Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents.

I will deal with the position of the fourth respondent first.

The fourth respondent contended that it does not have any interest in this matter and had been wrongly joined as a party. No relief is being claimed against it. It had been unnecessarily dragged to defend this matter in which it had no real interest. It prayed for costs on a higher scale.

The applicants contend that it was made clear in the applicants' papers that no order was being sought against the fourth respondent. It had been cited as an interested party. The fourth respondent had, in the past, demanded that it be made part of the 2015 wage negotiation process. It had been cited out of an abundance of caution.

It is trite that a party who has a direct or substantial interest in the result of any litigation and whose interest might be prejudicially affected thereby must be afforded the opportunity to be joined as a party: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd and Others HH108-06; see also Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Ors 2003 (2) ZLR 437 (H)…,.

In casu, the issue is whether or not the fourth respondent had a direct and substantial interest in the subject matter of the action, i.e. legal interest in the subject matter of the litigation which might be affected prejudicially by the judgment of the court.

The only reference to the fourth respondent in the applicants founding papers is in paragraphs 10, 18 and 19.

In paragraph 10, the fourth respondent is identified. In paragraphs 18 and 19, the fourth respondent is mentioned, in passing, as a rival union to the first respondent and that the unions have clashed over the membership of the applicants' employees.

A perusal of the Provisional Order will reflect that no relief is being sought by the respondent.

There is no averment in the applicants, as submitted, papers, that no order is being sought against the fourth respondent and that it had been cited as an interested party.

It is clear from the above that the fourth respondent has no direct and substantial legal interest in the subject matter of the judgement that this court might make. The applicants can carry into effect the judgment without adversely affecting the position of the fourth respondent.

This is a typical case of misjoinder where a party who is not necessary is joined to proceedings.

The applicants cannot escape an order to indemnify the fourth respondent for the expenses to which he has been put through having to defend this application. This could have been avoided by averring in the founding papers that no relief was being sought against the fourth respondent and has been cited as an interested party. The fourth respondent would not have filed papers in opposition.

The point in limine is upheld and the applicants are to pay the fourth respondent's costs.

Citation and Joinder re: Approach iro Third Party Notices ito Nominal Party and Financial Interest Party

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents.

I will deal with the position of the fourth respondent first.

The fourth respondent contended that it does not have any interest in this matter and had been wrongly joined as a party. No relief is being claimed against it. It had been unnecessarily dragged to defend this matter in which it had no real interest. It prayed for costs on a higher scale.

The applicants contend that it was made clear in the applicants' papers that no order was being sought against the fourth respondent. It had been cited as an interested party. The fourth respondent had, in the past, demanded that it be made part of the 2015 wage negotiation process. It had been cited out of an abundance of caution.

It is trite that a party who has a direct or substantial interest in the result of any litigation and whose interest might be prejudicially affected thereby must be afforded the opportunity to be joined as a party: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd and Others HH108-06; see also Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Ors 2003 (2) ZLR 437 (H)…,.

In casu, the issue is whether or not the fourth respondent had a direct and substantial interest in the subject matter of the action, i.e. legal interest in the subject matter of the litigation which might be affected prejudicially by the judgment of the court.

The only reference to the fourth respondent in the applicants founding papers is in paragraphs 10, 18 and 19.

In paragraph 10, the fourth respondent is identified. In paragraphs 18 and 19, the fourth respondent is mentioned, in passing, as a rival union to the first respondent and that the unions have clashed over the membership of the applicants' employees.

A perusal of the Provisional Order will reflect that no relief is being sought by the respondent.

There is no averment in the applicants, as submitted, papers, that no order is being sought against the fourth respondent and that it had been cited as an interested party.

It is clear from the above that the fourth respondent has no direct and substantial legal interest in the subject matter of the judgement that this court might make. The applicants can carry into effect the judgment without adversely affecting the position of the fourth respondent.

This is a typical case of misjoinder where a party who is not necessary is joined to proceedings.

The applicants cannot escape an order to indemnify the fourth respondent for the expenses to which he has been put through having to defend this application. This could have been avoided by averring in the founding papers that no relief was being sought against the fourth respondent and has been cited as an interested party. The fourth respondent would not have filed papers in opposition.

The point in limine is upheld and the applicants are to pay the fourth respondent's costs.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents.

I will deal with the position of the fourth respondent first.

The fourth respondent contended that it does not have any interest in this matter and had been wrongly joined as a party. No relief is being claimed against it. It had been unnecessarily dragged to defend this matter in which it had no real interest. It prayed for costs on a higher scale.

The applicants contend that it was made clear in the applicants' papers that no order was being sought against the fourth respondent. It had been cited as an interested party. The fourth respondent had, in the past, demanded that it be made part of the 2015 wage negotiation process. It had been cited out of an abundance of caution.

It is trite that a party who has a direct or substantial interest in the result of any litigation and whose interest might be prejudicially affected thereby must be afforded the opportunity to be joined as a party: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd and Others HH108-06; see also Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Ors 2003 (2) ZLR 437 (H)…,.

In casu, the issue is whether or not the fourth respondent had a direct and substantial interest in the subject matter of the action, i.e. legal interest in the subject matter of the litigation which might be affected prejudicially by the judgment of the court.

The only reference to the fourth respondent in the applicants founding papers is in paragraphs 10, 18 and 19.

In paragraph 10, the fourth respondent is identified. In paragraphs 18 and 19, the fourth respondent is mentioned, in passing, as a rival union to the first respondent and that the unions have clashed over the membership of the applicants' employees.

A perusal of the Provisional Order will reflect that no relief is being sought by the respondent.

There is no averment in the applicants, as submitted, papers, that no order is being sought against the fourth respondent and that it had been cited as an interested party.

It is clear from the above that the fourth respondent has no direct and substantial legal interest in the subject matter of the judgement that this court might make. The applicants can carry into effect the judgment without adversely affecting the position of the fourth respondent.

This is a typical case of misjoinder where a party who is not necessary is joined to proceedings.

The applicants cannot escape an order to indemnify the fourth respondent for the expenses to which he has been put through having to defend this application. This could have been avoided by averring in the founding papers that no relief was being sought against the fourth respondent and has been cited as an interested party. The fourth respondent would not have filed papers in opposition.

The point in limine is upheld and the applicants are to pay the fourth respondent's costs.

Costs re: Wasted Costs

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents.

I will deal with the position of the fourth respondent first.

The fourth respondent contended that it does not have any interest in this matter and had been wrongly joined as a party. No relief is being claimed against it. It had been unnecessarily dragged to defend this matter in which it had no real interest. It prayed for costs on a higher scale.

The applicants contend that it was made clear in the applicants' papers that no order was being sought against the fourth respondent. It had been cited as an interested party. The fourth respondent had, in the past, demanded that it be made part of the 2015 wage negotiation process. It had been cited out of an abundance of caution.

It is trite that a party who has a direct or substantial interest in the result of any litigation and whose interest might be prejudicially affected thereby must be afforded the opportunity to be joined as a party: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd and Others HH108-06; see also Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Ors 2003 (2) ZLR 437 (H)…,.

In casu, the issue is whether or not the fourth respondent had a direct and substantial interest in the subject matter of the action, i.e. legal interest in the subject matter of the litigation which might be affected prejudicially by the judgment of the court.

The only reference to the fourth respondent in the applicants founding papers is in paragraphs 10, 18 and 19.

In paragraph 10, the fourth respondent is identified. In paragraphs 18 and 19, the fourth respondent is mentioned, in passing, as a rival union to the first respondent and that the unions have clashed over the membership of the applicants' employees.

A perusal of the Provisional Order will reflect that no relief is being sought by the respondent.

There is no averment in the applicants, as submitted, papers, that no order is being sought against the fourth respondent and that it had been cited as an interested party.

It is clear from the above that the fourth respondent has no direct and substantial legal interest in the subject matter of the judgement that this court might make. The applicants can carry into effect the judgment without adversely affecting the position of the fourth respondent.

This is a typical case of misjoinder where a party who is not necessary is joined to proceedings.

The applicants cannot escape an order to indemnify the fourth respondent for the expenses to which he has been put through having to defend this application. This could have been avoided by averring in the founding papers that no relief was being sought against the fourth respondent and has been cited as an interested party. The fourth respondent would not have filed papers in opposition.

The point in limine is upheld and the applicants are to pay the fourth respondent's costs.

Interim Interdict or Final Order re: Mandamus or Mandatory Interdict and the Seeking or Granting of Final Interdicts

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”...,.

Counsel for the first respondent..., submitted that Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief....,.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Urgency re: Forum Shopping, Contemptuous, Mala Fide, Ill-Advised, Frivolous and Abuse of Court Process Proceedings

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?...,.

Counsel for the applicants confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

Jurisdiction re: Domestic, Internal or Local Remedies

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies....,.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court....,.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu, to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act....,.

(1)...,.

(2) The application is dismissed.

Jurisdiction re: Domestic, Internal or Local Procedures

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies....,.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court....,.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu, to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act....,.

(1)...,.

(2) The application is dismissed.

Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation

Counsel for the applicants made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority....,.

Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu (the Minister of Public Service, Labour and Social Welfare), to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

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

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

Jurisdiction re: Judicial Deference iro Specialised Courts and Tribunals

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

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

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

Rules of Construction or Interpretation re: Constitutional Provisions

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

Rules of Construction or Interpretation re: Severability of Statutory Provisions and the In Pari Materia Principle

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

Jurisdiction re: Labour Proceedings

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

The parties are agreed that the dispute between them, viz the threat to go on a collective job action, a labour dispute, can be dealt with in terms of the Labour Act by the Labour Court.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu, to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and adandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result, I will make the following order;

(1) The fourth respondent.

(2) The application is dismissed.

(3) The applicants to pay the costs of the first respondent and the fourth respondent.

Cause of Action and Framing of Draft Orders re: Doctrine Against Benefitting from One's Own Wrongdoing

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies....,.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court....,.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu, to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act....,.

(1)...,.

(2) The application is dismissed.

Jurisdiction re: Monetary, Cause of Action and Domestic Territorial Jurisdiction

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

The parties are agreed that the dispute between them, viz the threat to go on a collective job action, a labour dispute, can be dealt with in terms of the Labour Act by the Labour Court.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu (the Minister of Public Service, Labour and Social Welfare), to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result, I will make the following order;

(1) The fourth respondent.

(2) The application is dismissed.

(3) The applicants to pay the costs of the first respondent and the fourth respondent.

Collective Job Action or Labour Strike, Disputes of Interest and Right or Negotiable and Non-Negotiable Disputes

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

The parties are agreed that the dispute between them, viz the threat to go on a collective job action, a labour dispute, can be dealt with in terms of the Labour Act by the Labour Court.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu (the Minister of Public Service, Labour and Social Welfare), to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result, I will make the following order;

(1) The fourth respondent.

(2) The application is dismissed.

(3) The applicants to pay the costs of the first respondent and the fourth respondent.

Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

The parties are agreed that the dispute between them, viz the threat to go on a collective job action, a labour dispute, can be dealt with in terms of the Labour Act by the Labour Court.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu (the Minister of Public Service, Labour and Social Welfare), to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result, I will make the following order;

(1) The fourth respondent.

(2) The application is dismissed.

(3) The applicants to pay the costs of the first respondent and the fourth respondent.

Interim Interdict Pendente Lite and Stay of Execution re: Labour Proceedings

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

The parties are agreed that the dispute between them, viz the threat to go on a collective job action, a labour dispute, can be dealt with in terms of the Labour Act by the Labour Court.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu (the Minister of Public Service, Labour and Social Welfare), to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result, I will make the following order;

(1) The fourth respondent.

(2) The application is dismissed.

(3) The applicants to pay the costs of the first respondent and the fourth respondent.

Pleadings re: Forum Shopping or Double-Dipping

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?...,.

Counsel for the applicants confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

Law Portal
Zimbabwe

HH74-16 - TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS

Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

Citation and Joinder re: Approach iro Third Party Notices ito Nominal Party and Financial Interest Party

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

Costs re: Wasted Costs

Interim Interdict or Final Order re: Mandamus or Mandatory Interdict and the Seeking or Granting of Final Interdicts

Urgency re: Forum Shopping, Contemptuous, Mala Fide, Ill-Advised, Frivolous and Abuse of Court Process Proceedings

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Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation

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Rules of Construction or Interpretation re: Constitutional Provisions

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Cause of Action and Framing of Draft Orders re: Doctrine Against Benefitting from One's Own Wrongdoing

Jurisdiction re: Monetary, Cause of Action and Domestic Territorial Jurisdiction

Collective Job Action or Labour Strike, Disputes of Interest and Right or Negotiable and Non-Negotiable Disputes

Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

Interim Interdict Pendente Lite and Stay of Execution re: Labour Proceedings

Pleadings re: Forum Shopping or Double-Dipping

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HH74-16 - TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS

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