Civil
Appeal
HLATSHWAYO
JA:
1.
The sole issue for determination in this case is whether the first
respondent is an employer within the energy industry and is thereby
bound by the Collective Bargaining Agreement: Zimbabwe Energy
Industry, Statutory
Instrument 50 of 2012
(“the CBA”). The issue was placed before the Labour Court for
determination and it found that the first respondent is not an
employer in the energy industry and is thus not bound by the
requisite CBA. This is an appeal against that decision.
2.
The factual and legal basis upon which the appeal is founded is as
follows: The first to tenth appellants are members of the eleventh
appellant, a worker's union which is a party to the CBA. The first
respondent is a statutory body established in terms of section 3 of
the Energy Regulatory Act [Chapter 13:23] ("the Act").
The functions of the first respondent are spelt out in section 4 of
the Act and, in short, the first respondent's mandate is to regulate
the energy industry.
3.
The phrase "energy industry” is defined in section 2 of the
Act follows:-
“'energy
industry' means the persons in Zimbabwe who, in the private or
public sphere are concerned with the generation, procurement,
distribution, transportation, transmission and production of energy
to consumers thereof.”
4.
On 27 January 2012, a CBA was reached between the Zimbabwe Energy
Industry Employers' Association, the eleventh appellant and the
ZESA Technical Employees'Association, for the period 1 January 2012
to 31 December 2012. The salary scales flowing from the CBA were
produced on 27 February 2012 and they were circulated to all
employers, including the first respondent, for implementation. The
first respondent communicated to the eleventh appellant that it
had fully complied with the CBA in August 2012.
5.
However, the first respondent later reneged from such compliance
arguing that it did not belong to the energy industry and thus it
could not be bound by the energy industry CBA. The first respondent's
refusal to implement the CBA ignited a dispute between the parties,
which dispute was referred to conciliation.
6.
No settlement was reached and the matter was referred for
arbitration. The arbitrator found that the first respondent was bound
by the CBA. The first responded appealed against that decision on the
ground that the arbitrator dealt with a dispute which fell under the
exclusive jurisdiction of the Labour Court by virtue of section 46(a)
of the Labour Act [Chapter 28:01] which provides that any dispute as
to the extent or description of any undertaking or industry shall be
referred to the Labour Court for determination. The appeal was
allowed and the arbitral award was set aside.
7.
The appellants then made an application in term of section 46 of the
Labour Act for the determination of whether the first respondent
falls within the energy industry. The application was dismissed after
the court had found that the first respondent does not fall within
the energy industry and is not bound by the CBA.
8.
The present appeal was noted against the decision of the court a
quo.
9.
The appellants raised two grounds of appeal. At the hearing of the
matter one of the grounds was abandoned leaving only one ground, that
is:-
"The
court a
quo erred
at law in not making a finding that the first respondent is at law an
employer within the energy industry and accordingly bound by the
Collective Bargaining Agreement for Energy Industry".
10.
At the centre of the dispute between the parties is a CBA which the
first respondent refused to implement. It was argued on behalf of the
appellants that the definition of energy industry in section 2 of the
Act must be interpreted purposively to include the first respondent,
a regulator of the energy industry.
11.
It was further contended that the first respondent is an employer in
the energy industry and is thus bound by the CBA in terms of section
82 of the Labour Act.
12.
On the other hand, it was argued on behalf of the first respondent
that the CBA was not binding on it because it was not party to the
CBA. It was contended that the first respondent is not a member of
any of the trade unions that participated in crafting the CBA.
13.
It was further argued that the first respondent does not fall within
the energy industry because the definition of energy industry does
not include "regulation” which is the cardinal function of the
first respondent. While the nub of the appellants' contention in this
Court is that section 2 of the Act must be interpreted purposively to
include the first respondent, the court is not convinced by that
contention and below are the court's reasons for the position taken.
14.
It is an established principle of law that when interpreting a
statute, the first cannon of interpretation to be applied is the
golden rule of interpretation. This rule is to the effect that where
the language used in a statute is plain and unambiguous, it should be
given its ordinary meaning unless doing so would lead to some
absurdity or inconsistency with the intention of the legislature. A
provision of a statute should be given a meaning which is consistent
with the context in which it is found.
15.
This position was laid down in Chegutu
Municipality v Manyora 1996
(1) ZLR 262 (S) at 264 D-E,
where McNally JA 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 Pearson (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.'"See
also Mudada v Tanganda Tea Co Ltd 1999
(1) ZLR 374 (S) at 377.
16.
The same principles were expressed by this Court in Endeavour
Foundation & Anor v Commissioner of Taxes 1995
(1) ZLR 339 (S)
at p 356 F-G to 357 A where Gubbay CJ said:
“The
general principle of interpretation is that the ordinary, plain,
literal meaning of the word or expression, that is as popularly
understood, is to be adopted, unless that meaning is at variance with
the intention of the legislature as shown by the context, or such
other indicia as the court is justified in taking into account, or
creates an anomaly or otherwise produces an irrational result. See
Stellenbosch Farmers Winery Ltd v Distillers' Corp (SA) Lid &
Anor 1962
(1) SA 458 (A) at 476 E-F."
17.
The circumstances in which the court may depart from the golden rule
of interpretation were authoritatively laid down by Innes CJ in
Mudada,
at 915 in the following terms:
"...
it appears to me that the principle we should adopt may be expressed
somewhat in this way - when to give the plain words of the statute
their ordinary meaning would lead to absurdity so glaring that it
could never have been contemplated by the Legislature, where it would
lead to a result contrary to the intention of the Legislature, as
shown by the context or by such other considerations as the court is
justified in taking into account, the court may depart from the
ordinary effect of the words to the extent necessary to remove the
absurdity and give effect to the true intention of the legislature."
18.
In the instant case, the meaning of “energy industry” as
contained in section 2 of the Act is axiomatic, clear and
unambiguous. The energy industry consists of persons who are
concerned with the generation, procurement, distribution,
transportation, and production of energy to consumers. The ordinary
meaning of this definition is that the persons covered by it must be
in the business of providing the services listed therein to
consumers.
19.
Clearly, the list does not include the regulation of the energy
industry which is the key role of the first respondent. A reading of
section 4 of the Act shows that the first respondent deals with the
players in the energy industry.
This
is in contrast to the definition as the envisaged members deal with
and provide services directly to the consumers.
20.
The next enquiry then is, whether such an interpretation results in
absurdity or an inconsistency with the intention of the Legislature
warranting the court to adopt the purposive approach to interpret the
statute as suggested by the appellants. This question is answered in
the negative. What the legislature intended to be done or not to be
done can only be legitimately ascertained from that which it has
chosen to enact, either in express words or by reasonable and
necessary implication.
21.
This was well captured in Mukwereza
v Minister of Home Affairs & Anor 04-SC-027 at
paras 9 and 10, and 2004
(1) ZLR 445 (S)
in the following words:-
"E
A Kellaway, the learned author of 'Principles of Legal
Interpretation of Statutes, Contracts & Wills' looked at a
number of British and South African authorities on what is meant by
'Legislative intention' and concluded as follows at pg 175;
'In
summary, the purpose of the rules of construction is to discover the
intention of the law-giver, and such intention should be deduced from
the actual words used by the legislating body, its general plan and
its objects.'
GM
Cockram expanded on this theory at pg45 of his 'Interpretation of
Statues' third edition and stated that such objects must be
gathered from a comparison of its (the law's) several parts, as well
as from the history of the law and from the circumstances applicable
to its subject matter." (my emphasis)
22.
To the same effect but put refreshingly differently, in the case of
Buchanan
& Co v Babco Ltd
(CA) [1977] QBD 208 at 213 Lord Denning followed the method of
interpretation adopted by the European Court of Justice at Luxemburg,
thus:-
"They
adopt a method which they call in English by strange words - at any
rate they were strange to me – the 'schematic and teleological'
method of interpretation.
It
is not really so alarming as it sounds.
All
it means is that the judges do not go by the literal meaning of the
words or by the grammatical structure of the sentence. They go by the
design or purpose which lies behind it.
When
they come upon a situation which is to their minds within the spirit
-- but not the letter of the legislation, they solve the problem by
looking at the design and purpose of the legislation - at the effect
which it was sought to achieve. They then interpret the legislation
so as to achieve the desired effect. This means that they fill in
gaps, quite unashamedly, without hesitation. They ask simply: what is
the sensible way of dealing with this situation so as to give effect
to the presumed purpose of the legislation?
To
our eyes - short sighted by tradition - it is legislation, pure and
simple. But to their eyes, it is fulfilling the true role of the
courts. They are giving effect to what the legislature intended, or
may be presumed to have intended."
23.
In
casu,
it is no mistake that the legislature did not include the first
respondent in the definition. The legislature had a good appreciation
of what it intended to include in the definition of the energy
industry. This is so if regard is had to the fact that the creation
of the first respondent through section 3 of the Act was not novel.
Rather, the first Respondent is a successor of the Zimbabwe
Electricity Regulatory Commission and the Petroleum Regulatory
Commission. This is provided for in section 29(1) of the Act. It
follows that if the legislature intended the first respondent to be a
member of the energy sector then it would have included it in the
definition of “energy industry.”
24.
On the principle of expressio
unius est exclusio alterius,
the fact that section 2 of the Act does not mention the persons
concerned with regulation of the energy sector in the definition
means that the first respondent does not fall within the energy
industry.
25.
In Eagle
Insurance Co Ltd v Grant
1989
(3) ZLR 278 (SC) at 280F,
Korsah JA commenting on the operation of the maxim said:-
"A
rule which is variably resorted to in the interpretation of statutes,
the expressio unius rule - is that the mention of one or more things
of a particular class may be regarded as silently excluding all other
members of the class”.
26.
Furthermore, in Nkomo
& Anor v Attorney-General & Ors
1993
(2) ZLR 422 (SC) at 434D-E
Gubbay CJ stated:-
"To
ascribe a sensible meaning to subs (5) and to avoid superfluity
necessitates the legitimate recourse of construing the general words
'any sentence' in subs (6) as excluding the specific reference to
'a sentence of death' in subs (5). This is no more than an
application of the rule embodied in the maxim 'expressio unius est
exclusio alterius'. It draws attention to the fairly obvious
linguistic point that in many contexts the mention of some matters
warrants an inference that other cognate matters were intentionally
excluded. See Maxwell on 'The Interpretation of Statutes' 12 ed
at p 293."
27.
In light of the above, the court is of the view that had the
Legislature intended that the first respondent be a player in the
energy industry, it would have expressly provided for it.
28.
The fact that the legislature omitted the first respondent from the
definition means that it does not fall within the energy industry.
The legislature did not include the word "regulation" in
the definition and such a gap cannot be filled by the court under the
guise of interpreting section
2 purposively
as suggested by the appellants.
29.
In this regard, this Court in Car
Rental Services (Pvt) Ltd v Director of Customs & Exercise
1988
(1) ZLR 402 (SC) at 409 had
the occasion to comment on this aspect in the following manner:-
"It
is not for the courts to legislate or attempt to improve on the
situation achieved by Parliament through the language it has chosen
in its enactment. Effect must be given to what the Act says or
permits and not to what it may be thought it ought to have said or
prohibited. If there is a casus omissus in the Act, and if it could
lead to undesirable consequences, the court has no power to fill it.
It is a matter for the Legislature."
30.
The above quoted words are particularly apposite in the instant case
because the literal meaning of the provision in question leads to no
absurdity and it is not inconsistent with the intention of the
legislature. The definition expressly spells out the persons who
constitute the energy industry with the exclusion of the regulator,
which is a clear indication that the first respondent was not
intended to be part of the energy industry.
31.
The first respondent does not fall within the energy industry and, by
extension, it is not bound by the CBA for the energy sector.
DISPOSITION
The
interpretation of section 2 of the Act shows that the first
respondent does not fall within the energy industry. This means that
the CBA is not binding on the first respondent.
The
court a
quo
did not fall into any error in holding that the first respondent is
not an employer in the energy industry and therefore is not bound by
the CBA.
This
appeal is without merit and there being no reason to depart from the
general rule that costs follow the result, the general rule on costs
shall prevail.
Accordingly,
it is ordered as follows:-
The
appeal be and is hereby dismissed with costs.
GWAUNZA
JA: I agree
PATEL
JA: I agree
Matsikidze
& Mucheche Commercial and Labour Law Chambers, Appellants legal
practitioners
Kantor
and Immerman, 1st respondent's legal practitioners
