ECONET WIRELESS (PVT) LTD v MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE & ORS

SUPREME COURT, HARARE

[Civil Appeal SC 31-16]

January 15 and June 23, 2016

ZIYAMBI, GARWE AND BHUNU JJA

Constitutional law  – “Dirty hands doctrine”  – Applicability of the doctrine  – Whether application of the doctrine is a violation of the right of access to the courts under section 69 of the Constitution of Zimbabwe, 2013.

The appellant company, being engaged in the cellular communication industry, fell under the National Employment Council for the Communications and Allied Services Sector (“the NEC”). A collective bargaining agreement binding in the industry was published as Collective Bargaining Agreement for the Communications and Allied Services Industry (SI 1 of 2012). In terms of s 82 (1) of the Labour Act [Chapter 28:01], the Statutory Instrument was binding on the appellant. The Statutory Instrument required the appellant, as an employer in the industry, to register with the NEC within one month of its coming into effect. The appellant refused to register. It also refused to pay its dues to the NEC on the basis that the Statutory Instrument was invalid. However, it approached the High Court seeking the setting aside of the Statutory Instrument. The High Court refused to hear the appellant on the basis of the “dirty hands doctrine”. The appellant appealed to the Supreme Court, arguing that the “dirty hands doctrine” infringed its right of access to the courts under s 69 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”).

The appeal was dismissed.

Held, that the “dirty hands doctrine” is not an infringement of the right of access to the courts protected by s 69 of the Constitution. On the contrary, it is consistent with the “rule of law” as the latter connotes obedience and submission to the dictates of the prevailing laws of the land.

Cases cited:

Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information & Publicity & Ors 2004 (1) ZLR 538 (S), referred to

Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736; [1956] 1 All ER 855 (HL), applied

Legislation considered:

Administrative Justice Act [Chapter 10:28], s 3

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 69, 69 (3), 71

Labour Act [Chapter 28:01], ss 61, 61 (5), 82 (1)(a)

Collective Bargaining Agreement for the Communications and Allied Services Industry (SI 1 of 2012), ss 33, 34, 35, 36, 36 (1)

General Notice 106 of 2010

Book cited:

Black HC Handbook on the Construction and Interpretation of the Laws (2nd edn, West Publishing Co, St Paul, Minnesota, 1911) p 110, para 41

L Uriri, for the appellant

T Mpofu, for the respondents

BHUNU JA:

The cardinal issue for determination in this case is the appellant’s right to be heard vis-a-vis its obligation to obey the law before being heard. In legal parlance the issue has to do with the application of the age old “dirty hands doctrine” as determined through the cases and amplified by this Court in the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information & Publicity & Ors 2004 (1) ZLR 538 (S).

The factual and legal basis upon which the appeal is founded is this: The appellant is engaged in the cellular communication industry. The Labour Act [Chapter 28:01] provides for a system of Collective Bargaining Agreements regulating the employment relationships of employers and employees in their respective industries. To that end, s 82 (1)(a) of the Act provides that:

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