before me.

The issue that is before me is simply whether or not this is an employment matter which should be determined in terms of Labour Law.

If it is a labour or employment matter, I will decline jurisdiction on the basis of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 that I have already referred to above.

It was counsel for the applicant's further argument, that, even if the Labour Act is applicable to the applicant, this court has jurisdiction to deal with the present application because the applicant is seeking an interdict which only the High Court, and not the Labour Court, can grant.

As was correctly argued by counsel for the respondents, in deciding what relief an applicant is seeking, the court must look at the grounds of the application and the evidence adduced in support of the order prayed for; see Cainos Chingombe & Another v City of Harare SC177-20…,.

The fact that the applicant is seeking a particular relief is not itself decisive. In other words, what is important, or what matters, are the grounds on which the application is based rather that the order or relief that is being sought. Regard should be had to the substance of the application and the averments contained therein instead of the relief that is being sought.

The relief being sought cannot be the sole decider of whether or not a matter is properly before the Court. The decider is the dispute that has been placed for adjudication before the court.

In casu, in paragraph 5 of the founding affidavit, the applicant outlined the purpose of his application. He averred that he is seeking a prohibitory interdict and ancillary relief to the effect that the purported letter of dismissal be declared null and void. From paragraphs 16 to 18 he outlined what he termed “the complaint.”

In paragraph 16 he averred, that, “the letter of termination is illegal and has no force of law in that the applicant's contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.”

In paragraph 18, he averred, that, “the letter of termination…, is illegal and contemptuous in that it seeks to circumvent an extant interim court order…, of this Honourable Court under case number HC3611/2020…,.”

In the subsequent paragraphs, the applicant went on to make averments which deal with the requirements of an interdict.

In paragraph 19, he averred that he has a clear right to lawful process by the respondents which right was wantonly violated. On irreparable harm, he averred, that, in terms of his contract as read together with the Public Entities Corporate Governance General Regulations he cannot be dismissed on notice as purported in the letter of termination.

He further averred that assuming that the President gave his endorsement, the decision to dismiss him was illegal, arbitrary, and an affront to the laws of natural justice in that he was never invited to make any representations.

He averred, that, most importantly, the essential processes to terminate his contract were not compiled with.

He averred that he has rights in terms of the interim court order which interdicts the respondents from terminating his contract on notice.

He averred that he stands to suffer irreparable prejudice by the unlawful process.

What is clear from the applicant's averments is that although he avers that he is seeking an interdict, he is basically challenging termination of his employment contract by way of notice, a way which he says is not provided for in his employment contract and in the General Regulations of the Public Entities Corporate Governance Act.

He is challenging the legality of the termination process.

He says it was unlawful, hence his request for a declaratur that the letter of termination, and any processes taken pursuant to the said letter, are null and void.

I take the view that this is a dispute that relates to the employment relationship between the applicant and the sixth respondent. The dispute is whether or not the applicant's employment contract was lawfully terminated.

Such a dispute falls for determination in terms of labour law under the Labour Act and its structures.

Section 2A of the Labour Act spells out the purpose of the Act as follows:

“2A(1) The purpose of this Act is to advance social justice and democracy in the workplace by —

(a) Giving effect to the fundamental rights of employees provided for under Part II;

(b)…,. [Paragraph repealed by section 3 of Act 7 of 2005]

(c) Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment;

(d) The promotion of fair labour standards;

(e) The promotion of the participation by employees in decisions affecting their interests in the work place;

(f) Securing the just, effective, and expeditious resolution of disputes and unfair labour practices.”

Section 2A(1)(f) of the Labour Act is pertinent. It seeks to secure a just, effective and expeditious resolution of employment disputes and unfair labour practices.

In terms of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the High Court has no jurisdiction in labour and employment issues. Clearly this is not a matter for an interdict and a declaratur.

Under the guise of seeking an interdict and a declaratur, the applicant is actually challenging the termination of his employment contract and seeking reinstatement as Chief Executive Officer (CEO) of the sixth respondent through the back door.

In view of the foregoing, I come to the conclusion that I have no jurisdiction to deal with this matter which is an employment matter.

In the result, it be and is hereby ordered that:

1. Jurisdiction is declined.

2. The applicant shall pay the respondents' costs.

Appealed
HH137-19 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: CHIKOWERO J

At the end of oral argument, on 13 February 2019, I upheld the special plea and dismissed the plaintiff's claim with costs. The background facts are as follows:

The plaintiff is a male Zimbabwean adult: so is the first defendant, the Executive President of the Republic of Zimbabwe until sometime in November 2017. The second defendant is the latter's spouse. The third defendant is a company duly incorporated in terms of the laws of Zimbabwe.

According to the plaintiff, the third defendant is the first and second defendants' investment vehicle.

On or about 1st January 2007, the plaintiff entered into an oral employment contract with the first and second defendants. In terms thereof, the plaintiff was employed by the two as their General Manager. Such employment was under the third defendant, the investment vehicle aforesaid. The material terms of the employment contract were these:

The contract, which was without limit of time, entailed the plaintiff performing, for the third defendant, all such acts as are customarily carried out by a person in the position of a General Manager. Further, the plaintiff was also required to, and did, undertake all such work as the first and second defendants would require of him - including that which had nothing to do with farming operations.

On 6 October 2015, and in breach of the terms of the employment contract, the first and second defendants, by dint of illegitimate influence, force, and might required the plaintiff to relinquish his position.

However, he was ordered to continue working, for no salary, until 6 November 2015.

As a result of the unlawful termination of the employment contract, the plaintiff claimed, from all three defendants, damages for the period 1st October 2015 to 6 November 2015. The amount claimed was $8,909=14, computed on the basis of the plaintiff's salary. The plaintiff also claimed $69,492=69 being cash in lieu of leave, arising from accrued leave days at the rate of 25 days per year. The total period covered by this claim spans from 1st January 2007 to 6 November 2015.

Further, the plaintiff alleged, that, at the time of the termination of the employment contract, the plaintiff was entitled to the contractual benefit of a motor vehicle. Consequently, the plaintiff claimed payment of the sum of $90,000 averring that as the value of the motor vehicle.

Finally, the plaintiff alleged, that, upon the enforced termination of the employment contract, the first and second defendants employed public media to denigrate the plaintiff at various gatherings.

To the plaintiff, this imperilled his future prospects of employment.

The plaintiff complains that the acts of the defendants, in interfering with his employment prospects, are wrongful and deliberate, and resulted in the plaintiff losing potential employment. The damages claimed in this regard are in the sum of US$588,000.

To this suit, the defendants filed a special plea in bar.

In so far as the defendants are concerned, the High Court has no jurisdiction to entertain this matter as it is a purely labour dispute in which the Labour Court is the Court of first instance in terms of section 89(6) of the Labour Act [Chapter 28:01].

The cause of action involves an allegation of non-payment of post termination of employment wages and other benefits, as set out in section 13 of the Labour Act; which allegation, if proved, would amount to an unfair labour practice.

Further, the defendants averred, the procedure for dealing with allegations of unfair labour practices is set out in section 93 of the Labour Act meaning that the matter must be dealt with by the Labour Court.

The High Court has had its jurisdiction ousted by section 89(6) of the Labour Act [Chapter 28:01].

The defendants averred that the intention of the legislature, in enacting section 13(1) of the Labour Act, was to enable an employee who alleges he is owed terminal benefits to use those provisions to enforce payment. Parliament created the necessary machinery in the Labour Act to deal with issues of non-payment.

The defendant further averred, that, in as much as the High Court has original jurisdiction to deal with civil matters, as set out in section 171(1) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013, this does not usurp the power of the Labour Court.

Parliament has, by virtue of sections 172(2) and (3) of the Constitution, circumscribed matters over which the Labour Court has exclusive jurisdiction to the exclusion of other courts, the High Court included, so pleaded the defendants.

Resultantly, I was urged to uphold the special plea and dismiss the entire claim with costs on the higher scale.

Analysis

This court has interpreted sections 171(1)(a) and 172(2) of the Constitution to mean, that, although the High Court has original or inherent jurisdiction in respect of all civil matters in Zimbabwe, in so far as labour matters are concerned, the intention of the legislature is that the Labour Court be the court of first instance: Stanley Machote v Zimbabwe Manpower Development Fund HH813-15; Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H) and Triangle Limited and Others v Zimbabwe Sugar Milling Industry Workers Union and Others HH74-16.

I agree with counsel for the defendants, that, the drafters of the Constitution deliberately separated civil and labour causes in sections 171(1)(a) and 172(2) of the Constitution.

While the High Court's original jurisdiction in civil matters was constitutionally entrenched in the former provision, the Constitution went on to provide for a specialized Court to deal with labour and employment disputes, at first instance, in the latter provision.

The Labour Court is that specialized Court.

The Constitution recognizes the distinction between labour matters and civil matters.

My understanding of the National Employment Council for the Construction Industry v Zimbabwe Nantong International (Private) Limited SC01-18 judgment is that the Supreme Court left open the question of the jurisdiction of the Labour Court vis-a-vis the current Constitution.

I am aware that section 13 of the High Court Act [Chapter 7:06] reads:

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

My construction of this provision, in conformity with section 171(1)(a) and 172(2) of the Constitution, is that labour matters are excluded from the “all matters within Zimbabwe.”

Any other interpretation would mean the High Court Act, in this regard, supercedes the Constitution. That cannot be so.

Indeed, section 13 of the High Court Act itself makes that section subject to any other law.

My view is that that other law is the current Constitution, particularly sections 171(1)(a) and 172(2).

I also hold the view that even if section 13 of the High Court Act were inconsistent with section 89(6) of the Labour Act, the latter would prevail by virtue of section 2A(3) of the Labour Act. It reads:

“2A Purpose of the Act

(1)…,.

(2)…,.

(3) This Act shall prevail over any other enactment inconsistent with it.”

With the foregoing in mind, I now examine each of the plaintiff's claims in turn. In doing so, I am mindful of the need to determine, in respect of each, whether the same is purely civil or labour/employment related.

The US$8,909=14 damages claim

I accept that this is not a claim for arrear salary, despite the fact that paragraph 2.1 of the declaration states that the computation is based on the salary the plaintiff was earning as at October 1st 2015. There was therefore no contract of employment to talk about for the period October 1st 2015 to November 6th 2015. But, my finding is that this claim remains a labour matter.

Compelling someone to work without being employed, and without therefore being entitled to any remuneration, is forced labour. Forced labour is defined in the interpretation section of the Labour Act to mean:

“any work or services which a person is required to perform against his or her will under the threat of some form of punishment.”

When a person is ordered to continue working for no remuneration, after the enforced termination of an employment contract, that, to me, is forced labour. It certainly is not voluntary work. It also is not work undertaken in terms of a contract of employment, for no such contract subsists.

It is for these reasons that I upheld the special plea in respect of this particular claim.

Cash in lieu of leave in the sum of US$69,492=69 for the period 1 January 2007 to 6 November 2015

Despite alleging that the employment relationship was terminated on 1 October 2015, the plaintiff claims cash in lieu of leave up to 6 November 2015.

I respectfully am unable to associate myself with the ratio decidendi in Chiweshe & Others v Air Zimbabwe Holding (Pvt) Ltd 2014 (2) ZLR 837 (H). It was therein held that outstanding salaries and allowances owed to ex employees rendered efforts to recover same a debt collection exercise, rather than a labour issue, because the employment relationship had ended.

Were I to follow that reasoning, it would mean, that, I would also find that the summons issued by the plaintiff, to recover the cash in lieu of leave, is also a step in debt collection.

Section 13 of the Labour Act precludes me from making such a finding.

Indeed, I am unable to see how, merely because the employment relationship has ended, a claim for cash in lieu of leave mutates from being founded on the terminated employment contract to being a pure civil debt. To hold otherwise would be akin to saying a claim founded on delict ceases to be delictual in nature once the wrong has been committed.

There are legion decisions, both by the Labour Court and the Supreme Court, where judgments have been granted in respect of claims for payment of cash in lieu of leave, properly treated as labour matters: see, eg. First Mutual Life Assurance Ltd v Muzivi 2007 (1) ZLR 325 (S).

I need only add that the only time that the High Court becomes seized with such matters is when dealing with applications for registration of such judgments for purposes of enforcement. Such applications are purely procedural, not substantive. In disposing of such applications, the High Court is not called upon to delve into the merits of the matter.

Quite clearly, I had no option but to uphold the special plea in respect of this claim.

The US$90,000 being the value of the motor vehicle benefit due to the plaintiff by the defendants

The benefit, being ex contractu, what I have said in respect of the claim for payment of cash in lieu of leave applies in respect of this claim with equal force. I, accordingly, need not say more.

US$588,000 being delictual damages due from the defendants to the plaintiff for loss of employment prospects and/or the impairment of economic prospects

I do not think the appellation “delictual” vis-a-vis this head of damages transforms it into a delictual matter. What was important to me was that the damages suffered were to the plaintiff's employment prospects. The claim therefore remained rooted in Labour Law.

The principles applicable in investigating the questions of liability and quantum of damages are Labour Law principles. There is a special platform for that.

It is the Labour Court.

Such factors would include the age, health, and qualifications of the plaintiff. The Labour Court, being a court of equity, is statutorily created and enabled to undertake that exercise: see generally Delta Beverages (Pvt) Ltd v Kudakwashe Murandu SC38-15.

Costs

As for the scale of costs, I accept that there has been no pronouncement by either the Supreme Court or the Constitutional Court on the jurisdiction of the Labour Court in light of the current constitutional provisions.

Nyahora v CFI Holdings (Pvt) Ltd 2014 (2) ZLR 607 (S) did not consider sections 171(1)(a) and 171(2) of the Constitution vis a vis the jurisdiction of the Labour Court and the High Court in respect of labour matters.

Further, Chiweshe & Others v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H) is just one of a number of High Court decisions to the effect that the High Court, being a court of inherent jurisdiction, can entertain any matter brought before it - labour matters included.

In light of this unhappy state of the law, and in the exercise of my discretion, I saw no justification in awarding punitive costs against the plaintiff.

The law needs to be authoritatively laid out. I am unable to fault the plaintiff for assisting in that endeavour. His submissions, although not finding favour with me, were invaluable in enabling me to dispose of the special plea.

Finally, I wonder why the Labour Court is established and called by that name if labour matters can continue to be dealt with by the High Court at first instance.

In the result, I ordered that;

1. The special plea is upheld.

2. The plaintiff's claim is dismissed with costs.

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

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

(b)–(d)…,. (not relevant)

(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)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

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

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

WHETHER APPELLANT'S CLAIMS A QUO FELL UNDER THE LABOUR ACT?

The first claim was for US$8,909=14

There can be no doubt this claim was labour-related. It is said, in the declaration, that, through illegitimate influence, force, and might the appellant was made to relinquish his position on 6 October 2015 but was however ordered to continue working for no outlay until 6 November 2015.

It was on that basis the appellant claimed “damages” for the period 1 October 2015 to 6 October 2015 in the sum of $8,909=14 computed on the basis of the salary that the plaintiff was earning.

Although called “damages”, it is clear that the claim is, in reality, for outstanding pay for work performed during the period in question. It is for that reason that the computation was based on the salary that the plaintiff had been earning prior to the termination.

It should be stressed, that, in terms of section 12 of the Labour Act, every person who performs work for any other person and is entitled to receive remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

The second was the claim for $69,492

This claim is for accrued leave days and is clearly a labour matter. The appellant accepts that this claim is essentially a labour matter.

The third was the claim for US$90,000

In terms of para 2:3 of the declaration, the appellant says he was entitled, by agreement, to a motor vehicle, or value of such motor vehicle, being $90,000. It is alleged that the respondents refused to allow the appellant to recover this benefit. There is no doubt this is a benefit that accrued to the appellant by virtue of his contract of employment and is clearly a labour matter.

The last claim is for US$588,000

This is said to represent damages for loss of employment prospects pursuant to the public media coverage which is said to have denigrated the appellant's personality. This claim, poorly formulated as it was, is clearly not labour related, and appears to be for delictual damages arising from defamatory statements made in the public media. The claim is not for damages in lieu of reinstatement.

The respondents accept that this claim does not fall to be determined under the Labour Act.

CLAIMS 1–3 CONSTITUTED AN UNFAIR LABOUR PRACTICE?

Section 13 of the Labour Act makes it clear that whenever any person's employment is terminated, such person shall be entitled to the wages and benefits due to him up to the time of such termination, including benefits with respect to outstanding vacation and notice period.

An employer shall pay such benefits as soon as is reasonably practical and failure to do so shall constitute an unfair labour practice.

The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act.

The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration, or, that failing, proceed in terms of section 93(5) of the Labour Act.

The first three claims were therefore matters that should have been handled by a labour officer in terms of section 93 of the Labour Act.

Clearly, the High Court was correct in holding that it had no jurisdiction to deal with these three claims. It was, however, wrong in upholding the plea in bar in respect of the last claim.

THE DISMISSAL OF THE CLAIM

It is the appellant's submission, that, after determining as it did that it had no jurisdiction, the court a quo should simply have declined jurisdiction and not dismissed the claim with costs. The respondents, in oral submissions, disagreed, stating that the dismissal was not final and that the appellant could still bring the matter before the appropriate court.

I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper.

The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss.

In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC71-14, this Court remarked as follows:

"It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal, on the latter basis, is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.”…,.

I cannot agree more with the above remarks.

COSTS

Whether the High Court has jurisdiction in all matters, including matters of labour and employment, has been the subject of conflicting decisions of the High Court. Until such time as this Court were to make a definitive pronouncement on the matter, parties to litigation were at liberty to cite cases on both sides of the divide that supported their respective positions on the matter.

It seems to me, that, in the circumstances, each party should bear its own costs, both in the court a quo and this Court.

DISPOSITION

On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe.

The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices, which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.

Accordingly, it is ordered as follows:

1. The appeal succeeds, in part, with each party paying its own costs.

2. The portion of the judgment of the court a quo upholding the plea-in-bar in respect of the claim for damages in the sum of $588,000 and dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

3. The remaining portion of the judgment of the court a quo upholding the plea in bar in respect of the claims for US$8,909=14, US$69,492=69 and US$90,000 is upheld.

4. The claim for $588,000 delictual damages is remitted to the court a quo to be handled in terms of the rules of that court.

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.

On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from 11 November 2014, to be served from home i.e. the applicant was not to report for work but would nonetheless be paid his salary.

In the aforesaid notice to terminate the applicant's employment contract the respondent stated:

“…, the corporate hereby undertakes to pay the notice period and all outstanding payments due to you on a monthly basis spreading over a period of four months through the corporate's payroll until all such is extinguished in full. These payments shall be made subject to such statutory deductions as are applicable. A statement of account denoting how much you are entitled to shall be availed to you by the 30th November 2014. Kindly approach the human resources department for your termination clearances and statement of account, and affix your signature to the tear off below to signal your receipt of this letter…,.”

The letter of notice was delivered upon the applicant who refused to sign the tear off slip.

Nothing turns upon the applicant's refusal to sign the tear off slip because the validity of the termination being a unilateral act by the respondent (employer) would not require acceptance by the applicant (employee) through signing the letter. It is sufficient for its validity that the letter was conveyed upon the applicant.

By letter dated 29 November 2014, the respondent wrote to the applicant setting out the amounts which it acknowledged to be owing by it to the applicant. The letter referred to is attached as annexure 'C' to the applicant's founding affidavit and reads in material part as follows:

Re: Statement of account for Aswell Nyanzara EC No. BD1013

“We refer to the above matter.

Please be advised that Mbada Diamonds acknowledges owing you a total amount of USD$9,695=02 which was calculated starting from 1 February 2010 being the date of engagement. The detailed breakdown is as follows:

Item Value
1. Gratuity payable $1,331-95
2. 90 days of CILL payable $3,073-85
3. 0.00 months historic overtime $-
4. April & May 2014 overtime @ 1.5 $-
5. April & May 2014 overtime @ 2.0 $ 102-46
6. Back pay for June & July 2014 $ 576-00
7. Salary for September, October & November $2,305-38
8. 3 months using current work arrangement $2,305-38
Grand Total $9,695-02

Please note that all the above amounts are gross figures, and, as such, are subject to applicable statutory deductions. Mbada Diamonds will deduct any loans or amounts advanced to you from the net amount…,.

A Zindi (Mr)
The Human Resources Manager
For and on behalf of Mbada Diamonds”

As with the letter of termination of employment on notice, which the applicant refused to sign, he also did not sign the letter setting out the statement of account.

The applicant indicates, in his answering affidavit, that, he did not sign his own copy of Annexure C but signed the one which the respondent retained. He attributes his failure to sign the letter to the fact that he is a layman and thought it unnecessary to sign the copy which he retained and has attached to his application.

Although the respondent appears to take issue with the failure by the applicant to sign the statement of account in acknowledgment, it is, in my view, a matter or omission of no great moment because the authenticity of annexure 'C' is common cause between the parties.

I shall advert to analysing its contents later when I consider the jurisdictional issues raised by the respondent.

On 5 May 2015, the applicant filed the present court application whose heading reads 'COURT APPLICATION FOR PAYMENT OF MONEY'. The application is supported by the applicant's brief affidavit consisting of seven (7) paragraphs, the material ones which read as follows:

“4. On 11 November 2014, the respondent terminated my contract of employment on notice. A copy of letter of termination of contract of employment is attached hereto marked “B”.

5. On 29 November 2014, the respondent marked out my terminal benefits which amounted to $9,695=02. A copy of the statement of account from the Human Resources Manager is attached hereto marked 'C'.

6.1. Apart from the $9,695=02, the respondent owed me the following amounts;

(a) Night Allowances - $1,941=10 Annexure 'D'.

(b) Unrefunded portion of the pension fund - $799=20 Annexure “E”.

6.2. Therefore, the total amount of money which I am claiming from the respondent is $12,435=32 arrived at as follows;

7. I have not been paid a single cent from these moneys that are due to me despite demand on several occasions. The respondent has simply neglected, failed and/or refused to pay. I am applying for an order granting me the aforesaid sum for purposes of enforcement …,.

WHEREFORE, I pay for an order in terms of the Draft.

Thus sworn to at Harare this 5th day of May, 2015

Signed: Aswell Nyanzara”

Annexures 'D' and 'E' referred to in paragraph 6.1(a) and 6.1.(b) of the applicant's founding affidavit are, respectively, a letter whose date is not clear but is headed TERMINAL BENEFITS FOR ASWELL NYANZARA…,. NIGHT ALLOWANCE.

Annexure D is addressed to the respondent and is purportedly written by one E Munongerwa representing NUMQUI SWZ. There is a date stamp embossed National Union of Mines Quarrying Iron and Steel Workers of Zimbabwe. It appears that NUMQUISWZ is the abbreviation for the union. The letter purports to calculate the applicant's night allowance at $1,941 as the amount due to the applicant by the respondent.

Annexure E is a letter whose origins are not clear nor stated except that it is dated 4 March 2015, is addressed to the respondent's Principal Officer, a Mr Kennedy Bingwa, and is signed by or on behalf of Alackias Gavure – Administration Manager.

The letter is headed Mbada Diamonds Pension Fund: Retirement – Nyanzara Aswell (BD1013).

The author of Annexure E states in the letter, that, the sum of $1,834=58 was transferred into the “members” NMB Bank account number 290073502 on 2 March 2015. The payment represents the full commutation due to the member (comprising member and employer contributions together with interest thereon). The writer further states, in the letter, that, the 'balance retirement capital could not secure the statutory minimum monthly pension currently pegged at $30. The last paragraph of the letter reads as follows:

“The member has been refunded the 'funded portion' of his contributions made up to 30 November 2013. The unfunded portion, amounting $799-20, has not been refunded pending receipt of the outstanding contributions relating to the period 1 December 2013 to 31 May 2014.”

In the draft order, the applicant prays for an order as follows:

“IT IS ORDERED THAT:

1. Respondent shall pay applicant $12,435-32 together with interest thereon at the rate of 5% calculated from the date of service of the Court Application on Respondent to the date of payment together with costs of suit on attorney–client scale.”

The respondent, in opposing the application, and as shown upon a reading of its opposing affidavit, has raised two issues:

(i) The first issue is that the dispute between the parties is purely a labour matter for which this court has no jurisdiction to determine as the dispute is covered under section 13 of the Labour Act [Chapter 28:01]. As such, so the respondent asserts, the disputes should be dealt with in terms of section 93 of the Labour Act....,.

The applicant, in the answering affidavit, averred, that, the jurisdiction of this court arises from the fact that the respondent acknowledged its indebtedness to the applicant by letter dated 29 November 2014 i.e. annexure 'C' to the applicant's founding affidavit....,.

The issue of jurisdiction of this court, in labour matters, remains unsettled with judgments delivered by this court not being uniform or agreed.

It is not my intention or function to rationalize or harmonize conflicting decisions of this court. I will therefore confine myself to arguments raised herein.

The crisp issue before me is, that, the applicant, whose employment contract with the respondent was terminated, seeks the intervention of this court that he be granted an order suffering or ordering the respondent to pay him his terminal benefits which have remained unpaid since the date of termination of employment.

The applicant appreciates and accepts that the dispute before me is labour-related.

He however argues that this court should rule in his favour because there is no labour dispute to be determined but an enforcement of payment of terminal benefits. He argues that where the employer has acknowledged itself to be indebted to the employee, then the employee can seek relief from this court since the action would derive from an acknowledgment of debt, so to speak.

This court has ruled that the jurisdiction of this court has not been ousted in matters involving an admitted indebtedness by the employer to an employee - even if such indebtedness arises from a labour relationship. There is extensive discussion on the issue by KUDYA J in McCosh v Pioneer Corporation Africa Limited HH164-10: see also Madinda Ndhlovu v Highlanders Football HB95-11; Wellington Takawira v CZI Incorporated (Pvt) Ltd HH586-13.

KUDYA J did accept, and quite rightly so, that an acknowledgment of debt can found a cause of action. He cited the cases Chimutanda Motor Spares (Pvt) Ltd v Musare and Anor 1994 (1) ZLR 310 (H)…,; Gondwe v Bangajena 1988 (1) ZLR 1 (H)…,.; and Salisbury Municipality v Partington & Anor 1961 (3) SA Z18 (SR)…,.

The learned judge, however, found against the plaintiff, that, in his declaration, the plaintiff based his claim on unpaid arrear salary and not upon an acknowledgment of debt. That being so, he dismissed the claim on the basis that its determination was one for the Labour Court consequent upon the provisions of section 89(6) of the Labour Act [Chapter 28:01].

In Madinda Ndhlovu v Highlanders Football HB95-11 and Wellington Takawira v CZI Incorporated (Pvt) Ltd HH586-13, the learned judges, CHEDA J and UCHENA J…, granted the claims for payment of outstanding salaries/benefits after holding that the employers in both cases had acknowledged the debts and that therefore there was no labour dispute for determination under the Labour Act.

In casu, this is the applicant's line of reasoning.

If I follow the decisions of this court which have held that where the employer has acknowledged itself to be indebted to the employee in a liquidated amount, the employee can properly sue for relief in this court on the basis of such acknowledgment of debt; I do not, however, find that, in the present matter, the employer executed an acknowledgment of debt.

The documents relied upon by the applicant do not pass for a valid acknowledgment of debt.

By definition, an acknowledgment of debt is a document which contains an unequivocal admission of liability by the debtor. The amount owed by the debtor must be specified and so should the manner and time of payment. In essence, an acknowledgment of debt must pass the test of a liquid document, i.e a document which proves the debtor's indebtedness without extraneous or outside evidence.

In casu, the applicant relied on Annexure C as herein before quoted.

The said annexure states that the sum of USD$9,695=02 is a gross figure from which statutory deductions, loans, and advances will have to be calculated and deducted.

In my view, the document does not therefore pass the test of an acknowledgment.

It is arguable whether an order for payment subject to the stated deductions would not be appropriate. The applicant does not however ask the court to grant such an order but prays for payment to him of the whole amount of USD$9,695=02.

To make matters worse for the applicant, he also seeks payment of USD$1,941=01 in night allowances.

This amount was not acknowledged by the respondent and is disputed in the opposing affidavit by the respondent.

The applicant does not, in the answering affidavit, address the respondent's denial.

The same applies with regards the further sum of USD799-20 coined un-refunded portion of Pension Fund which the applicant claims.

Quite clearly, therefore, the respondent cannot, in the light of the definition of an acknowledgment of debt, be held to have acknowledged itself to be indebted to the applicant in the sum of USD$12,435=32 or in any of the individual sums of money which add up to the said USD$12,435-32 claimed in the draft order.

In passing, I considered the argument raised by the respondent, that, Annexure 'C' setting out how the figure of USD$9,695-02 was arrived at is marked 'Without Prejudice' and therefore should not be relied upon by the applicant as it is inadmissible.

It is not correct that in the law of evidence, it is a rule of thumb that a letter marked “without prejudice” cannot be disclosed or used in proceedings. The words 'without prejudice' ought to be considered as protecting the rights of the writer of the letter. In other words, the without prejudice statement or letter should not prejudice the applicant from adopting a contrary position from that it would have adopted in the without prejudice statement letter or communication.

I do not intend, however, to belabour the issue because of the view which I have taken of the matter, which view or position is favourable and therefore not prejudicial to the applicant, that, the letter in issue does not pass for an acknowledgment of debt since the amounts set out therein are subject to deductions which are not stated nor agreed to by the parties.

I have also considered the judgment of HUNGWE J in Mhangura Copper Mines Limited v Tayengwa Dugmore Muskwe HH443-15 and also took into account the fact that the respondent did not advance the issue of the admissibility of Annexure 'C' in its heads of argument nor indeed during oral argument.

The respondent was concerned more with the issue of the jurisdiction of this court to hear the matter.

Since the applicant's claim was essentially a claim for payment of terminal benefits arising from a terminated contract of employment, I asked the applicant's legal practitioner…, to address me on her understanding and interpretation of section 13 of the Labour Act [Chapter 28:01].

She submitted that whilst she noted that the section dealt with payment of wages and benefits upon termination of employment and the procedure to be followed, the applicant had proceeded on the basis of an acknowledgment of debt as there was no longer an employer/employee relationship between the parties.

Section 13 of the Labour Act reads as follows:

“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 his 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 the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation or death as the case maybe, including benefits with 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.”…,.

A simple reading of the section shows that the legislature has codified the cause of action involving a failure by an employer to pay, within a reasonable time, post-termination of employment wages and other benefits, as set out in the section, to the ex employee. The legislature has defined the cause of action.

A failure by an employer to pay shall constitute an unfair labour practice.

It appears to me, therefore, that, if the wrong of failure to pay the wages and benefits has been done to or suffered by the employee, his/her remedy lies in what the Labour Act provides as the corrective remedy to be followed and implemented when an unfair labour practice has been committed.

In the definition section of the Labour Act, an unfair labour practice is defined as “unfair labour practice” means an unfair labour practice specified in Part III or declared to be so in terms of any other provision of this Act….,..

Section 13 of the Labour Act, albeit falling under Part IV of the Labour Act, nonetheless forms part of the Act and is therefore “any other provision of this Act.”

The respondent's legal practitioner…, correctly submitted, that, the procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

In my analysis, the applicant's claim involved the failure by his ex employer to pay the applicant wages and benefits to which he is entitled. It matters not, in my view, that the employer may have acknowledged itself to be indebted to the employee nor signed a document to that effect by whatever name called. The fact is that what would have been admitted to in such a document will be unpaid wages or benefits.

For as long as the acknowledgment involves non-payment of wages and benefits, as listed in section 13 of the Labour Act, then the wrong done to the employee is as defined in the section, i.e. an unfair labour practise.

It being an unfair labour practice, it must be dealt with in terms of the Labour Act.

Section 89(1) of the Labour Act provides for the hearing, by the Labour Court, of applications as set out therein, and, in particular, for the referral of a dispute to a labour officer.

Section 89(6) of the Labour Act provides that only the Labour Court should act as the court of first instance in hearing and determining matters set out in section 89(1) of the said Act.

In this case, the applicant has brought an application before the High Court to remedy an unfair labour dispute. I hold that the applicant has brought his application before the wrong court and should have filed the same before the Labour Court.

The High Court, in my view, has had its jurisdiction in respect of this matter ousted by section 89(6) of the Labour Act i.e. to bring such an application to this court as a court of first instance.

It appears to me, that, the Labour Court is the correct forum for an employee to seek a remedy as a court of first instance where the employer has breached section 13 of the Labour Act.

The fact that the employer may have acknowledged its obligations, arising from its statutory obligations to an ex-employee, in a separate document which may be in the form of an acknowledgment of debt, does not detract from the fact that what is acknowledged to be owing are the terminal benefits.

The employee should not go forum shopping to the High Court or Magistrates Court seeking to sue on an acknowledgment of debt which, in essence, will be a case for enforcement of payment of terminal benefits.

The relationship of employer/employee can loosely be said to continue after termination of employment as envisaged in section 13(1) of the Labour Act but only for the purposes of giving effect to or enforcement of payment of terminal benefits.

The Labour Act further provides as follows in the ensuing sections:

“13(2) Any employer who, without the Ministers' permission, withholds or unreasonably delays the payment of any wages or benefits owed in terms of subsection (1), shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(3) A court convicting an employer of an offence in terms of subsection (2) may order him to pay –

(a) To the employee concerned; or

(b) To any person specified by it for the benefit of the employee concerned; in addition to any other penalty which it may impose, an amount which, in its opinion, will adequately compensate the employee concerned for any prejudice or loss he had suffered as a result of the contravention concerned, within such period and in such instalments as may be fixed by such court.

(4) The court may, at any time, on the application of the employer/employee or specified person concerned, for good cause shown, vary an order made in terms of subsection (3).

(5) Sections 348 and 349 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall apply, mutatis mutandis, in relation to the amount specified in an order in terms of subsection (3) as if such amount were a fine referred to in those sections.

(6) Nothing in this section shall be construed as precluding a person referred to in subsection (1) or his representative or the executor of his estate, as the case may be, from claiming over and above any wages or benefits to which he or his estate is entitled in terms of subsection (1) damages for any prejudice or loss suffered in connection with such dismissal, termination, resignation, incapacitation or death, as the case may be.”

Section 347 of the Criminal Procedure and Evidence Act provides for the imposition of imprisonment or community service in default of payment of a fine as more fully provided for therein.

Section 348 of the Criminal Procedure & Evidence Act empowers and gives a discretion to the High Court or Magistrates Court, where such court has sentenced an offender to pay a fine, to issue a warrant or writ addressed to the Sheriff or Messenger of Court as the case may be authorizing him to levy the amount of a fine by “attachment and sale of any movable property belonging to the offender,” notwithstanding that, “the sentence directs that in default of payment of the fine, the offender shall be imprisoned or shall be permitted to render community service.”

In summary, therefore, apart from an ex-employee taking steps to remedy the wrong committed by his ex employer in not paying the former his wages and benefits as provided for in section 13(1) of the Labour Act through the unfair labour practice route, the employee can also report such defaulting ex-employer to the police to be dealt with by the Criminal courts since the failure to pay wages and benefits without Ministerial permission or reasonable grounds is criminalized.

The Criminal Court, upon convicting a defaulting ex-employer, will act in terms of sections 347 and 348 of the Criminal Procedure and Evidence Act.

At the hearing of this application, I asked counsel for the applicant whether she had ever thought of using the criminal route to enforce her client's (the employee's) claim. Counsel readily admitted that she had not thought of utilizing the option.

There is a growing trend by employee representatives to rush to the High Court with labour matters involving non-payment of terminal benefits by employers to employees whose contracts of employment would have been terminated.

Ingenious arguments are raised to persuade the High Court to agree to exercise jurisdiction. Such ingenuity involves arguing, as in the present application, that the cause of action arose from an acknowledgment of debt, which, strictly speaking, would not be true. The argument, in some cases, has found favour with this court and jurisdiction has been exercised.

In my view, and as already stated, the non-payment of wages and benefits, as set out in section 13(1) of the Labour Act, whether reduced to writing or acknowledged in an acknowledgment of debt, should not change the true facts.

If, for example, the argument that non-payment of wages and benefits, which is clearly an unfair labour practice and a crime, changes its character once reduced into an acknowledgment of debt is accepted and that it is no longer a labour dispute, it means that the Employee can no longer report the Employer to be dealt with in terms of section 13(2) of the Labour Act i.e. to be prosecuted.

The intention of the legislature, in enacting sections13(1) and 13(2) of the Labour Act was clearly to enable an employee who is owed terminal benefits by his employer to use those provisions to enforce payment.

The legislature created the necessary machinery in the Labour Act to deal with the issues of non-payment by either leaving it to the employee to invoke the unfair labour practice route or the criminal route.

I will leave it to be determined another day whether it would be a defence for an employer to argue that a breach of sections 13(1) and 13(2) of the Labour Act can be defeated by a defence that the parties (employer/employee) are now governed by an acknowledgment of debt in their relationship.

I however hold that in my reading of the provisions of the Labour Act, such a defence would not hold sway.

Law Portal
Zimbabwe

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HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
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HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
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HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
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HH591-18 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
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SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
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Appealed
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HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
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HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
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Law Portal Zimbabwe

Unfair Labour Practices and the Constitutional Right to Fair Labour Practices re: Approach

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

Appealed HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD Ruled By: KUDYA J

SC200-97 : MUWENGA vs PTC Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

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SC33-13 : TENDAYI TAMANIKWA and FRANK TINARWO and EMMERSON PAMIRE and TENDAI MOMBESHORA vs ZIMBABWE MANPOWER DEVELPOMENT FUND Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

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View Appeal HH626-14 : THE NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED Ruled By: CHIGUMBA J

Appealed CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC05-12 : MASHONALAND TURF CLUB vs GEORGE MUTANGADURA Ruled By: ZIYAMBI JA, GARWE JA and GOWORA AJA

CC15-16 : BONIFACE MAGURURE and 63 OTHERS vs CARGO CARRIERS INTERNATIONAL HAULIERS (PVT) LTD T/A SABOT Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA JCC

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HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: TSANGA J

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Appealed HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: DUBE J

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View Appeal SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O. Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

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Appealed HH137-19 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: CHIKOWERO J

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED Ruled By: CHITAPI J

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS Ruled B

Law Portal
Zimbabwe

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC33-13 : TENDAYI TAMANIKWA and FRANK TINARWO and EMMERSON PAMIRE and TENDAI MOMBESHORA vs ZIMBABWE MANPOWER DEVELPOMENT FUND
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC14-17 : CHEMCO HOLDINGS (PRIVATE) LIMITED vs L TENDERE and TWENTY-FOUR OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA, and MAVANGIRA JA

View Appeal
HH626-14 : THE NATIONAL EMPLOYMENT COUNCIL FOR THE CONSTRUCTION INDUSTRY vs ZIMBABWE NANTONG INTERNATIONAL (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC05-12 : MASHONALAND TURF CLUB vs GEORGE MUTANGADURA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA AJA

CC15-16 : BONIFACE MAGURURE and 63 OTHERS vs CARGO CARRIERS INTERNATIONAL HAULIERS (PVT) LTD T/A SABOT
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA JCC

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE
Ruled By: MATHONSI J

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

SC00-89 : ART CORPORATION LTD vs MOYANA
Ruled By: GUBBAY JA, McNALLY JA and MANYARARA JA

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

Appealed
HH591-18 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: MATHONSI J

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

Appealed
HH137-19 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: CHIKOWERO J

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled B