Urgent
Chamber Application
CHIGUMBA
J:
This
is a matter in which I was called upon to decide whether s89(6), as
read with s89(1)(d1) of the Labour Act [Cap 28:01] ousts the review
jurisdiction of the High Court over matters that the Labour Court has
exclusive jurisdiction over.
The
question for determination is whether the High Court has jurisdiction
to entertain an application for review of a labour matter, at first
instance.
It
appears to me, that by its very nature, the Labour Court is
frequently seized with matters whose conduct evokes the biblical
David and Goliath pathos. David being the employee litigants that
appear before it and Goliath being represented by the more powerful
employer. It is important that labour practitioners pay heed to the
need to protect and promote the powers and remedies provided by the
Labour Act. This involves becoming intimately acquainted with these
provisions, and utilizing them as frequently as possible, in order to
streamline them, and to provide room for their improvement.
Labour
practitioners should not lose sight of the fact that the cost of
litigation is cheaper in the Labour Court. Surely this assists our
biblical David in his puny attempts to make Goliath pay what is due
and owing to him, on termination of employment.
This
court should be loath to collude with and to assist Goliath to bully
David into submission, into giving up the enforcement of his rights,
simply because Goliath has the financial where-withal, a bottomless
pit, that enables him to go forum shopping, to hop from one court to
the next, looking for a suitable remedy with which to hit David on
the head with, knock him out, and delay or avoid paying what is due
at any cost.
Time
has come for labour practitioners to recognize that, as officers of
the court, they must show respect to the Labour Court and not run to
the High Court at the drop of a hat because it is perceived as being
more expeditious in disposing of these matters, or because they are
more familiar with its rules and procedures.
This
matter came to me via the urgent chamber book.
After
perusing the application and the opposing papers filed of record, I
formed the preliminary view that the applicant had not exhausted
domestic remedies, and that the High Court should decline
jurisdiction.
I
invited the parties to attend on me in chambers, and to address me
solely on that point.
I
was not persuaded to change my preliminary view.
I
dismissed the application with costs for lack of jurisdiction.
The
applicants have now written to me and asked me to provide my reasons
for holding such a view. These are the reasons.
In
this urgent chamber application for stay of execution, the applicant
sought the following relief:
“INTERIM
RELIEF GRANTED
Pending
the return date it is ordered;
1.
That execution of the warrant of execution issued under MC16865/14 be
and is hereby suspended pending the return date.
2.
That the 3rd respondent or any of his officers shall not attach and
remove from the applicant's premises any of the applicant's
movable or other property.
3.
Costs shall be determined on the return date.
TERMS
OF FINAL ORDER SOUGHT
That
on the return date the respondent show cause why a final order should
not be made on the following terms;
1.
The application for review is hereby granted.
2.
The warrant of execution issued on 31 July 2014 under case number
MC16865/14 be and is hereby set aside.
3.
The applicant shall be entitled to deduct Income Tax per the Income
tax Act [Cap 28:06] on the amounts due to the 1st respondent in terms
of the Arbitral Award of 18 July 2014.
4.
The 1st respondent's legal practitioner, Mr. Lawman Chimuriwo,
shall bear the costs of these proceedings de boniis propis.”
The
grounds supporting this application were that, the first respondent
had instructed the third respondent to attach, remove and sell
applicant's movable property acting under an “irregularly”
issued warrant of execution, and that the judgment debt had been paid
in full and that there was no need to proceed with execution.
The
certificate of urgency was authored by Johhannes Muchada, a legal
practitioner with Messrs Dube, Manikai & Hwacha, the applicant's
legal practitioners of record.
Mr.
Muchada certified that the application was urgent because first
respondent had acted improperly in instructing the third respondent
to attach and remove the applicant's property on the basis of an
irregular warrant of execution, the charge being that the warrant of
execution was issued without registration of the arbitral award.
Mr.
Muchada also certified that the matter was urgent because property
had been attached on 17 September and removal was due on the 18th of
September 2014.
It
was also averred that if the applicant was not heard quickly it would
suffer irreparable harm as the attached property would be sold in
satisfaction of an irregular warrant.
Attached
to the papers filed of record, was a court application for review
made in terms of Order 33 Rule 256 of the High Court Rules 1971.
That
application was premised on the averment that, a warrant of execution
had been issued out on 31 July 2014, which applicant became aware of
on 22 August 2014. It was alleged that when the warrant of execution
against property was issued, there was no judgment which had been
obtained against the applicant by the first respondent, in that
court, and that the arbitral award had not been registered as an
order of the Magistrates Court.
It
was contended that the warrant of execution had no legal basis, and
was null and void, more so since the applicant alleged that it had
discharged its indebtedness to the first respondent, in full.
Mr.
James Mashava, in his founding affidavit to the application for
review, stated that the applicant was seeking an order to set aside
the warrant of execution granted by the second respondent despite the
fact that the applicant had discharged the judgment debt in full, and
without registration of the arbitral award as an order of that court.
The
applicant also seeks a declaration that it is entitled to withhold
income tax from the first respondent's remuneration.
The
first respondent was charged with acting mala fide, and with
intending to cause irreparable financial prejudice to the applicant
whose property would be sold for a paltry sum, at auction.
The
first respondent filed his opposing papers to this application on 29
September 2014.
In
his opposing affidavit, he raised three points in limine;
(i)
jurisdiction;
(ii)
the question of who could competently prepare a certificate of
urgency; and
(iii)
whether or not this matter was indeed urgent.
Before
setting out the first respondent's contentions which he raised in
these three preliminary points, I will set out the first respondent's
submissions regarding the merits of the application.
It
was contended that the proper appropriate court before which the
applicant should seek relief was the Labour Court.
It
was contended further that, applicant is not entitled to withhold
income tax from an award that dos not take income tax into account.
The first respondent averred that the question of income tax was not
raised at the quantification proceedings before the arbitrator, and
that in the face of such an omission, applicant ought to have
appealed against the arbitral award on the basis that it was
incompetent in that it failed to make provision for income tax.
The
first respondent submitted that the procedure adopted when the
warrant of execution had been issued by the clerk of court was
recommended to him by the Resident Magistrate at Harare Civil
Magistrates Court when he sought his advice. He said he was advised
that the procedure for registration of an arbitral award was
different in the Magistrates Court where it was not necessary that a
formal written application for registration be filed, unlike in the
High Court.
The
respondent denied that the judgment debt had been discharged in full
as alleged by the applicant. He denied that his actions were
motivated by malice.
The
first respondent maintained that the procedure he adopted is the one
recommended by section 98(14) of the Labour Act [Cap 28:01].
The
first preliminary point raised by the first respondent is that the
High Court has no review jurisdiction over matters covered by the
Labour Act that can competently be dealt with by the Labour Court.
He
submitted that section 89(6), as read with section 89(1)(d1) of the
Labour Act clearly ousts the High Court's review jurisdiction over
matters that the Labour Court has jurisdiction over.
Let
us examine this curious submission made by the first respondent.
This
court's own review jurisdiction is found in section 26 of the High
Court Act [Cap 7:06] which provides that:
“26
Power to review proceedings and decisions
Subject
to this Act and any other law, the High Court shall have power,
jurisdiction and authority to review all proceedings and decisions of
all inferior courts of justice, tribunals and administrative
authorities within Zimbabwe.” (my underlining for emphasis)
It
is trite that both the Labour Court and the Magistrates Court are
inferior courts of justice.
The
word inferior is not an indictment of the quality of justice that is
dispensed by these courts. It is an acknowledgment of the fact that
these courts have no inherent jurisdiction, that they are confined to
the four corners of the Acts of Parliament which founded them, in so
far as their jurisdiction and in determining what they may or may not
do.
My
reading of section 26 of the High Court Act is that the High Court
does have review jurisdiction over all inferior courts, but that
jurisdiction is subject to what is provided by the High Court Act,
and by any other other law. In other words, the High Court's power
to review decisions of the Labour Court and the Magistrates Court is
subject to the provisions of the Labour Act [Cap 28:01], and of the
Magistrates Court Act [Cap 7:10].
Section
89(1)(d1) and section 89(6) of the Labour Act provide as follows:
S89(1)(d1)
“89 Functions, powers and jurisdiction of Labour Court
(1)
The Labour Court shall exercise the following functions —
(a)…
(b)…
(c)…
(d)…
(d1)
exercise the same powers of review as would be exercisable by the
High Court in respect of labour matters;
Section
89(6) “(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)”.
Clearly,
if the High Court's powers of review are similar to those of the
Labour Court, but the review powers of the Labour Court are confined
to labour matters only, and section 89(6) confers exclusive powers to
review labour matters at first instance on the Labour Court, then it
is correct to state that the High Court has no jurisdiction to
entertain an application for review of a labour matter, at first
instance.
In
my view, any application for review of a labour matter, which is an
application of first instance, must be directed to, and dealt with by
the Labour Court.
Section
89(1)(d1) spells out clearly that the powers of review of the Labour
Court are the same as those of the High Court. In my view, when
considering what those powers are, regard should be had to section 27
of the High Court Act, which provides the grounds for review:
“27
Grounds for review
(1)
Subject to this Act and any other law, the grounds on which any
proceedings or decision may be brought on review before the High
Court shall be —
(a)
absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
gross irregularity in the proceedings or the decision.
(2)
Nothing in subsection (1) shall affect any other law relating to the
review of proceedings or decisions of inferior courts, tribunals or
authorities.”
It
is interesting to note that section 27 makes it clear that the High
Court's powers of review are subject to any other law, and that,
these powers shall not affect any other law relating to the review of
proceedings or decisions of inferior courts.
It
is my respectful view that this is a clear ouster of the High Court's
inherent jurisdiction, and of its powers of review conferred on it by
section 27, where other laws (read Labour Act) are expressly cloaked
with similar jurisdiction but in a specialized area, such as labour
matters.
The
Labour Court has the same powers to set aside or correct the
proceedings or decision, as provided in section 28 of the High Court
Act.
Having
settled the question of the Labour Court's review jurisdiction, it
was apparent to me that the court application for review purportedly
filed in terms of Order 33 Rule 256 of the High Court Rules 1971 was
incompetent, being an application for review at first instance, and
consequently not properly before the High Court.
It
ought to have been filed in the Labour Court, which has similar
powers of review, and provides similar remedies.
It
then occurred to me that what the applicant sought to have reviewed
was the procedure adopted by the Magistrates Court, another inferior
court whose procedures are governed by the Magistrates Court Act and
Rules.
The
registration of arbitral awards is provided for by sections 98(14)
and 98(15) of the Labour Act which stipulates that:
“(14)
Any party to whom an arbitral award relates may submit for
registration the copy of it furnished to him in terms of subsection
(13) to the court of any magistrate which would have had jurisdiction
to make an order corresponding to the award had the matter been
determined by it, or, if the arbitral award exceeds the jurisdiction
of any magistrates court, the High Court.
(15)
Where arbitral award has been registered in terms of subsection (14)
it shall have the effect, for purposes of enforcement, of a civil
judgment of the appropriate court.”
Section
98(14) allows registration of an arbitral award for purposes of
enforcement, with any court of competent jurisdiction.
In
this case the arbitral award fell within the monetary jurisdiction of
the Magistrates Court, which is currently pegged at USD$10,000-00.
Section
98(15) provides that the effect of registration of an arbitral award
in terms of section 98(14) is to turn the arbitral award into a civil
judgment of the appropriate court.
My
reading of section 98 is that it accepts that an arbitral award is
not a court order for purposes of enforcement.
By
rights, arbitral awards should be registered as orders of the Labour
Court, because they emanate from labour related processes.
Unfortunately, the Labour Court, which was initially constituted as a
tribunal, was not cloaked with enforcement procedures of its own by
its parent act.
In
my view, this anomaly is continuing to cause great hardship to
litigants, especially petitioners in labour matters, who I have
expressed great sympathy with at the outset. It has resulted in a
situation where they are forced to move from pillar to post, in
search of justice, and the procedures in place are not user friendly,
but cumbersome, and protracted, and ultimately expensive, placing
justice beyond the reach of many.
It
is my humble view that the time is long past, for the legislature to
address this anomaly, especially in light of our current economic
environment where many people find themselves out of employment, and
require a streamlined, speedy, inexpensive one stop shop where their
labour grievances may be addressed.
I
also held the view that applicant ought to have exhausted the
domestic remedies provided in terms of the Labour Act.
Section
92E(3) provides that:
“(3)
Pending the determination of an appeal the Labour Court may make such
interim determination in the matter as the justice of the case
requires.” See 1
It
was held in this case that an arbitral award can be stayed or
suspended by the Labour Court, pending the determination of an appeal
in terms of section 92E(3).
We
have established that the Labour Court's powers of review are
similar to those of the High Court. In my view, since the High Court
has power to stay or suspend judgments pending review, we can safely
infer that the Labour Court has similar powers, on review.
It
was held in the case of Dragana Djordjevic v The Chairman of the
Practice Control Committee of the Medical and Dental Practitioners
Council of Zimbabwe & Anor 2
HH110-09. Those domestic remedies ought to be exhausted unless there
are good reasons for not doing so.
Similar
sentiments were expressed in the case of Girjac Services (Private)
Limited v Mudzingwa3.
In
another related matter, it was held that:
“…this
court should not be prepared to review the decision of a domestic
tribunal merely because the aggrieved person has decided to apply to
this court rather than proceed by way of domestic remedies….”
4Moyo
v Forestry Commission 1996 (1) ZLR 173 (H).
The
Supreme Court expressed similar sentiments in a matter where the
respondent had been employed by the appellant as a manager. He was
suspended from duty following an investigation into alleged acts of
misconduct. He was invited to a disciplinary hearing which he failed
to attend on 3 July 2002. The respondent was found guilty as charged
on 10 July 2002. He applied to the High Court for a review of the
proceedings leading to his dismissal. He did not appeal against the
decision in terms of the Code of Conduct.
The
appellant appealed against the review proceedings on the basis of
failure to exhaust domestic remedies, among other grounds of appeal.
It
was held that domestic remedies should not be abandoned without valid
reasons. See5
Olivine Industries (Private) Limited v David Gwekwerere SC- 63-059.
In
this case the applicant did not provide any reasons why it sought to
have the procedure adopted by the Magistrate Court reviewed by this
court, in a labour matter. It did not provide any reasons why the
domestic remedies provided by the Labour Act were not fully utilized
by it.
Applicant
did not give any reasons why it did not apply for stay of execution
before the Magistrates Court, whose parent act and rules clearly
provide such a remedy. 1
Greenland v Zimbabwe Community Health Research Project HH93-13.
2
HH110-09: that:
“…
it
has been laid down in a number of cases that where domestic remedies
are capable of providing effective redress in respect of the
complaint, the litigant should exhaust the domestic remedies
themselves unless there are good reasons for not doing so”.
3
1980 (1) ZLR 243 @ 249 E-F
In
the absence of any good reasons why the applicant did not utilize the
domestic remedies available to it, it is my view that applicant ought
not to be heard by this court.
Applicant
must go back and utilize the available domestic remedies or provide
this court with a good reason why this is impossible or distasteful
to it.
I
then turned to consider whether the applicant could have obtained the
relief that it sought from any of the inferior courts.
It
is common cause that the arbitral award was “registered” for
purposes of execution by the Magistrates Court. Section 20 of the
Magistrates Court Act provides that:
“20
Writs of execution
When
a court gives judgment for the payment of money the amount shall be
recoverable, in case of failure to pay the same forthwith or at the
time or times and in the manner ordered by the court, by execution
against the movable property and, if there is not found sufficient
movable property to satisfy the judgment, then against the immovable
property of the party against whom such judgment has been given.”
(my underlining for emphasis)
It
is my considered view that section 98 of the Labour Act is based on
the premise that an arbitral award is not an order of court and that
it requires registration in a court of competent jurisdiction for
purposes of execution.
The
purpose of registration is to turn the arbitral award into an order
of that court.
Section
20 of the Magistrates Court Act provides that in order for a writ of
execution to be issued, there must be a judgment of the Magistrates
Court, which is founded in money, on which execution will be based.
The
procedure adopted by the Magistrate Court, of merely issuing a writ
of execution on the basis of an arbitral award is akin to putting the
cart before the horse.
In
my view, the issuing of a writ of execution must be preceded by the
filing, and determination of an application for registration of the
arbitral award as an order of the Magistrates Court.
Only
then, may the arbitral award, now a competent order of the
Magistrate's Court, be competently enforced via the auspices of a
writ of execution emanation from the Magistrates' Court.
My
view is supported by the provision of the Magistrates Court (Civil)
Rules 1980 (Order 26) wherein it is stated that:
“(1)
The process for the execution of any judgment for —
(a)
the payment of money;
(b)…
(c)…
shall
be by warrant issued and signed by the clerk of the court and
addressed to the messenger.
(2)
Such process may be sued out by any person in whose favor any such
judgment has been given if such judgment is not then satisfied,
stayed or suspended.” (my underlining for emphasis).
My
reading of Order 26 Rule (1)(a), as read with Rule (2), is that,
before execution of a judgment which sounds in money, and before a
warrant of execution is issued by the clerk of court, there must be
proof that there is a judgment which has not been satisfied, stayed,
or suspended.
In
this case there was no registration of the arbitral award into a
judgment of the Magistrate's Court (in terms of section 98 of the
Labour Act), and so there was no basis on which a warrant of
execution could have been issued.
What
then, should have been applicant's first port of call in these
circumstances?
Clearly,
the Magistrates Court itself, the purveyor of a warrant of execution
which was not based on its own judgment as provided by its governing
act, or its rules.
The
Magistrate Court purported to issue a warrant of execution.
It
is my view that applicant could only have approached the Labour Court
for review of the procedure for registration of its arbitral award.
Pending that review, on the basis of procedural irregularity,
applicant ought to have applied for stay of execution out of the
Magistrate's Court, simply because it had issued the warrant of
execution.
There
was no legal basis on which applicants approached the High Court.
The
matter was within the monetary jurisdiction of the Magistrates Court.
The matter concerned an arbitral award which was not properly
registered by the Magistrate's Court.
The
Labour Court expressly ousts the jurisdiction of the High Court to
review labour matters at first instance.
The
relief sought by the applicants in the main matter (review of a
labour matter) was consequently incompetent at law.
The
Administrative Justice Act [Cap 10: 28] provides:
“…
for
the right to administrative action and decisions that are lawful,
reasonable and procedurally fair; to provide for the entitlement to
written reasons for administrative action or decisions…”
In
my view, the High Court, without limitation to its discretion as
provided in terms of sections 26, 27 and 28 of its governing act,
should decline to entertain applications if the applicant is entitled
to seek relief under any other law, and the High Court considers that
any such remedy should be first exhausted.
This
is what section 7 of the Administrative Justice Act provides, and the
provisions of that act are merely cited here as an illustration of
the point that I wish to emphasise.
The
discretion to entertain applications should extend to and be
exercised to decline to hear applications that pertain to Labour
matters, especially those applications which the Labour Act itself
has reserved exclusively, for the Labour Court.
As
long as the High Court continues to entertain any and all
applications that legal practitioners in their wisdom continue to
file in this court, there will always be a siege mentality caused by
multiplicity of actions, increasing litigiousness, and the desire to
shop for different fora in a bid to secure a certain desired result.
The
High Court in my humble view ought to be careful not to unnecessarily
usurp the jurisdiction of the Labour Court.
The
court did not consider any of the other preliminary points raised by
the first respondent in reaching its conclusion to dismiss the
application before it with costs.
The
application was incurably and fatally defective, being within the
four corners of the exclusive jurisdiction of the Labour Court.
Even
the question of urgency was not considered, my view being that
urgency ought to be considered only after jurisdiction has been
founded.
Messrs
Dube, Manikai & Hwacha, applicant's legal practitioners
Messrs
Lawman Chimuriwo Attorney At Law, 1st respondent's legal
practitioners
