CHITAPI
J:
The
applicant is a former employee of the respondent. He was employed in
the position of Asset Protection Officer.
On
11 November 2014, the applicant was served with a notice to terminate
his employment with the respondent. The notice period which the
applicant was given was three (3) months effective from 11 November
2014, to be served from home i.e. the applicant was not to report for
work but would nonetheless be paid his salary.
In
the aforesaid notice to terminate the applicants' employment
contract the respondent stated:
“……..
the corporate hereby undertakes to pay the notice period and all
outstanding payments due to you on a monthly basis spreading over a
period of four months through the corporate's payroll until all
such is extinguished in full. These payments shall be made subject to
such statutory deductions as are applicable. A statement of account
denoting how much you are entitled to shall be availed to you by the
30th
November 2014. Kindly approach the human resources department for
your termination clearances and statement of account, and affix your
signature to the tear off below to signal your receipt of this letter
…..”
The
letter of notice was delivered upon the applicant who refused to sign
the tear off slip. Nothing turns upon the applicant's refusal to
sign the tear off slip because the validity of the termination being
a unilateral act by the respondent (employer) would not require
acceptance by the applicant (employee) through signing the letter. It
is sufficient for its validity that the letter was conveyed upon the
applicant.
By
letter dated 29 November 2014, the respondent wrote to the applicant
setting out the amounts which it acknowledged to be owing by it to
the applicant. The letter referred to is attached as annexure 'C'
to the applicant's founding affidavit and reads in material part as
follows:
Re:
Statement of account for Aswell Nyanzara EC No. BD 1013
“We
refer to the above matter.
Please
be advised that Mbada Diamonds acknowledges owing you a total amount
of USD$9,695-02 which was calculated starting from 1 February 2010
being the date of engagement. The detailed breakdown is as follows:
Item Value
-
Gratuity
payable $1,331-95
-
90
days of CILL payable $3,073-85
-
0.00
months historic overtime $-
-
April
& May 2014 overtime @ 1.5 $-
-
April
& May 2014 overtime @ 2.0 $ 102-46
-
Back
pay for June & July 2014 $ 576-00
-
Salary
for September, October & November $2,305-38
-
3
months using current work arrangement $2,305-38
Grand
Total $9,695-02
Please
note that all the above amounts are gross figures and as such, are
subject to applicable statutory deductions. Mbada Diamonds will
deduct any loans or amounts advanced to you from the net
amount……………….
A
Zindi (Mr)
The
Human Resources Manager
For
and on behalf of Mbada Diamonds”
As
with the letter of termination of employment on notice which the
applicant refused to sign, he also did not sign the letter setting
out the statement of account.
The
applicant indicates in his answering affidavit that he did not sign
his own copy of Annexure C but signed the one which the respondent
retained. He attributes his failure to sign the letter to the fact
that he is a layman and thought it unnecessary to sign the copy which
he retained and has attached to his application.
Although
the respondent appears to take issue with the failure by the
applicant to sign the statement of account in acknowledgment, it is
in my view a matter or omission of no great moment because the
authenticity of annexure 'C' is common cause between the parties.
I
shall advert to analysing its contents later when I consider the
jurisdictional issues raised by the respondent.
On
5 May 2015, the applicant filed the present court application whose
heading reads 'COURT APPLICATION FOR PAYMENT OF MONEY'. The
application is supported by the applicant's brief affidavit
consisting of 7 paragraphs, the material ones which read as follows:
4.
On 11 November 2014, the respondent terminated my contract of
employment on notice. A copy of letter of termination of contract of
employment is attached hereto marked “B”.
5.
On 29 November 2014, the respondent marked out my terminal benefits
which amounted to $9,695-02. A copy of the statement of account from
the Human Resources Manager is attached hereto marked 'C'.
6.1.
Apart from the $9,695-02, the respondent owed me the following
amounts;
(a)
Night Allowances - $1,941-10 Annexure 'D'.
(b)
Unrefunded portion of the pension fund - $799-20 Annexure “E”.
6.2.
Therefore the total amount of money which I am claiming from the
respondent is $12,435-32 arrived at as follows;
(a)
Terminal Benefits as worked out by the respondent
$9,695-02
(b)
Night Allowances $ 1,941-01
(c)
Unrefunded portion of the Pension Fund
$ 799-20
Total
Due $ 12,435-32
7.
I have not been paid a single cent from these moneys that are due to
me despite demand on several occasions. The respondent has simply
neglected, failed and/or refused to pay. I
am applying for an order granting me the aforesaid sum for purposes
of enforcement
(own underlining).
WHEREFORE
I pay for an order in terms of the Draft
Thus
sworn to at Harare this 5th
day of May, 2015
Signed:
Aswell Nyanzara
Annexures
'D' and 'E' referred to in para 6.1(a) and 6.1.(b) of the
applicant's founding affidavit are respectively, a letter whose
date is not clear but is headed TERMINAL BENEFITS FOR ASWELL NYANZARA
…… NIGHT ALLOWANCE.
Annexure
D is addressed to the respondent and is purportedly written by one E
Munongerwa representing NUMQUI SWZ. There is a date stamp embossed
National Union of Mines Quarrying Iron and Steel Workers of Zimbabwe.
It appears that NUMQUISWZ is the abbreviation for the union. The
letter purports to calculate the applicant's; night allowance at
$1,941-00 as the amount due to the applicant by the respondent.
Annexure
E is a letter whose origins are not clear nor stated except that it
is dated 4 March, 2015, is addressed to the respondents Principal
Officer, a Mr Kennedy Bingwa and is signed by or on behalf of
Alackias Gavure – Administration Manager.
The
letter is headed Mbada Diamonds Pension Fund: Retirement – Nyanzara
Aswell (BD 1013).
The
author of Annexure E states in the letter that the sum of $1,834-58
was transferred into the “members” NMB Bank account number
290073502 on 2 March 2015. The payment represents the full
commutation due to the member (comprising member and employer
contributions together with interest thereon). The writer further
states in the letter that the 'balance retirement capital could not
secure the statutory minimum monthly pension currently pegged at
$30-00. The last paragraph of the letter reads as follows:
“The
member has been refunded the 'funded portion' of his
contributions made up to 30 November 2013. The unfunded portion
amounting $799-20 has not been refunded pending receipt of the
outstanding contributions relating to the period 1 December 2013 to
31 May, 2014.”
In
the draft order, the applicant prays for an order as follows:
“IT
IS ORDERED THAT:
1.
Respondent shall pay applicant $12,435-32 together with interest
thereon at the rate of 5% calculated from the date of service of the
Court Application on Respondent to the date of payment together with
costs of suit on attorney–client scale”.
The
respondent in opposing the application and as shown upon a reading of
its opposing affidavit has raised two issues.
(i)
The first issue is that the dispute between the parties is purely a
labour matter for which this court has no jurisdiction to determine
as the dispute is covered under s13 of the Labour Act, [Chapter
28:01].
As such, so the respondent asserts, the disputes should be dealt with
in terms of s93 of the Labour Act.
(ii)
The second issue raised by the respondent is in two parts, namely;
(a)
that the applicant cannot rely on a document which he has refused to
sign in acknowledgment of its contents and which document was written
on a without prejudice basis and marked so.
(b)
The second part of the second issue raised by the respondent is that
the computations which the applicant has set out are disputed and
have not been acknowledged by the respondent save for the
computations presented by the respondent on condition they are
accepted by the applicant.
The
applicant in the answering affidavit averred that the jurisdiction of
this court arises from the fact that the respondent acknowledged its
indebtedness to the applicant by letter dated 29 November, 2014 i.e.
annexure 'C' to the applicant's founding affidavit.
The
applicant further stated that it was not necessary for him to
acknowledge annexure 'C' by signing it since it is the creditor
(respondent) who should acknowledge the debt and not the applicant to
the applicants' founding affidavit.
The
applicant further stated that there was no prejudice to be suffered
by the Respondent if Annexure C was admitted because albeit it being
marked “without prejudice”, he accepted the respondent's
computations and signed the copy which he left at the respondent's
office but omitted to sign the one which he retained.
The
issue of jurisdiction of this court in Labour matter remains
unsettled with judgments delivered by this court not being uniform or
agreed.
It
is not my intention or function to rationalize or harmonize
conflicting decisions of this court. I will therefore confine myself
to arguments raised herein.
The
crisp issue before me is that, the applicant whose employment
contract with the respondent was terminated, seeks the intervention
of this court that he be granted an order suffering or ordering the
respondent to pay him his terminal benefits which have remained
unpaid since the date of termination of employment.
The
applicant appreciates and accepts that the dispute before me is
labour related.
He
however argues that this court should rule in his favour because
there is no labour dispute to be determined but an enforcement of
payment of terminal benefits. He argues that where the employer has
acknowledged itself to be indebted to the employee, then the employee
can seek relief from this court since the action would derive from an
acknowledgment of debt, so to speak.
This
court has ruled that the jurisdiction of this court has not been
ousted in matters involving an admitted indebtedness by the employer
to an employee even if such indebtedness arises from a labour
relationship. There is extensive discussion on the issue by Kudya J
in McCosh
v
Pioneer
Corporation. Africa Limited
HH164/10. See also Madinda
Ndhlobu v
Highlanders Football
HB95/11; Wellington
Takawira v
CZI Incorporated (Pvt)
Ltd
HH586/13.
Kudya
J did accept and quite rightly so that an acknowledgment of debt can
found a cause of action. He cited the cases Chimutanda
Motor Spares (Pvt) Ltd v
Musare and
Anor
1994 (1) ZLR 310 (H) at 311G; Gondwe
v
Bangajena
1988 (1) ZLR 1 (H) at 2A; and Salisbury
Municipality v
Partington & Anor
1961 (3) SA Z18 (SR) at 222A.
The
learned judge however found against the plaintiff that in his
declaration, the plaintiff based his claim on unpaid arrear salary
and not upon an acknowledgment of debt. That being so, he dismissed
the claim on the basis that its determination was one for the Labour
Court consequent upon the provisions of s89(6) of the Labour Act
[Chapter
28:01].
In
the Madinda
Ndhlovu and
Wellington
Takawira
cases, the learned judges Cheda and Uchena JJ (as the latter then
was) granted the claims for payment of outstanding salaries/benefits
after holding that the employers in both cases had acknowledged the
debts and that therefore there was no labour dispute for
determination under the Labour Act.
In
casu,
this is the applicants' line of reasoning.
If
I follow the decisions of this court which have held that where the
employer has acknowledged itself to be indebted to the employee in a
liquidated amount, the employee can properly sue for relief in this
court on the basis of such acknowledgment of debt, I do not however
find that in the present matter, the employer executed an
acknowledgment of debt. The documents relied upon by the applicant do
not pass for a valid acknowledgment of debt.
By
definition, an acknowledgment of debt is a document which contains an
unequivocal admission of liability by the debtor. The amount owed by
the debtor must be specified and so should the manner and time of
payment. In essence, an acknowledgment of debt must pass the test of
a liquid document, i.e a document which proves the debtor's
indebtedness without extraneous or outside evidence.
In
casu,
the applicant relied on annexure C as herein before quoted.
The
said annexure states that the sum of USD$9,695-02 is a gross figure
from which statutory deductions, loans and advances will have to be
calculated and deducted.
In
my view, the document does not therefore pass the test of an
acknowledgment.
It
is arguable whether an order for payment subject to the stated
deductions would not be appropriate. The applicant does not however
ask the court to grant such an order but prays for payment to him of
the whole amount of USD$9,695-02.
To
make matters worse for the applicant, he also seeks payment of
USD$1,941-01 in night allowances.
This
amount was not acknowledged by the respondent and is disputed in the
opposing affidavit by the respondent.
The
applicant does not in the answering affidavit address the
respondent's denial.
The
same applies with regards the further sum of USD799-20 coined
unrefunded portion of Pension Fund which the applicant claims.
Quite
clearly therefore, the respondent cannot in the light of the
definition of an acknowledgment of debt be held to have acknowledged
itself to be indebted to the applicant in the sum of USD$12,435-32 or
in any of the individual sums of money which add up to the said
USD$12,435-32 claimed in the draft order.
In
passing, I considered the argument raised by the respondent that
annexure 'C' setting out how the figure of USD$9,695-02 was
arrived at is marked 'Without Prejudice” and therefore should not
be relied upon by the applicant as it is inadmissible.
It
is not correct that in the law of evidence, it is a rule of thumb
that a letter marked “without prejudice” cannot be disclosed or
used in proceedings. The words “without prejudice” ought to be
considered as protecting the rights of the writer of the letter. In
other words, the without prejudice statement or letter should not
prejudice the applicant from adopting a contrary position from that
it would have adopted in the without prejudice statement letter or
communication.
I
do not intend however to be labour the issue because of the view
which I have taken of the matter, which view or position is
favourable and therefore not prejudicial to the applicant, that the
letter in issue does not pass for an acknowledgment of debt since the
amounts set out therein are subject to deductions which are not
stated nor agreed to by the parties.
I
have also considered the judgment of Hungwe J in Mhangura
Copper mines
Limited
v
Tayengwa Dugmore Muskwe
HH443/15 and also took into account the fact that the respondent did
not advance the issue of the admissibility of annexure 'C' in its
heads of argument nor indeed during oral argument.
The
respondent was concerned more with the issue of the jurisdiction of
this court to hear the matter.
Since
the applicant's claim was essentially a claim for payment of
terminal benefits arising from a terminated contract of employment, I
asked the applicants legal practitioner Mrs Munjere
to address me on her understanding and interpretation of s13 of the
Labour Act, [Chapter
28:01].
She
submitted that whilst she noted that the section dealt with payment
of wages and benefits upon termination of employment and the
procedure to be followed, the applicant had proceeded on the basis of
an acknowledgment of debt as there was no longer an
Employer/Employee relationship between the parties.
Section
13 of the Labour Act reads as follows:
“13.
Wages and benefits upon termination of employment
(1)
Subject to this Act or any regulations made in terms of this Act,
whether any person;
(a)
Is dismissed from his employment or his
employment is otherwise terminated,
or (own emphasis)
(b)
Resigns from his employment; or
(c)
Is incapacitated from performing his work; or
(d)
Dies;
he
or his estate as the case may be, shall be entitled to the wages and
benefits due to him up to the time of such dismissal, termination,
resignation, incapacitation or death as the case maybe, including
benefits with respect to any outstanding vacation and notice period,
medical aid, social security and any pension, and the employer
concerned shall pay such entitlements to such person or his estate;
as the case may be, as soon as reasonably practicable after such
event, and
failure to do so shall constitute an unfair labour practice”
(own emphasis)
A
simple reading of the section shows that the legislature has codified
the cause of action involving a failure by an Employer to pay within
a reasonable time post termination of employment, wages and other
benefits as set out in the section to the ex-employee. The
legislature has defined the cause of action.
A
failure by an Employer to pay shall
constitute
an unfair labour practice.
It
appears to me therefore that if the wrong of failure to pay the wages
and benefits has been done to or suffered by the employee, his/her
remedy lies in what the Labour Act provides as the corrective remedy
to be followed and implemented when an unfair labour practice has
been committed.
In
the definition section of the Labour Act, an unfair labour practice
is defined as “unfair labour practice” means an unfair labour
practice specified in Part III or declared
to be so in terms of any other provision of this Act.
(own emphasis).
Section
13 of the Labour Act albeit falling under Part IV of the Labour Act,
nonetheless forms part of the Act and is therefore “any other
provision of this Act”.
The
respondent's legal practitioner Mr Ndudzo correctly submitted that
the procedure for dealing with unfair labour practices is provided
for in s93 of the Labour Act.
In
my analysis, the applicant's claim involved the failure by his
ex-employer to pay the applicant wages and benefits to which he is
entitled. It matters not in my view that the employer may have
acknowledged itself to be indebted to the employee nor signed a
document to that effect by whatever name called. The fact is that
what would have been admitted to in such a document will be unpaid
wages or benefits.
For
as long as the acknowledgment involves non-payment of wages and
benefits as listed in s13 of the Labour Act, then the wrong done to
the employee is as defined in the section, i.e. an unfair labour
practice.
It
being an unfair labour practice, it must be dealt with in terms of
the Labour Act.
Section
89(1) of the Labour Act provides for the hearing by the Labour Court
of applications as set out therein and in particular for the referral
of a dispute to a labour officer.
Section
89(6) of the Labour Act provides that only the Labour Court should
act as the court of first instance in hearing and determining matters
set out in s89(1) of the said Act.
In
this case, the applicant has brought an application before the High
Court to remedy an unfair labour dispute. I hold that the applicant
has brought his application before the wrong court and should have
filed the same before the Labour Court.
The
High Court in my view has had its jurisdiction in respect of this
matter ousted by s89(6) of the Labour Act i.e. to bring such an
application to this court as a court of first instance.
It
appears to me that the Labour Court is the correct forum for an
Employee to seek a remedy as a court of first instance where the
Employer has breached s13 of the Labour Act.
The
fact that the Employer may have acknowledged its obligations arising
from its statutory obligations to an ex-employee in a separate
document which may be in the form of an acknowledgment of debt does
not detract from the fact that what is acknowledged to be owing are
the terminal benefits.
The
employee should not go forum shopping to the High Court or
Magistrates Court seeking to sue on an acknowledgment of debt which
in essence will be a case for enforcement of payment of terminal
benefits.
The
relationship of Employer/Employee can loosely be said to continue
after termination of employment as envisaged in s13(1) of the Labour
Act but only for the purposes of giving effect to or enforcement of
payment of terminal benefits.
The
Labour Act further provides as follows in the ensuing sections:
“13(2)
Any employer who without the Ministers' permission withholds or
unreasonably delays the payment of any wages or benefits owed in
terms of subsection (1) shall be guilty of an offence and liable to a
fine not exceeding level seven or to imprisonment for a period not
exceeding two years or to both such fine and such imprisonment.
(3)
A court convicting an employer of an offence in terms of subsection
(2) my order him to
pay
–
(a)
to the employee concerned; or
(b)
to any person specified by it for the benefit of the employee
concerned; in addition to any other penalty which it may impose, an
amount which, in its opinion, will adequately compensate the employee
concerned for any prejudice or loss he had suffered as a result of
the contravention concerned, within such period and in such
instalments as may be fixed by such court.
(4)
The court may at any time on the application of the employer/employee
or specified person concerned for good cause shown, vary on
order made in terms of subsection (3).
(5)
Sections 348 and 349 of the Criminal Procedure and Evidence Act
[Chapter
9:07]
shall apply, mutatis
mutandis,
in relation to the amount specified in an order in terms of
subsection (3) as if such amount were a fine referred to in those
sections.
(6)
Nothing in this section shall be construed as precluding a person
referred to in subsection
(1)
or his representative or the executor of his estate, as the case may
be, from claiming over and above any wages or benefits to which
he or his estate is entitled in terms of subsection (1) damages
for any prejudice or loss suffered in connection with such
dismissal, termination, resignation, incapacitation or death, as the
case may be.”
Section
347 of the Criminal Procedure & Evidence Act provides for the
imposition of imprisonment or community service in default of payment
of a fine as more fully provided for therein.
Section
348 of the same Act, empowers and gives a discretion to the High
Court or Magistrates Court where such court has sentenced an offender
to pay a fine, to issue a warrant or writ addressed to the Sheriff or
Messenger of Court as the case may be authorizing him to levy the
amount of a fine by “attachment and sale of any movable property
belonging to the offender,” notwithstanding that, “ the sentence
directs that in default of payment of the fine, the offender shall be
imprisoned or shall be permitted to render community service.”
In
summary therefore, apart from an ex-Employee taking steps to remedy
the wrong committed by his ex-Employer in not paying the former his
wages and benefits as provided for in s13(1) of the Labour Act
through the unfair labour practice route, the employee can also
report such defaulting ex-employer to the police to be dealt with by
the Criminal courts since the failure to pay wages and benefits
without Ministerial permission or reasonable grounds is criminalized.
The
criminal court upon convicting a defaulting ex-Employer will act in
terms of sections 347 and 348 of the Criminal Procedure and Evidence
Act.
At
the hearing of this application, I asked counsel for the applicant
whether she had ever thought of using the criminal route to enforce
her client's (the Employee's) claim. Counsel readily admitted
that she had not thought of utilizing the option.
There
is a growing trend by Employee representatives to rush to the High
Court with labour matters involving non-payment of terminal benefits
by Employers to Employees whose contracts of employment would have
been terminated.
Ingenious
arguments are raised to persuade the High Court to agree to exercise
jurisdiction. Such ingenuity involves arguing as in the present
application that the cause of action arose from an acknowledgment of
debt which strictly speaking would not be true. The argument in some
cases has found favour with this court and jurisdiction has been
exercised.
In
my view and as already stated, the non-payment of wages and benefits
as set out in section 13(1) of the Labour Act whether reduced to
writing or acknowledged in an acknowledgment of debt should not
change the true facts.
If
for example the argument that non-payment of wages and benefits which
is clearly an unfair labour practice and a crime changes its
character once reduced into an acknowledgment of debt is accepted and
that it is no longer a labour dispute, it means that the Employee can
no longer report the Employer to be dealt with in terms of s13(2) of
the Labour Act i.e. to be prosecuted.
The
intention of the legislature in enacting ss13(1) and 13(2) of the
Labour Act was clearly to enable an Employee who is owed terminal
benefits by his Employer to use those provisions to enforce payment.
The
legislature created the necessary machinery in the Labour Act to deal
with the issues of non-payment by either leaving it to the Employee
to invoke the unfair labour practice route or the criminal route.
I
will leave it to be determined another day whether it would be a
defence for an Employer to argue that a breach of ss13(1) and 13(2)
of the Labour Act can be defeated by a defence that the parties
(Employer/Employee) are now governed by an acknowledgment of debt in
their relationship.
I
however hold that in my reading of the provisions of the Labour Act,
such a defence would not hold sway.
The
last issue which I address is the impact of s171 of the Constitution
of Zimbabwe Amendment (No 20) Act 2013. The section reads as follows:
“171.
Jurisdiction
of High Court
(1)
The High Court –
(a)
has original jurisdiction over all civil and criminal matter in
Zimbabwe;
(b)
has jurisdiction to supervise magistrates courts and other
subordinate courts and to review their decisions.”
I
am aware of some decisions of this court like for example
Confederation of Zimbabwe
Industries v Rita Marque Mbatha HH125/15 and Water
and Allied
Workers
Union
of Zimbabwe vs City of Harare HH238/15
in which this court has held that the effect of s171(1)(a) of the
Constitution is to restore the jurisdiction of the High Court in
labour matters because the section gives the High Court original
jurisdiction over all civil and criminal matters.
Labour
matters constitute a species of civil matters and hence the High
Court has original jurisdiction over them.
The
interpretation given by this court in these matters is therefore to
the effect that s89(6) of the Labour Act has been overridden by
s171(1)(a) of the Constitution and that the original jurisdiction of
the High Court extends to these civil matters of a labour nature in
which the Labour Court exercised exclusive jurisdiction prior to the
new constitution being promulgated.
I
find myself in respectful disagreement with the interpretation which
has been placed upon s171(1)(a) of the constitution to the extent that
it should be read granting the High Court jurisdiction over labour
matters and as overriding s89(6) of the Labour Act.
The
constitution creates in ss163 and 172, a labour court which is a
special court. The sections read;
“163
The
judiciary
(1)
The judiciary of Zimbabwe consists of –
(a)
The Chief Justice, the Deputy Chief Justice and the other judges of
the constitutional court;
(b)
The judges of the Supreme court;
(c)
The Judge President of the high Court and the other judges of the
court;
(d)
The Judge President of the Labour Court and the other judges of that
court;
(e)
The Judge President of the Administrative Court and the other judges
of that court; and
(f)
Persons presiding over magistrates courts, customary law courts and
other courts established by or under an Act of Parliament.”
The
Constitutional Court, Supreme Court and High Court are respectively
in sections 166, 168 and 170 described as “superior courts of
record”.
These
three courts in terms of s176 of the constitution have inherent
powers to protect and regulate their own processes and to develop the
common law or the customary law taking into account the interests of
justice and the provisions of this constitution.
The
Labour Court is simply described as a court of record as with the
Administrative Court in terms of ss 172 and 173 respectively.
The
two courts do not enjoy original jurisdiction over all civil and
criminal matters unlike the High Court.
On
the contrary, the jurisdiction of these other courts and their powers
are provided for by Acts of Parliament. Their jurisdictions then
become limited to what the Acts of Parliament will have provided for.
In
the case of the Labour Court, s172 provides as follows:
“(1)
The Labour Court is a court of record and consists of –
(a)………………………
(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.”
My
reading of s172(2) and (3) leads me to the conclusion that s171(1)(a)
of the constitution has not altered s89(6) of the Labour Act.
Sections
(2) and (3) of s172 of the constitution provides that an Act of
Parliament should provide for the jurisdiction of the Labour Court in
Labour Matters.
The
current Labour Act has done so and in s89(6) has provided for such
over matters stated therein exclusively to the Labour Court. Section
89(6) of Labour Court reads that:
“No
court, other than the Labour Court, shall have jurisdiction in the
first
instance
to hear and determine any application, appeal or matter referred to
in subsection (1).”
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.
I
do not read s171(1)(a) of the constitution which provides for
original jurisdiction of the High Court over all civil matters as
conflicting with s89(6) of the Labour Act.
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
purposive interpretation approach is in the circumstances to be
preferred.
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 specified matters by the legislature, thus excluding
other courts from exercising such exclusive powers is proper.
The
Labour Act in s89(6) provides that the Labour Court should be the
court of first instance in the matters listed in that section.
The
High Court in my judgment should exercise its original jurisdiction
taking into account existing legislative provisions in place unless
the same are unconstitutional or adjudged to be so.
For
example, the High Court in the exercise of its original jurisdiction
in a labour matter falling under s89(1) of the Labour Act would
properly refuse to deal with a Labour matter as a court of first
instance on the basis that an enactment provides for the Labour Court
as the first forum which should be petitioned.
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.
Original
jurisdiction over civil matters should not be construed to mean that
the High Court will agree to exercise jurisdiction over all matters
irrespective of the fact there would be existing legislation
governing the procedure, conduct or determination of particular
matters. The constitution recognises the existence of subordinate and
special courts and creates them. I do not read anything in s171(a) of
the constitution which provides that the legislature cannot in
providing for the jurisdiction of the Labour Court give exclusive
jurisdiction over certain matters to that court and by implication
thus limiting or excluding jurisdictional powers of other courts to
deal with such matters.
It
would not in my view amount to defeating the exercise of original
jurisdiction over a matter where a litigant makes a direct approach
to the High Court in respect of a matter listed in s89(1) of the
Labour Act and the High Court Rules that the litigant should by
virtue of s89(6) of the Labour Act direct his matter to the Labour
Court as the court of first instance. Approaching the Labour Court
first as required by s89(6) would be the domestic remedy which a
party must first seek.
Disposition
In
view of the position which I have taken of the matter and the
conclusions I have reached on the jurisdiction of this court
vis-a-vis
the provisions of the Labour Act and the Constitution I would
accordingly rule as follows;
This
application is dismissed with no order as to costs.
Hungwe
& Partners,
applicant's legal practitioners
Mutamangira
& Associates,
respondent's legal practitioners
