Urgent
Chamber Application
CHIGUMBA
J:
Section
10 of Part 4 of the Sixth Schedule of the current Constitution
(saving and transitional provisions) provides that all existing laws
will continue in force but must be construed in conformity with the
Constitution.
In
my view, this means that any inconsistency between the current
Constitution and an existing law must be resolved in favour of
conformity with the Constitution.
This
renders section 89(6) of the Labour Act void to the extent of its
inconsistency with section 171(1)(a) of the current Constitution. The
inescapable conclusion is that the High Court now has concurrent
jurisdiction with the Labour Court to deal with purely labour matters
at first instance. It is up to the High Court to decline to exercise
that concurrent jurisdiction as a way of preserving and respecting
the specialized nature of the Labour Court until the Legislature
harmonises section 89(6) of the Labour Act with section 171(1)(a) of
the current Constitution.
It
is my view that as things currently stand the argument that the High
Court has no jurisdiction to hear purely labour matters at first
instance is not sustainable. It is my considered view that the High
Court, being a creature of inherent jurisdiction, by implication can
decline to exercise its jurisdiction in favor of a litigant for any
reason that it deems fit, in the interests of justice. I see no
reason why jurisdiction over purely labour matters at first instance,
in some circumstances, cannot be declined on the basis that there is
a specialized court which exercises concurrent jurisdiction and that
is where the litigant ought to go. In cases where litigation has
already been commenced initially before the Labour Court, it is
undesirable for this court to exercise jurisdiction over the same
matter as this will promote forum shopping and will be detrimental to
the administration of justice in the long run.
This
is an urgent chamber application for a mandatory interdict, in which
the following order is sought on an interim basis;-
That
respondent be and is hereby ordered to furnish applicant with the
following information within forty eight hours of this order being
granted;
1.
A schedule detailing the applicant's back-pay and benefits from the
period of March 2005 to 31 January 2016.
2.
The respondent's salary advice slips for the period 22 March 2005
to January 2016.
3.
The date and time at which applicant shall resume his duties.
4.
The date of payment of applicant's back-pay and benefits.
5.
The dates on and manner in which the applicant's salaries shall be
paid from the 1st
of February 2016 until applicant ceases to be entitled to a salary.
The
final order sought is for the respondent to show cause why a final
order should not be made on the following terms;-
Respondent
be and is hereby ordered;
6.
To immediately furnish the applicant with all information regarding
and relevant to the applicant's employment contract and conditions
of service when requested to do so.
7.
To fully comply with the judgments of the Labour Court handed down on
6 February 2008 and 22 January 2016 within two weeks of this order
being granted failing which the Director General (Chief Executive
Officer) of respondent shall be committed to gaol for a period of
three months for contempt of court.
8.
To pay costs of suit on a legal practitioner and client scale.
The
applicant is the holder of a doctorate in Engineering Science and the
respondent (SIRDAC) is a university situated in Hatcliffe, Harare.
The background to this application as set out in the founding
affidavit is that the applicant was employed by the respondent from
the year 2000 to 22 March 2005 as the director of the Building
Technology Institute (BTI) of the respondent. The Labour Court made a
finding on the 6th
of February 2008, that the respondent's dismissal of the applicant
was unlawful. The respondent was ordered to reinstate the applicant
with effect from 22 March 2005 the date of dismissal, without loss of
salary or benefits.
The
applicant alleges that the respondent has failed to comply with this
judgment by failing to reinstate him or to pay him his full salary or
benefits, or even to pay him damages in lieu of reinstatement in the
alternative.
The
applicant instituted proceedings in HC4544-08 for an order of
contempt to be made against the respondent's Director General. The
respondent, in response to that application, purported to 'reinstate'
the applicant by way of a letter dated 26 September 2008. The letter
was delivered to the applicant on the 7th
of October 2008.
It
is common cause that, despite the letter of reinstatement, the
respondent has not paid the applicant his salary or benefits, and
that, the applicant has not re-joined the respondent's staff, to
date.
On
26 June 2009, the respondent terminated the applicant's employment
by way of a letter. The applicant challenged this termination by way
of an application for review before the Labour Court, which granted
judgment in his favour on the 22nd
of January 2016 (rp13). That judgment was done by two Labour Court
Judges. They alluded to the judgment done by the same court on 6
February 2008 in which an order was made that the applicant be
reinstated with full benefits or alternatively be paid damages in
lieu of reinstatement. The Labour Court found that the parties should
go back to the original order of 6 February 2008 and allowed the
application for review, setting aside the decision of the
disciplinary committee of 26 June 2009.
The
applicant requires information pertaining to his salary arrears in
order to prepare an application for damages in lieu of reinstatement.
This information is in the possession of the respondent who is being
uncooperative. The applicant is afraid that the respondent will
continue to ignore the orders of the Labour Court with impunity.
Letters written to the respondent on 22 January 2016 and 3 February
2016 have gone unanswered.
The
applicant is of the view that he has no other remedy than to approach
this court on an urgent basis because he is wallowing in poverty
whilst respondent remains in contempt of the Labour Court orders.
At
the hearing of the matter, the respondent took the stance that this
matter was not urgent because the requirements of urgency were not
met on the papers, and that the application was devoid of merit
because the requirements of a mandatory interdict were again not
established.
It
was agreed by consent that the parties file heads of argument to
buttress their polarized position, when a preliminary point was taken
that this court lacked the requisite jurisdiction to deal with a
purely labour matter.
The
applicant filed its heads of argument on the 11th
of February 2016, and the respondent's heads were filed on 18
February 2016.
The
question that arose during the course of argument was whether in
terms of section 171(1)(a) of the Constitution of Zimbabwe Amendment
(No.20) Act 2013 the High Court now has jurisdiction as a court of
first instance to deal with purely labour matters. The applicant's
contention was that this was not a purely labour matter, the
application was for a mandatory interdict which the Labour Court
cannot grant.
It
is my considered view that the question of jurisdiction ought to be
settled before a decision is made as to whether or not the applicants
satisfied the requirements of urgency and then the merits of the
matter can be ventilated. Section 171(1)(a) of the current
Constitution provides that;-
“171
Jurisdiction of High Court
(1)
The High Court—
(a)
has original jurisdiction over all civil and criminal matters
throughout Zimbabwe;
(b)
has jurisdiction to supervise magistrates courts and other
subordinate courts and to review their decisions;
(c)…
(d)…”
Section
171(2) stipulates that;-
“(2)
An Act of Parliament may provide for the exercise of jurisdiction by
the High Court and for that purpose may confer the power to make
rules of court.
(3)…
(4)…”
The
wording of section 171(1)(a) has given rise to a new school of
thought that these provisions of the current Constitution have
restored the jurisdiction of the High Court over purely labour
matters at first instance. Section 89(6) of the Labour Act [Chapter
28:01]
provides that;-
“(6)
No court, other than the Labour Court, shall have jurisdiction in the
first instance to hear and determine any application, appeal or
matter referred to in subsection (1).”
The
provisions of section 172(2) the current Constitution provide, in
relation to the jurisdiction of the Labour Court;-
“172
Labour Court
(1)…
(a)…
(b)
…
(2)
The Labour Court has such jurisdiction over matters of labour and
employment as may be conferred upon it by an Act of Parliament.
(3)…”
Section172(2)
confers such jurisdiction on the Labour Court as may be found in the
Labour Act. The current Labour Act, to the extent that section 89(6)
is now inconsistent with section 171(1)a) requires express
re-alignment with the Constitution by the Legislature. While we wait
for its re-alignment with the Constitution, the Labour Act no longer
confers exclusive jurisdiction on the Labour Court over purely labour
matters at first instance.
The
High Court, having always had inherent jurisdiction which had been
expressly ousted by section 89(6) from dealing with purely labour
matters at first instance, now has concurrent jurisdiction with the
Labour Court to deal with purely labour matters at first instance.
This
is undesirable, not merely because the High Court is likely to be
inundated with labour matters at a time when it is grappling with
backlog of cases, but because the Labour Court was expressly created
to provide a streamlined, faster and cheaper remedy to both employers
and employees at first instance in purely labour matters. The
intention of the Legislature in setting up the Labour Court was to
create a specialized court to deal with such matters at first
instance. That intention will be circumvented if the current
situation is not rectified soon, that of concurrent jurisdiction with
the High Court.
Section
10 of Part 4 of the Sixth Schedule of the current Constitution
provides that;-
“10.
Continuation of existing laws
Subject
to this Schedule, all existing laws continue in force but must be
construed in conformity
with
this Constitution.”
In
my view, this means that any inconsistency between the current
Constitution and an existing law must be resolved in favour of
conformity with the Constitution. This renders section 89(6) of the
Labour Act void to the extent of its inconsistency with section
171(1)(a) of the current Constitution.
The
inescapable conclusion is that the High Court now has concurrent
jurisdiction with the Labour Court to deal with purely labour matters
at first instance. It is up to the High Court to decline to exercise
that concurrent jurisdiction as a way of preserving the specialized
nature of the Labour Court until the Legislature harmonises section
89(6) the Labour Act with section 171(1)(a) of the current
Constitution. It is my view that as things currently stand the
argument that the High Court has no jurisdiction to hear purely
Labour matters at first instance is not sustainable.
I
hold in this view, which I have previously expressed in the following
cases:- Innocent
Chitiki
v
Pan African Mining,
G Chiparaushe & 66 Ors
v
Triangle Limited and Triangle Staff Pension Fund.
Other
cases in which a similar view was expressed are:-
Christmas Mazarire
v
Old Mutual Shared Services,
Capri v
Maponga
I
found my brother judges views in CZI
v
Mbatha,
persuasive
that;-
“…to
the extent that the Constitution overrides any Act of Parliament,
there can be no doubt that section 171(1)(a) overrides section 89(6)
of the Labour Act. What this means is that by clear Constitutional
provision this Court has original jurisdiction over all matters
including those of a labour nature whereas prior to the new
constitutional order the Labour Court enjoyed exclusivity.”
The
submission made on behalf of the respondent, that section 172 of the
current Constitution should be read together with section 170 and
section 171, in the interests of achieving 'disambiguity', was
not persuasive to me.
Clearly
section 172(2) confers such jurisdiction on the Labour Court as may
be conferred on it by an Act of Parliament, for which we read the
Labour Act. It was submitted that a proper reading of section 172(2)
will show that the Labour Court derives its jurisdiction from section
172(2) and not from section 89(6) of the Labour Act.
With
all due respect to Mr Hwacha
for the respondent such a chicken and egg approach is most unhelpful
and will not resolve the issue in favor of restoring the exclusivity
of the Labour Court in purely labour matters at first instance. I am
grateful to counsel for the respondent for the guidance given in the
heads of argument with regards to the cannons of statutory
interpretation;- Re-Interpretation
of statutes;
“To
determine the purpose of the legislature it is necessary to have
regard to the Act as a whole and not to focus on a single provision
to the exclusion of all others. To treat a single provision as
decisive…might obviously result in a wholly wrong conclusion”.
And
Cox
v
Hales,
where
the court said that;-
“It
is right for a court not only to look only at the provision
immediately under the Constitution but any other which may throw
light upon it and afford an indication that general words employed in
it were not intended to be applied without some limitation.”
Madoda
v
Tanganda Tea Company Ltd;-
“By
adopting that approach to the interpretation section 7 of the code
the learned judge in the court a quo departed from the ordinary
grammatical meaning of the section, and therefore, erred. As Joubert
JA said in Coopers
& Lybrand & Ors v
Byrant 1999
(3) SA 761 (A) at 767 D-F;
'The
matter is essentially one of interpretation. I proceed to ascertain
the common intention of the parties from the language used in the
instrument. Various cannons of the Constitution are available to
ascertain their common intention at the time of concluding the
cession. According to the 'golden rule' of interpretation the
language in the document is to be given its grammatical and ordinary
meaning, unless this would result in some absurdity, or some
repugnance or inconsistency with the rest of the instrument.'”
The
same view was subsequently expressed by my brother McNally in
Chegutu
Municipality v
Manyora
1996
(1) ZLR 262 (S) @ 262 (S) @ 264 D-E where he said;
“There
is no magic about interpretation. Words must be taken in their
context. The grammatical and ordinary sense of the words is to be
adhered to, as Lord Wensleydale said in Grey
v
Perason
(1857)
10 ER 1216 at 1234,
'unless
that would lead to some absurdity, or some repugnance or
inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified so as to
avoid that absurdity and inconsistency, but no further.'”
I
find the wording of section 172(2) to be clear and unambiguous.
The
jurisdiction of the Labour Court is set out in the Labour Act. It is
accepted that the Constitution confers jurisdiction on the Labour
Court in matters of labour and employment but such jurisdiction
cannot be exclusive as long as section 89(6) of the Labour Act is
inconsistent with section 171(1)(a) of the Constitution, which
clothes the High Court with jurisdiction over ALL
civil and criminal matters.
That includes labour matters, unfortunately. No other interpretation
will do. Even the cannons of statutory interpretation cannot save the
previous exclusive jurisdiction over purely labour matters, at first
instance of the Labour Court. Jurisdiction over pure labour matters
at first instance is now shared, it is concurrent between the two
courts because that High Court's jurisdiction is no longer ousted
section 89(6) of the Labour Act.
I
cannot accept the submission made on behalf of the respondent that
section 89(6) of the Labour Act remains valid because it was enacted
in terms of section 172(3) of the current Constitution. That, in my
view, has no bearing on the question of the inconsistency of section
89(6) with section 171(1)(a) of the Constitution. It is my considered
view that the High Court, being a creature of inherent jurisdiction,
by implication can decline to exercise this concurrent jurisdiction
in favour of a litigant for any reason that it deems fit, in the
interests of justice. I see no reason why jurisdiction over purely
labour matters at first instance cannot be declined on the basis that
there is a specialized court which exercises concurrent jurisdiction
and that is where the litigant ought to go.
In
determining this question of concurrent jurisdiction over purely
labour matters at first instance, I did not find the remarks of my
brother Judge in the case of Fortunate
Chikoyo v
Richard Ndlovu, Charles Simbi, Chief Elections Officer &
Registrar of Voters
instructive
for the simple reason that the facts of that case are distinguishable
for two reasons.
Firstly
the jurisdiction in question was not original inherent jurisdiction
of this court versus jurisdiction conferred on an inferior court
which is governed by statute. The jurisdiction of the Electoral Court
was in terms of appeals and reviews. In my view the provisions of the
Electoral Court which the respondent seeks to be compared to the
provisions of section 89(6) the Labour Court, are different.
One
provision confers exclusive original jurisdiction, the other review
or appeal jurisdiction.
The
remarks made in a case where what was in comparison was the original
jurisdiction of the general division of this court and a special
division, the Electoral Court, of this same court, are surely
distinguishable from the relationship or jurisdiction disparity
between this court and an inferior court which does not enjoy
inherent jurisdiction.
It
is also my view that this is not a purely labour matter which is
being brought at first instance. The matter has already been
adjudicated on by the Labour Court, not once, but twice. Having
established that this court now enjoys concurrent jurisdiction with
the Labour Court over purely labour matters at first instance,
whereas previously its jurisdiction was expressly ousted in favour of
exclusive jurisdiction in favor of the Labour Court, it is not time
to consider whether this matter is urgent.
There
is a plethora of cases in which the question of what constitutes
urgency was exhaustively discussed, then settled. It has been held
that:
“Applications
are frequently made for urgent relief. What constitutes urgency is
not only the imminent arrival of the day of reckoning; a matter is
urgent if, at the time the need to act arises, the matter cannot
wait. Urgency which stems from a deliberate or careless abstention
from action until the deadline draws near is not the type of urgency
contemplated by the rules”. See
.
It
has also been held that:
“For
a court to deal with a matter on an urgent basis, it must be
satisfied of a number of important aspects. The court has laid down
guidelines to be followed. If by its nature the circumstances are
such that the matter cannot wait in the sense that if not dealt with
immediately irreparable prejudice will result, the court can be
inclined to deal with it on an urgent basis. Further, it must be
clear that the applicant did on his own part treat the matter as
urgent. In other words if the applicant does not act immediately and
waits for doomsday to arrive, and does not give a reasonable
explanation for that delay in taking action, he cannot expect to
convince the court that the matter is indeed one that warrants to be
dealt with on an urgent basis…” See
And,
In
my view, which I have previously expressed in other cases, in order
for a matter to be deemed urgent, the following criteria, which have
been established in terms of case-law, must be met: A matter will be
deemed urgent if:
(a)
The matter cannot wait at the time when the need to act arises.
(b)
Irreparable prejudice will result if the matter is not dealt with
straight away without delay.
(c)
There is
prima facie
evidence that the applicant treated the matter as urgent.
(d)
Applicant gives a sensible, rational and realistic explanation for
any delay in taking action.
(e)
There is no satisfactory alternative remedy.
The
applicant contended that the matter cannot wait because eleven years
is a long time and the dispute has taken too long to resolve
resulting in his being impoverished. He contended further, that he
will be irreparably prejudiced if the matter is not dealt with
straight away without delay. It is common cause that the applicant
treated the matter as urgent. The question for determination is
whether the applicant has no satisfactory alternative remedy.
The
certificate of urgency, which was signed by Mr.
Phineas Ngarava
states that the respondent is unjustifiably, unfairly and
unreasonably refusing to furnish the applicant with information
relating to his salary, back-pay and benefits, which refusal is in
contempt of the order of the Labour Court. This has resulted in
applicant being distressed because he has no other source of income.
The court can hear a matter urgently where the urgency arises out of
the need to protect commercial interests. See Silver's
Trucks (Pvt )Ltd v
Director of Customs & Excise.
The
respondent submitted that there is no justification for urgent relief
because the judgment of the Labour Court (LC/H/21/16) was served on
it on Monday 25th
January 2016 and this application was filed seven days later on 4
February 2016. The contention is that this application is premature
because the respondent has thirty working days within which to file
an application for leave to appeal and another fifteen days within
which to lodge an appeal after leave is granted. The respondent has
indicated to the applicant that it wishes to note an appeal and it is
of the view that it cannot be compelled to comply with a judgment
that it wishes to appeal against before its entitlement to appeal
expires. The respondent contends further, that the applicant has an
alternative remedy in the Labour Court and has not satisfied the
requirements of an interdict. What alternative remedies are provided
in the Labour Act?
Section
89(2)(c) allows the Labour Court to hear and determine any
application in terms of the Labour Act. In the exercise of its
functions, the Labour Court may make an order for payment of back-pay
calculated from the time when the dispute or unfair labour practice
arose. It has power to order payment of compensation to a prejudiced
employee. It can order reinstatement or damages in lieu of
reinstatement, or punitive damages (section 89(c)(i)-(iii), proviso
(i)-(iii). That is what the Labour Court did on the 6th
of February 2008. It ordered that the respondent reinstate the
applicant with effect from the date of dismissal without loss of
salary or benefits, or alternatively that respondent pay damages in
lieu or
reinstatement. The applicant was directed to approach the Labour
Court for quantification of damages. That is the alternative remedy
that is available to the applicant.
In
seeking to utilize this remedy, can the applicant be guided by the
provisions of section 90A which stipulate that the Labour Court shall
not be bound by the strict rules of evidence, and may ascertain
relevant facts by any means which the presiding officer thinks fit
and which is not unfair or unjust to any party?
In
other words, a finding that an applicant who is before us on an
urgent certificate has suitable alternative remedies would ordinarily
result in the applicant being struck off the urgent chamber roll and
referred to the ordinary court application roll. In this case such a
finding that an alternative remedy exists, does not in my view,
necessarily have to result in the matter not being heard urgently. I
say so because the applicant's contention is that the alternative
remedy is not suitable or adequate because of the paucity of evidence
available to the applicant regarding details of back-pay and
benefits.
With
all due respect to the respondent the issue is not whether or not its
right to appeal is being curtailed. The issue is whether the
applicant is able to mount a credible case for damages in
lieu of
reinstatement and payment of backdated salaries when he has no idea
what the salaries that he was entitled to actually were.
It
is trite that only this court can grant a mandatory interdict. Such
an interdict will compel the respondent to supply the information
required by the applicant in order to utilize his remedy in the
Labour Court, that of seeking payment of arrear salaries and damages
in
lieu
of reinstatement. See National
Railways of Zimbabwe v Zimbabwe Railway Artisans Union & Ors,
where
the following guidance was given;-
“As
a general statement, it is correct that the Labour Court has no
jurisdiction to entertain claims that are brought at common law. It
can only determine applications and appeals among others that are
brought in terms of the Act. Where, however a dispute can either
found a cause of action at common law, or in terms of the Act, a case
of apparent
concurrent jurisdiction between this court and
the Labour Court appears to arise (my
emphasis). I say appears to arise because the apparent conflict can
easily be resolved by paying regard to the overall intention of the
legislature in creating the Labour Court. In my view, in such a case,
the Labour Court's jurisdiction being special must prevail. It
would make a mockery of the clear intention of the Legislature to
create a special court if the jurisdiction of such a court could be
defeated by the mere framing of disputes into common law cause of
action where the act has made specific provisions for the same. In
my view, if the dispute is provided for in the Act, the Labour Court
has exclusive jurisdiction even if the dispute is also resolvable at
common law”. (my
emphasis)
This
case was decided in 2005, before the advent of the current
Constitution, and it would be interesting to see if the Supreme
Court's guidance remains the same when the provisions of section
171(1)(a) are taken into consideration.
For
purposes of determining whether an application for an interdict ought
to be dealt with by this court because it is a common law remedy
which the Labour Court has no power to grant, this case is indeed
instructive. See also DHL
International Private Limited v
Madzikanda,
Surface Investments Private limited v
Maurice Chinyani , .
The
requirements of an interdict are;
1.
A clear or definitive right-this is a matter of substantive law.
2.
An injury actually committed or reasonably apprehended - an
infringement of the right established and resultant prejudice.
3.
The absence of similar protection by any other ordinary remedy - the
alternative remedy must be; adequate in the circumstances; be
ordinary and reasonable; be a legal remedy; grant similar protection.
See
Tribac
(Pvt) Ltd v
Tobbacco
Marketing Board,
Setlogelo v
Setlogelo,
Flame Lily Investment Company (Pvt) Ltd v
Zimbabwe Salvage (Pvt) Ltd & Anor,
Boadi
v Boadi
& Anor,
Diepsloot Residents' and Landowners' Association & Anor v
Administrator Transvaal .
For
purposes of the interim relief sought, we need only be furnished with
proof on a prima
facie
basis.
The
applicant has a clear right which was affirmed by two judgments of
the Labour Court. It is common cause that the two judgments have not
been complied with so an injury has been committed against the
applicant to his prejudice as set out in the founding affidavit. We
have already found that although the Labour Act provides an
alternative remedy, it is not adequate, and does not grant the
applicant similar protection. Section 93 of the Labour Act only gives
a sitting Judge power to compel the production of evidence. It does
not assist a litigant to compel the production of documents or supply
of information which he requires for the preparation of his case.
For
these reasons, it is my view that the applicant has established the
requirements of an interdict and for that reason, it be and is hereby
ordered that;-
Respondent
be and is hereby ordered to furnish applicant with the following
information within forty eight hours of this order being granted;
1.
A schedule detailing the applicant's back-pay and benefits from the
period of March 2005 to 31 January 2016.
2.
The respondent's salary advice slips for the period 22 March 2005
to January 2016.
3.
The date and time at which applicant shall resume his duties.
4.
The date of payment of applicant's back-pay and benefits.
5.
The dates on and manner in which the applicant's salaries shall be
paid from the 1st
of February 2016 until applicant ceases to be entitled to a salary.
Gama
& Partners,
applicant's legal practitioners
Dube,
Manikai & Hwacha,
respondent's legal practitioners
1.
HH 656-15
2.
HH 196-15
3.
HH 187-14
4.
HH 92-15
