MATHONSI
J:
Of
course the first and third respondents took a point in limine
challenging the jurisdiction of this court to determine this matter
on the ground that it is purely a labour dispute to which the Labour
Court enjoys exclusive jurisdiction by virtue of the ouster provision
contained in s89(6) of the Labour Act[Chapter 28:01], but this
application centres around the validity of the suspension of the 2
applicants, who are senior officials of the first respondent having
been employed as Human Capital Director and Finance Director
respectively.
It
evolves around the determination of which employment law is
applicable to the disciplinary action taken against the applicants,
between the relevant provisions of the Urban Councils Act [Chapter
29:15] and the Labour Act [Chapter 28:01] with its attendant Labour
(National Employment Code of Conduct) Regulations, S.I. 15 of 2006.
The
first respondent is a municipal authority constituted in terms of the
Urban Council Act and charged with the responsibility of running the
affairs of the capital city, Harare. It has been cited herein along
with the second respondent, the Minister under whose portfolio the
municipality falls as well as the current Town Clerk, the third
respondent, and 2 gentlemen who were put together to constitute a
disciplinary committee to preside over the proceedings wherein the
applicants are facing charges of misconduct.
They
complete the cast as fourth and fifth respondents but saw no reason
to oppose the application.
The
second respondent, in typical Pilate style, submitted a letter
through the Civil Division of the Attorney General's Office stating
that he is not opposed to the order sought and will abide the
decision of this court.
This
left the first and third respondents to their devices as the only
contestants.
The
facts are generally common cause. They are that;
Sometime
in 2016 the then Minister of Local Government, Public Works and
National Housing commissioned an audit conducted by the Ministry's
Internal Auditors whose brief was, among other things, to ascertain
the level of compliance by Harare City Council with a directive the
Minister had issued directing Local Authorities to rationalise
salaries and allowances of their employees.
Following
the special audit conducted from 14 April 2016 to 21 June 2016 the
auditors submitted a report dated 30 June 2016 which made certain
findings including that the 2 applicants as well as the Chamber
Secretary had negative audit observations:
“Where
the Minister should, through the council, cause them to show reason
why the three should not be charged with misconduct, suspended from
duty and further investigations to be carried out.”
Following
that damning Ministerial audit, the first respondent was jolted into
action constituting its own special tribunal led by Justice Leslie
George Smith (Retired) whose very wide terms of reference included
the establishment of whether there was any abuse, embezzlement or
other irregularities with the disbursement of Council funds from
August 2015, assessment of the quantum of financial and other
prejudice to council and the amount attributed to each senior
executive, establishment of the nature of the offence committed by
each senior executive and whether in the interests of residents and
the public, they are still fit and proper to hold office.
As
an indictment against the 2 applicants the special tribunal made
several findings of impropriety drawing the drawing conclusion;
“The
Tribunal found that, almost invariably, the activities falling within
the subject areas of its Terms of Reference were conducted contrary
to relevant statutes or in the absence of sanctioning council
resolutions or in direct violation of extant council resolutions or
in direct violation of extant council resolutions or contrary to
written contracts of employment or in direct violation of Council
policies.
Much
of the activities bear demonstrable traits of fraud, corruption,
criminal abuse of office and even forgery…..
Almost
all the senior executives under review acquiesced, or were complicit,
in these activities. This would obviously be because they were all
beneficiaries of the patent departures. The City continued to suffer
prejudice and will possibly continue to do so.”
At
a Special Council Meeting held on 20 December 2017 which received the
report of the Special Tribunal, it was resolved that the report be
accepted and adopted and that 4 senior executives including the 2
applicants be suspended and that an Acting Town Clerk be appointed
given that one of those to be suspended was the then Acting Town
Clerk.
The
new Acting Town Clerk was to then suspend the applicants and cause
them to appear before a disciplinary committee appointed by the
Mayor.
The
third, fourth and fifth respondents were subsequently appointed in
pursuance of that Council resolution.
The
third respondent immediately swung into action dishing letters of
suspension dated 31 December 2017 to the applicants in terms of which
they were advised that their suspensions were in terms of s6(1) of
the Labour (National Employment Code of Conduct) Regulations, S.I 15
of 2006.
By
similar letters dated 5 January 2018 the 2 were required to appear
before a disciplinary committee comprising of the fourth and fifth
respondents on 11 and 15 January 2018.
The
applicants would have none of it.
Acting
in league they brought this application before this court seeking a
declaratur and consequential relief. The draft order containing that
relief reads:
“IT
IS ORDERED:
1.
That it be and is hereby declared that the suspension of the
applicants pursuant to resolutions by a special council meeting of
the 1st respondent held on 20th December 2017 and communicated to the
applicants by letters of the 3rd respondent dated 31 December 2017 is
in contravention of section 140 of the Urban Councils Act [Chapter
29:15] and is null and void and of no force or effect.
2.
That it be and is hereby declared that the disciplinary proceedings
against the applicants flowing from the aforesaid resolution by a
special council meeting of the 1st respondent held on 20th December
2017 and implemented by letters of the 3rd respondent dated 5th
January 2018 are in contravention of section 140 of the Urban Council
Act [Chapter 29:15] and are null and void and of no force or effect.
3.
That, as a consequence of 2 above, it be and is hereby declared that
the disciplinary proceedings presided over by the 4th and 5th
respondents are in contravention of section 140 of the Urban Councils
Act [Chapter 29:15] and are null and void and of no force or effect.
4.
That it be and is hereby declared that in respect of senior officials
of a council, non compliance with section 140 of the Urban Councils
Act [Chapter 29:15] cannot be remedied merely by resorting to the use
of the procedures set out in Labour (National Employment Code)
Regulations, 2006, S.I 15/2006.
5.
That, for the avoidance of doubt, it be and is hereby declared that
the 1st and 2nd applicants are still the Human Capital Director and
Finance Director respectively of the first respondent.
6.
The respondents (if they oppose this order) shall pay the costs of
this application on a legal practitioner and client scale.”
The
gravamen of the applicants' case is that in their capacities as
Human Capital Director and Finance Director respectively they are
each classified as senior officials of the first respondent as
defined in s131 of the Urban Council Act. As such their conditions of
service including discipline and dismissal are regulated by ss139 and
140 of that Act and not by the Labour Act [Chapter 28:01] in terms of
which the National Employment Code, 2006 under which they are being
disciplined was promulgated.
As
their suspensions were instigated by councillors at a Special Meeting
of 20 December 2017 and implemented by the third respondent in terms
of the Labour Act, the entire process is contrary to the Urban
Councils Act and therefore null and void. They are therefore entitled
to reinstatement.
The
application, as I have said, is opposed by the first and third
respondents, the Minister who received the initial recommendation
from auditors for the suspension of the applicants' having
departed, the current Minister says he is not opposed to the
application.
The
respondents' case is that the application is essentially for a
review of the first respondent's decision to suspend the applicants
and is disguised as one for a declaratur. For that reason it is a
labour dispute to which the Labour Court enjoys exclusive
jurisdiction to the exclusion of this court.
I
must say that the respondents had taken another point in limine on
the ground of lis pendens after the applicants had earlier made
another application in HC210/18. Mr Kwaramba who appeared for the
respondents promptly withdrew that point in limine at the
commencement of the hearing. He was satisfied that the application
had been withdrawn.
On
the merits the respondents assert that it is council which is the
employer and not individual employees of it. Therefore Council was at
liberty to instigate the suspension of its employees on suspicion of
misconduct. In that regard, the first respondent acted within the
confines of the law when it suspended the applicants in terms of the
Labour Act as read with the National Employment Code.
That
legislation, which exists parallel to the Urban Councils Act, applies
to every employer and employee of this country not specifically
excluded thereby entitling the first respondent, as such employer, to
utilise its provisions and not the Urban Councils Act, s140(3) of
which does not override the Labour Act.
To
the extent that the disciplinary proceedings are being conducted in
terms of the applicable law they cannot possibly be unlawful.
The
respondents further argue that if the applicants contend that senior
council officials can only be disciplined in terms of s140 of the
Urban Councils Act, that means there are inconsistencies between the
2 Acts given that the Labour Act also applies. In that event the
Labour Act prevails by virtue of its s2A.
Apart
from that, the Labour Act should be the preferred choice given its
progressive provisions which not only advance social justice but also
guarantee better protection to the rights of employees.
Indeed
the applicants have not suggested that resort to the National
Employment Code is prejudicial to them.
I
have made reference to the point in limine taken by Mr Kwaramba on
perceived lack of jurisdiction.
It
is a point now routinely seized by legal practitioners each time
anything resembling a labour dispute rears its head. This may well
arise out of the fact that the High Court itself has, for quite
sometime dating back to 2004 when BHUNU J (as he was then) declined
jurisdiction in Tuso v City of Harare 2004 (1) ZLR 1 (H), given
conflicting signals in a number of cases.
Other
judges have declined jurisdiction in certain cases (ZBC Retrenches v
Zimbabwe Broadcasting Holdings HH183-17) while others have exercised
jurisdiction creating fertile ground for legal practitioners to
continue raising the issue.
In
this matter the parties agreed that the court should determine the
issue together with other issues.
I
however do not intend to be detained by the issue of jurisdiction in
this matter which is clearly an application for a declaratory order.
It says so and the relief that is sought which I have reproduced
earlier in this judgment says so and I do not agree with Mr Kwaramba
that it is an application for reinstatement disguised as a
declaratur.
To
that extent, the Labour Court has no jurisdiction to grant
declaratory orders which have been held not to be “in terms of this
Act or any other enactment” providing the Labour Court with
exclusive jurisdiction. See UCSF Collaborative Research Programme in
Women Health v Shamuyarira 2010 (1) ZLR 127 (S) at 130 D.
I
will therefore exercise jurisdiction without further ado.
On
the merits I am required to decide the question I have already
related to at the commencement of this judgment, namely the validity
of the suspension of the applicants in terms of s6(1) of the National
Employment Code in light of them being senior officials of the
municipality as defined in s131 of the Urban Councils Act.
This
is because as senior officials, s140 of that Act regulates the
disciplinary proceedings against them. At the same time the Labour
Act also applies to them as employees.
Mr
Madhuku for the applicants submitted that s140 of the Urban Councils
Act is still part of our law and has not been repealed. To that
extent the applicants should have been dealt with in terms of its
provisions.
He
submitted further that s2A of the Labour Act has no application given
that there is no inconsistency between the 2 statutes. In fact the 2
statutes are reconcilable by following the procedure set out in
s140(3) all the way up to s140(5) of the Urban Councils Act.
If
following an inquiry provided for therein, one decides to discharge a
senior official that is still possible without resort to the Labour
Act as provided for in s140.
Mr
Madhuku conceded that s140 contains repugnant provisions authorizing
Council to summarily dismiss an employee which would inevitably be
inconsistent with the Labour Act protecting as it does, social
justice and safeguarding the rights of employees against unfair
dismissal.
To
that effect he conceded that the provisions relating to summary
dismissal must be taken to have been impliedly repealed by the Labour
Act. The rest of the provisions are still part of our law and must be
complied with. Therefore the first respondent should proceed in terms
of s140 of the Urban Councils Act.
Those
submissions were strongly contested by Mr Kwaramba who took the view
that the matter turns on whether the applicants were suspended in
terms of a law that is applicable to them or not.
Section
140 is inconsistent with the Labour Act and has therefore been
impliedly repealed by it. He relied on the authority of Tamanikwa &
Ors v Zimbabwe Manpower Development Fund 2013 (2) ZLR 48 (S) in
advancing the argument that the Labour Act applies to this matter and
has therefore done away with any requirement to discipline senior
officials in terms of s140 of the Urban Councils Act.
The
question therefore is which statute takes precedence over the other?
Section
140 provides:
“140
Conditions of service of other senior officials
(1)
Subject to subsection (2) and to the conditions of service of the
senior officials concerned, a council may at any time discharge a
senior official -
(a)
upon notice of not less than three months; or
(b)
summarily on the ground of misconduct, dishonesty, negligence or any
other ground that would in law justify discharge without notice.
(2)
A council shall not discharge a senior official unless the discharge
has been approved by the Local Government Board; Provided that the
discharge of a medical officer of health shall, in addition, be
subject to the approval of the Minister responsible for health in
terms of section 11 of the Public Health Act [Chapter 15:09].
(3)
If it appears to a town clerk that any other senior official of the
council has been guilty of such conduct that it is desirable that
that official should not be permitted to carry on his work, he -
(a)
may suspend the official from office and require him to leave his
place of work; and
(b)
shall forthwith notify the mayor or chairman of the council, as the
case maybe in writing, of such suspension.
(4)
Upon receipt of a notification of suspension in terms of subsection
(3) the mayor or chairperson shall cause the suspension to be
reported at the first opportunity to the council.
(5)
Where a council has received a report of a suspension in terms of
subsection (4), the council shall without delay –
(a)
conduct an inquiry or cause (an) inquiry to be conducted into the
circumstances of the suspension; and
(b)
after considering the results of the inquiry, decide whether or not –
(i)
to lift the suspension; or
(ii)
to do any one or more of the following –
(A)
reprimand the senior official concerned;
(B)
reduce the salary, any allowance payable to the senior official;
(C)
transfer the senior official to another post or grade, the salary of
which is less than that received by him or her at the date of the
imposition of the penalty.
(D)
impose a fine not exceeding level five or three month's salary,
which fine may be recovered by deductions from the salary of the
senior official;
(E)
subject to subsection (2) discharge the senior official.”
It
is significant that Mr Madhuku for the applicants was careful not to
advance the enforcement of subsections (1) and (2) of s140 which
contain the power to summarily dismiss a senior official. He readily
conceded that subsection (1) has been repealed by implication by the
Labour Act.
It
has not escaped my observation that even the elaborate procedure in
subsections (3), (4) and (5) advocated for by the applicants only
adverts to an inquiry which is undefined.
That
procedure does not provide for a disciplinary hearing which
recognizes the rules of natural justice, in particular the audi
alteram partem rule.
Against
these provisions should be juxta-posed what is contained in the
Labour Act [Chapter 28:01].
Certain
telling amendments to that Act were introduced by Act No. 7 of 2005
which also inserted s2A. It provides in relevant part;
“2A
Purpose of Act
(1)
The purpose of this Act is to advance social justice and democracy in
the work place by –
(a)
giving effect to the fundamental rights of employees provided for in
Part II;
(b)
…………
(c)
………….
(d)
the promotion of fair labour standards;
(e)……………
(f)
securing the just, effective and expeditious resolution of disputes
and unfair labour practices. (2)……….
(3)
This Act shall prevail over any other enactment inconsistent with
it.” (The underlining is mine).
In
a carefully written and comprehensive judgment written for it by
GOWORA JA in Tamanikwa & Ors v Zimbabwe Manpower Development
Fund, supra, the Supreme Court interpreted most of the relevant
provisions of the Labour Act having a bearing on the present matter.
In fact it would be fair to say that almost every pronouncement in
that judgment touches on the issues for determination in this matter.
By
virtue of the doctrine of stare decisis this court is bound by the
decisions of the Supreme Court and has to apply them as a matter of
course.
Dealing
with s2A(3) that the Labour Act prevails over any other enactment
whose provisions are inconsistent with its own, the court remarked at
54F;
“There
is a general rule of statutory interpretation that where two statutes
are in conflict with each other, the latter statute, by virtue of the
principle of lex posterior derogate e priore, is deemed to be the
superior one on the basis of implied repeal. This is because it is
presumed that when the legislature passes the latter Act it is
presumed to have knowledge of the earlier Act.”
Another
amendment introduced by Act 7 of 2006 is s3 of the Labour Act which
has also been soundly dealt with by the Supreme Court in the
Tamanikwa case, supra. It reads:
“3.
Application of Act
(1)
This Act shall apply to all employers and employees except those
whose conditions of employment are otherwise provided for in the
constitution.
(2)
For the avoidance of doubt, the conditions of employments 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.”
This
provision is very clear and admits of no other interpretation than
that the Labour Act now applies to all employers and employees in
this jurisdiction except those that it specifically excludes and for
the avoidance of doubt, sets out therein.
So,
by clear and quite unambiguous language the lawgiver made the Labour
Act applicable to all employers and employees except civil servants
and indeed members of the uniformed forces.
In
interpreting that all embracing provision the Supreme Court was
emphatic in the Tamanikwa case, supra at 52F-G, 53A–B;
“As
is evident from the provisions of s3, the Act applies to all
employers and employees except for those whose conditions of
employment are governed by the constitution or the Public Service Act
[Chapter 16:04].
The
precursor to the Labour Act, the Labour Relations Act 16 of 1985,
provided in s3 thereof:
'3.
Application of Act
This
Act shall apply to all employers and employees except those whose
conditions of employment are otherwise provided for by or under the
constitution.'
As
a consequent of the above provision, prior to its amendment, in
construing the section, courts within this jurisdiction concluded
that the Act was not of universal (application) to all employees in
Zimbabwe. See City of Mutare v Matamisa 1998 (1) ZLR 512 (S), wherein
despite the wording of the section providing that the Act applied to
all employees, this court held that it was not obligatory for the
City of Mutare to obtain the approval of the Minister as provided for
in s2 of the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations S.I. 371 of 1985.
Effectively,
therefore the court found that employees of urban councils were not
covered by the Act.
Subsections
2 and 3 of the current Act were promulgated by Act 7 of 2005 and as a
consequence, with the exception of those specifically excluded by the
section, all employees were brought under the umbrella of the
Act.”(The underlining is mine)
The
Supreme Court having pronounced that the Labour Act applies to all
employees except those specifically excluded, there is really nothing
for this court to do anymore in that regard.
This
court is bound by that pronouncement.
It
was not suggested that the applicants fall within the category or a
group of employees that are specifically excluded by s3. They are
mere council employees and therefore fall within the umbrella
expression “all employers and employees” used in s3(1) of the
Act.
I
therefore agree with Mr Kwaramba that the applicants were indeed
suspended in terms of a law that is applicable to them. As such the
suspensions cannot be said to be unlawful.
I
am aware that Mr Madhuku's approach has been that the 2 statutes
must be interpreted in order to give effect to both of them unless
one has been repealed in specific terms or impliedly and that this
court must construe s140 in such a way as to exclude only the
provisions in subsection (1) allowing for summary dismissal and save
the other provisions setting out the procedure for suspension and the
conduct of an inquiry.
Indeed
it is a principle of our rules of statutory interpretation that
statutes must be read together and the language of both construed as
far as possible to be consistent with the other as long that other
does not, in express terms, modify or repeal the other.
However,
there is certainly no way the 2 statutes forming the basis of the
present litigation can be reconciled.
This
is because s3 of the Labour Act is worded in such clear language
which cannot be construed in any other way than that it applies to
the applicants and the first respondent. It is a provision which is
so inconsistent with or repugnant to s140 of the Urban Councils Act
that the two cannot stand together. See Kent N.O v South African
Railways and Anor 1946 AD 398 at 405; Wendywood Development (Pty) Ltd
v Rieger & Anor 1971 (3) SA 29 (A) at 38 A-C (both quoted with
approved in Tamanikwa & Ors, supra).
As
if that was not enough, there is another sweeping provision which
militates against any attempt to enforce s140. It is s12B which 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 of an employment code, the employer shall comply with
the model code made in terms of s101(9).”
It
is common cause that the model code referred to therein is the Labour
(National Employment Code) Regulations, 2006 S.I 15/06.
It
is the very code under which the applicants have been suspended, the
one which the applicants have urged of me the finding that a
suspension under it is null and void.
The
Labour Act which I have found to apply to the parties herein
requires, in very emphatic language that an employer to which it
applies, should only dismiss an employee either in terms of an
employment code or in terms of S.I. 15/06.
The
present employer has not yet dismissed the employees but has shown
that it has suspended them in terms of the latter code.
That
is lawful.
The
respondents have urged of me the dismissal of the application on the
superior scale.
In
my view there is no basis for such an award. In fact the application
raises quite important legal issues which needed to be settled.
We
have 2 pieces of legislation emanating from the same law maker which
set out procedures for disciplinary employees.
The
applicants were therefore more than entitled to bring the application
for a pronouncement on their rights.
This
is a case where each party should bear its own costs.
In
the result it is ordered that;
1.
The application is hereby dismissed.
2.
Each party shall bear its own costs.
Lovemore
Madhuku Lawyers, applicants legal practitioners
Mbidzo,
Muchadehama & Makoni, respondents legal practitioners
