Legal Personality re: Proceedings Against a Corporate Entity and the Citation of Company Executives

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

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

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

BACKGROUND FACTS

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

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

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

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

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

Employment Contract re: Termination iro Constructive Dismissal

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment Contract re: Forced Labour

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The respondents argue, before this Court, that the remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01].

Final Orders re: Procedural Irregularities & Discretion of Court to Condone, Interfere, Dismiss, Strike, Remit or Set Aside

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE DISMISSAL OF THE CLAIM

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

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

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

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

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

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

I cannot agree more with the above remarks....,.

1....,.

2. The portion of the judgment..., dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE DISMISSAL OF THE CLAIM

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

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

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

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

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

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

I cannot agree more with the above remarks....,.

1....,.

2. The portion of the judgment..., dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

Pleadings re: Abandoned Pleadings

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1....,.

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

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

The last claim is for US$588,000

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

The claim is not for damages in lieu of reinstatement.

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

Rules of Construction or Interpretation re: Approach

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

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

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

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

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

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

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

Jurisdiction re: Approach, Concurrent Jurisdiction, Statutory, Procedural and Contractual Jurisdictional Ousting

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROCEEDINGS BEFORE THIS COURT

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

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

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

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

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

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

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

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

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

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

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

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

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

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

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

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

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE(S) ARISING FOR DETERMINATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPROACH TO CONSTITUTIONAL INTERPRETATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

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

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

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

(b)–(d)…,. (not relevant)

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

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

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

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

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

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

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

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

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

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

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

All these courts are established pursuant to the Constitution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jurisdiction re: Labour Proceedings

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROCEEDINGS BEFORE THIS COURT

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

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

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

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

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

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

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

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

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

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

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

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

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

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

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

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

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE(S) ARISING FOR DETERMINATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPROACH TO CONSTITUTIONAL INTERPRETATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

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

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

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

(b)–(d)…,. (not relevant)

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

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

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

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

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

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

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

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

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

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

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

All these courts are established pursuant to the Constitution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jurisdiction re: Judicial Deference iro Specialised Courts and Tribunals

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROCEEDINGS BEFORE THIS COURT

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

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

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

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

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

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

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

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

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

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

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

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

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

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

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

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

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE(S) ARISING FOR DETERMINATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPROACH TO CONSTITUTIONAL INTERPRETATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

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

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

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

(b)–(d)…,. (not relevant)

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

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

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

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

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

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

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

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

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

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

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

All these courts are established pursuant to the Constitution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rules of Construction or Interpretation re: Approach iro Conflicting Statutes & Principle of Lex Posterior Priori Derogant

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROCEEDINGS BEFORE THIS COURT

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

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

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

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

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

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

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

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

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

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

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

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

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

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

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

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

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE(S) ARISING FOR DETERMINATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPROACH TO CONSTITUTIONAL INTERPRETATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

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

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

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

(b)–(d)…,. (not relevant)

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

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

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

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

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

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

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

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

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

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

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

All these courts are established pursuant to the Constitution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rules of Construction or Interpretation re: Constitutional Provisions

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROCEEDINGS BEFORE THIS COURT

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

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

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

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

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

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

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

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

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

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

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

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

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

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

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

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

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE(S) ARISING FOR DETERMINATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPROACH TO CONSTITUTIONAL INTERPRETATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

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

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

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

(b)–(d)…,. (not relevant)

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

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

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

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

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

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

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

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

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

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

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

All these courts are established pursuant to the Constitution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

Rules of Construction or Interpretation re: Severability of Statutory Provisions and the In Pari Materia Principle

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)–(d)…,. (not relevant)

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.”

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

Employment Contract re: Transfer or Secondment of Employees iro Acting Role, Interim Contractual Lacuna & Quantum Meruit

It should be stressed, that, in terms of section 12 of the Labour Act, every person who performs work for any other person and is entitled to receive remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

Arbitration re: Conciliation, Disputes of Interest and Right & Confirmation and Registration of Labour Officer Rulings

The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act.

The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration, or, that failing, proceed in terms of section 93(5) of the Labour Act.

Jurisdiction re: Monetary, Cause of Action and Domestic Territorial Jurisdiction

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)–(d)…,. (not relevant)

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.”

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

WHETHER APPELLANT'S CLAIMS A QUO FELL UNDER THE LABOUR ACT?

The first claim was for US$8,909=14

There can be no doubt this claim was labour-related. It is said, in the declaration, that, through illegitimate influence, force, and might the appellant was made to relinquish his position on 6 October 2015 but was however ordered to continue working for no outlay until 6 November 2015.

It was on that basis the appellant claimed “damages” for the period 1 October 2015 to 6 October 2015 in the sum of $8,909=14 computed on the basis of the salary that the plaintiff was earning.

Although called “damages”, it is clear that the claim is, in reality, for outstanding pay for work performed during the period in question. It is for that reason that the computation was based on the salary that the plaintiff had been earning prior to the termination.

It should be stressed, that, in terms of section 12 of the Labour Act, every person who performs work for any other person and is entitled to receive remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

The second was the claim for $69,492

This claim is for accrued leave days and is clearly a labour matter. The appellant accepts that this claim is essentially a labour matter.

The third was the claim for US$90,000

In terms of para 2:3 of the declaration, the appellant says he was entitled, by agreement, to a motor vehicle, or value of such motor vehicle, being $90,000. It is alleged that the respondents refused to allow the appellant to recover this benefit. There is no doubt this is a benefit that accrued to the appellant by virtue of his contract of employment and is clearly a labour matter.

The last claim is for US$588,000

This is said to represent damages for loss of employment prospects pursuant to the public media coverage which is said to have denigrated the appellant's personality. This claim, poorly formulated as it was, is clearly not labour related, and appears to be for delictual damages arising from defamatory statements made in the public media. The claim is not for damages in lieu of reinstatement.

The respondents accept that this claim does not fall to be determined under the Labour Act.

CLAIMS 1–3 CONSTITUTED AN UNFAIR LABOUR PRACTICE?

Section 13 of the Labour Act makes it clear that whenever any person's employment is terminated, such person shall be entitled to the wages and benefits due to him up to the time of such termination, including benefits with respect to outstanding vacation and notice period.

An employer shall pay such benefits as soon as is reasonably practical and failure to do so shall constitute an unfair labour practice.

The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act.

The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration, or, that failing, proceed in terms of section 93(5) of the Labour Act.

The first three claims were therefore matters that should have been handled by a labour officer in terms of section 93 of the Labour Act.

Clearly, the High Court was correct in holding that it had no jurisdiction to deal with these three claims. It was, however, wrong in upholding the plea in bar in respect of the last claim....,.

On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe.

The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices, which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act....,.

1....,.

2. The portion of the judgment of the court a quo upholding the plea-in-bar in respect of the claim for damages in the sum of $588,000 and dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

3. The remaining portion of the judgment of the court a quo upholding the plea in bar in respect of the claims for US$8,909=14, US$69,492=69 and US$90,000 is upheld.

4. The claim for $588,000 delictual damages is remitted to the court a quo to be handled in terms of the rules of that court.

Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency

In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC71-14, this Court remarked as follows:

"It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal, on the latter basis, is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.”…,.

Cause of Action and Draft Orders re: Exceptions, Special Pleas, Plea in Bar and Plea in Abatement iro Approach

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)–(d)…,. (not relevant)

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.”

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

WHETHER APPELLANT'S CLAIMS A QUO FELL UNDER THE LABOUR ACT?

The first claim was for US$8,909=14

There can be no doubt this claim was labour-related. It is said, in the declaration, that, through illegitimate influence, force, and might the appellant was made to relinquish his position on 6 October 2015 but was however ordered to continue working for no outlay until 6 November 2015.

It was on that basis the appellant claimed “damages” for the period 1 October 2015 to 6 October 2015 in the sum of $8,909=14 computed on the basis of the salary that the plaintiff was earning.

Although called “damages”, it is clear that the claim is, in reality, for outstanding pay for work performed during the period in question. It is for that reason that the computation was based on the salary that the plaintiff had been earning prior to the termination.

It should be stressed, that, in terms of section 12 of the Labour Act, every person who performs work for any other person and is entitled to receive remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

The second was the claim for $69,492

This claim is for accrued leave days and is clearly a labour matter. The appellant accepts that this claim is essentially a labour matter.

The third was the claim for US$90,000

In terms of para 2:3 of the declaration, the appellant says he was entitled, by agreement, to a motor vehicle, or value of such motor vehicle, being $90,000. It is alleged that the respondents refused to allow the appellant to recover this benefit. There is no doubt this is a benefit that accrued to the appellant by virtue of his contract of employment and is clearly a labour matter.

The last claim is for US$588,000

This is said to represent damages for loss of employment prospects pursuant to the public media coverage which is said to have denigrated the appellant's personality. This claim, poorly formulated as it was, is clearly not labour related, and appears to be for delictual damages arising from defamatory statements made in the public media. The claim is not for damages in lieu of reinstatement.

The respondents accept that this claim does not fall to be determined under the Labour Act.

CLAIMS 1–3 CONSTITUTED AN UNFAIR LABOUR PRACTICE?

Section 13 of the Labour Act makes it clear that whenever any person's employment is terminated, such person shall be entitled to the wages and benefits due to him up to the time of such termination, including benefits with respect to outstanding vacation and notice period.

An employer shall pay such benefits as soon as is reasonably practical and failure to do so shall constitute an unfair labour practice.

The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act.

The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration, or, that failing, proceed in terms of section 93(5) of the Labour Act.

The first three claims were therefore matters that should have been handled by a labour officer in terms of section 93 of the Labour Act.

Clearly, the High Court was correct in holding that it had no jurisdiction to deal with these three claims. It was, however, wrong in upholding the plea in bar in respect of the last claim.

THE DISMISSAL OF THE CLAIM

It is the appellant's submission, that, after determining as it did that it had no jurisdiction, the court a quo should simply have declined jurisdiction and not dismissed the claim with costs. The respondents, in oral submissions, disagreed, stating that the dismissal was not final and that the appellant could still bring the matter before the appropriate court.

I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper.

The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss.

In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC71-14, this Court remarked as follows:

"It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal, on the latter basis, is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.”…,.

I cannot agree more with the above remarks.

COSTS

Whether the High Court has jurisdiction in all matters, including matters of labour and employment, has been the subject of conflicting decisions of the High Court. Until such time as this Court were to make a definitive pronouncement on the matter, parties to litigation were at liberty to cite cases on both sides of the divide that supported their respective positions on the matter.

It seems to me, that, in the circumstances, each party should bear its own costs, both in the court a quo and this Court.

DISPOSITION

On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe.

The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices, which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.

Accordingly, it is ordered as follows:

1. The appeal succeeds, in part, with each party paying its own costs.

2. The portion of the judgment of the court a quo upholding the plea-in-bar in respect of the claim for damages in the sum of $588,000 and dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

3. The remaining portion of the judgment of the court a quo upholding the plea in bar in respect of the claims for US$8,909=14, US$69,492=69 and US$90,000 is upheld.

4. The claim for $588,000 delictual damages is remitted to the court a quo to be handled in terms of the rules of that court.

Employment Contract re: Contractual and Terminal Benefits, Vested Rights of Ex-Employees & Retention of Company Property

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)–(d)…,. (not relevant)

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.”

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

WHETHER APPELLANT'S CLAIMS A QUO FELL UNDER THE LABOUR ACT?

The first claim was for US$8,909=14

There can be no doubt this claim was labour-related. It is said, in the declaration, that, through illegitimate influence, force, and might the appellant was made to relinquish his position on 6 October 2015 but was however ordered to continue working for no outlay until 6 November 2015.

It was on that basis the appellant claimed “damages” for the period 1 October 2015 to 6 October 2015 in the sum of $8,909=14 computed on the basis of the salary that the plaintiff was earning.

Although called “damages”, it is clear that the claim is, in reality, for outstanding pay for work performed during the period in question. It is for that reason that the computation was based on the salary that the plaintiff had been earning prior to the termination.

It should be stressed, that, in terms of section 12 of the Labour Act, every person who performs work for any other person and is entitled to receive remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

The second was the claim for $69,492

This claim is for accrued leave days and is clearly a labour matter. The appellant accepts that this claim is essentially a labour matter.

The third was the claim for US$90,000

In terms of para 2:3 of the declaration, the appellant says he was entitled, by agreement, to a motor vehicle, or value of such motor vehicle, being $90,000. It is alleged that the respondents refused to allow the appellant to recover this benefit. There is no doubt this is a benefit that accrued to the appellant by virtue of his contract of employment and is clearly a labour matter.

The last claim is for US$588,000

This is said to represent damages for loss of employment prospects pursuant to the public media coverage which is said to have denigrated the appellant's personality. This claim, poorly formulated as it was, is clearly not labour related, and appears to be for delictual damages arising from defamatory statements made in the public media. The claim is not for damages in lieu of reinstatement.

The respondents accept that this claim does not fall to be determined under the Labour Act.

CLAIMS 1–3 CONSTITUTED AN UNFAIR LABOUR PRACTICE?

Section 13 of the Labour Act makes it clear that whenever any person's employment is terminated, such person shall be entitled to the wages and benefits due to him up to the time of such termination, including benefits with respect to outstanding vacation and notice period.

An employer shall pay such benefits as soon as is reasonably practical and failure to do so shall constitute an unfair labour practice.

The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act.

The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration, or, that failing, proceed in terms of section 93(5) of the Labour Act.

The first three claims were therefore matters that should have been handled by a labour officer in terms of section 93 of the Labour Act.

Clearly, the High Court was correct in holding that it had no jurisdiction to deal with these three claims. It was, however, wrong in upholding the plea in bar in respect of the last claim.

THE DISMISSAL OF THE CLAIM

It is the appellant's submission, that, after determining as it did that it had no jurisdiction, the court a quo should simply have declined jurisdiction and not dismissed the claim with costs. The respondents, in oral submissions, disagreed, stating that the dismissal was not final and that the appellant could still bring the matter before the appropriate court.

I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper.

The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss.

In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC71-14, this Court remarked as follows:

"It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal, on the latter basis, is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.”…,.

I cannot agree more with the above remarks.

COSTS

Whether the High Court has jurisdiction in all matters, including matters of labour and employment, has been the subject of conflicting decisions of the High Court. Until such time as this Court were to make a definitive pronouncement on the matter, parties to litigation were at liberty to cite cases on both sides of the divide that supported their respective positions on the matter.

It seems to me, that, in the circumstances, each party should bear its own costs, both in the court a quo and this Court.

DISPOSITION

On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe.

The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices, which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.

Accordingly, it is ordered as follows:

1. The appeal succeeds, in part, with each party paying its own costs.

2. The portion of the judgment of the court a quo upholding the plea-in-bar in respect of the claim for damages in the sum of $588,000 and dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

3. The remaining portion of the judgment of the court a quo upholding the plea in bar in respect of the claims for US$8,909=14, US$69,492=69 and US$90,000 is upheld.

4. The claim for $588,000 delictual damages is remitted to the court a quo to be handled in terms of the rules of that court.

Unfair Labour Practices and the Constitutional Right to Fair Labour Practices re: Approach

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)–(d)…,. (not relevant)

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.”

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

WHETHER APPELLANT'S CLAIMS A QUO FELL UNDER THE LABOUR ACT?

The first claim was for US$8,909=14

There can be no doubt this claim was labour-related. It is said, in the declaration, that, through illegitimate influence, force, and might the appellant was made to relinquish his position on 6 October 2015 but was however ordered to continue working for no outlay until 6 November 2015.

It was on that basis the appellant claimed “damages” for the period 1 October 2015 to 6 October 2015 in the sum of $8,909=14 computed on the basis of the salary that the plaintiff was earning.

Although called “damages”, it is clear that the claim is, in reality, for outstanding pay for work performed during the period in question. It is for that reason that the computation was based on the salary that the plaintiff had been earning prior to the termination.

It should be stressed, that, in terms of section 12 of the Labour Act, every person who performs work for any other person and is entitled to receive remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

The second was the claim for $69,492

This claim is for accrued leave days and is clearly a labour matter. The appellant accepts that this claim is essentially a labour matter.

The third was the claim for US$90,000

In terms of para 2:3 of the declaration, the appellant says he was entitled, by agreement, to a motor vehicle, or value of such motor vehicle, being $90,000. It is alleged that the respondents refused to allow the appellant to recover this benefit. There is no doubt this is a benefit that accrued to the appellant by virtue of his contract of employment and is clearly a labour matter.

The last claim is for US$588,000

This is said to represent damages for loss of employment prospects pursuant to the public media coverage which is said to have denigrated the appellant's personality. This claim, poorly formulated as it was, is clearly not labour related, and appears to be for delictual damages arising from defamatory statements made in the public media. The claim is not for damages in lieu of reinstatement.

The respondents accept that this claim does not fall to be determined under the Labour Act.

CLAIMS 1–3 CONSTITUTED AN UNFAIR LABOUR PRACTICE?

Section 13 of the Labour Act makes it clear that whenever any person's employment is terminated, such person shall be entitled to the wages and benefits due to him up to the time of such termination, including benefits with respect to outstanding vacation and notice period.

An employer shall pay such benefits as soon as is reasonably practical and failure to do so shall constitute an unfair labour practice.

The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act.

The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration, or, that failing, proceed in terms of section 93(5) of the Labour Act.

The first three claims were therefore matters that should have been handled by a labour officer in terms of section 93 of the Labour Act.

Clearly, the High Court was correct in holding that it had no jurisdiction to deal with these three claims. It was, however, wrong in upholding the plea in bar in respect of the last claim.

THE DISMISSAL OF THE CLAIM

It is the appellant's submission, that, after determining as it did that it had no jurisdiction, the court a quo should simply have declined jurisdiction and not dismissed the claim with costs. The respondents, in oral submissions, disagreed, stating that the dismissal was not final and that the appellant could still bring the matter before the appropriate court.

I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper.

The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss.

In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC71-14, this Court remarked as follows:

"It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal, on the latter basis, is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.”…,.

I cannot agree more with the above remarks.

COSTS

Whether the High Court has jurisdiction in all matters, including matters of labour and employment, has been the subject of conflicting decisions of the High Court. Until such time as this Court were to make a definitive pronouncement on the matter, parties to litigation were at liberty to cite cases on both sides of the divide that supported their respective positions on the matter.

It seems to me, that, in the circumstances, each party should bear its own costs, both in the court a quo and this Court.

DISPOSITION

On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe.

The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices, which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.

Accordingly, it is ordered as follows:

1. The appeal succeeds, in part, with each party paying its own costs.

2. The portion of the judgment of the court a quo upholding the plea-in-bar in respect of the claim for damages in the sum of $588,000 and dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

3. The remaining portion of the judgment of the court a quo upholding the plea in bar in respect of the claims for US$8,909=14, US$69,492=69 and US$90,000 is upheld.

4. The claim for $588,000 delictual damages is remitted to the court a quo to be handled in terms of the rules of that court.

Costs re: Matter Determined on a Point of Law Raised by the Court, Misdirection by the Court & Public Interest Litigation

Whether the High Court has jurisdiction in all matters, including matters of labour and employment, has been the subject of conflicting decisions of the High Court. Until such time as this Court were to make a definitive pronouncement on the matter, parties to litigation were at liberty to cite cases on both sides of the divide that supported their respective positions on the matter.

It seems to me, that, in the circumstances, each party should bear its own costs, both in the court a quo and this Court.

Costs re: No Order as to Costs or No Costs Order iro Approach

Whether the High Court has jurisdiction in all matters, including matters of labour and employment, has been the subject of conflicting decisions of the High Court. Until such time as this Court were to make a definitive pronouncement on the matter, parties to litigation were at liberty to cite cases on both sides of the divide that supported their respective positions on the matter.

It seems to me, that, in the circumstances, each party should bear its own costs, both in the court a quo and this Court.

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SC161-20 - STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD

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