KUCHENA v SCIENTIFIC & INDUSTRIAL RESEARCH & DEVELOPMENT CENTRE

HIGH COURT, HARARE

[Urgent Chamber Application HH 180-16]

February 8 and March 9, 2016

CHIGUMBA J

Constitutional law  –  Constitution of Zimbabwe, 2013  –  Jurisdiction of the High Court  –  Section 171  – Jurisdiction over “all civil and criminal matters”  –  Meaning of  –  Whether the High Court always has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance.

Employment  –  Labour Court  – Whether section 89 (6) of Labour Act [Chapter 28:01] is inconsistent with section 171 of the Constitution of Zimbabwe, 2013.

Section 171 (1)(a) of the Constitution gives the High Court concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance. Section 89 (6) of the Labour Act [Chapter 28:01] is inconsistent with s 171 (1)(a) of the Constitution to the extent to which it seeks to oust the jurisdiction of the High Court in purely labour matters at first instance.

Cases cited:

Boadi v Boadi & Anor 1992 (2) ZLR 22 (H), referred to

Capri (Pvt) Ltd v Maponga HH 92-15 (unreported), referred to

Chiokoyo v Ndlovu & Ors 2014 (1) ZLR 473 (H), distinguished

Chiparaushe & Ors v Triangle Ltd & Anor HH 196-15 (unreported), referred to

Chitiki v Pan African Mining (Pvt) Ltd HH 656-15 (unreported), referred to

Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346 (H), referred to

CZI v Mbatha HH 125-15 (unreported), referred to

Cox v Hakes (1890) 15 App Cas 506, referred to

DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), referred to

Diepsloot Residents’ and Landowners’ Association and Another v Administrator, Transvaal 1994 (3) SA 336 (A), referred to

Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378 (G), referred to

Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H), applied

Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374 (S), referred to

Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H), referred to

Mafu & Ors v Solusi University HB 53-07 (unreported), referred to

Mazarire v Old Mutual Shared Services (Pvt) Ltd HH 187-14 (unreported), referred to

National Railways of Zimbabwe v Zimbabwe Railway Artisans’ Union & Ors 2005 (1) ZLR 341 (S), referred to

Setlogelo v Setlogelo 1914 AD 221, referred to

Silver’s Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H), referred to

Surface Investments (Pvt) Ltd v Chinyani 2014 (1) ZLR 658 (H), referred to

Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S), referred to

Williams v Kroutz Investments (Pvt) Ltd & Ors HB 25-06 (unreported), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 170, 171 (1)(a), 171 (2), 172 (2), 172 (3), Sixth Schedule para 10

Labour Act [Chapter 28:01], ss 89 (2)(c), 89 (2)(c)(i)-(iii), 89 (6), 90A, 93

Book cited:

Du Plessis LM Re-Interpretation of Statutes (1st edn, Butterworths, Durban, 1986)

K Gama, for the applicant

S Hwacha, for the respondent

CHIGUMBA J:

Paragraph 10 to the Sixth Schedule of the current Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”) (Savings and Transitional Provisions) provides that all existing laws will continue in force but must be construed in conformity with the Constitution. In my view, this means that any inconsistency between the Constitution and an existing law must be resolved in favour of conformity with the Constitution. This renders s 89 (6) of the Labour Act [Chapter 28:01] void to the extent of its inconsistency with s 171 (1)(a) of the Constitution. The inescapable conclusion is that the High Court now has concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance. It is up to the High Court to decline to exercise that concurrent jurisdiction as a way of preserving and respecting the specialised nature of the Labour Court until the Legislature harmonises s 89 (6) of the Labour Act with s 171 (1)(a) of the Constitution.

It is my view that as things currently stand the argument that the High Court has no jurisdiction to hear purely labour matters at first instance is not sustainable. It is my considered view that the High Court, being a creature of inherent jurisdiction, by implication can decline to exercise its jurisdiction in favor of a litigant for any reason that it deems fit, in the interests of justice. I see no reason why jurisdiction over purely labour matters at first instance, in some circumstances, cannot be declined on the basis that there is a specialised court which exercises concurrent jurisdiction and that is where the litigant ought to go. In cases where litigation has already been commenced initially before the Labour Court, it is undesirable for this Court to exercise jurisdiction over the same matter as this will promote forum shopping and will be detrimental to the administration of justice in the long run.

This is an urgent chamber application for a mandatory interdict, in which the following order is sought on an interim basis; that respondent be and is hereby ordered to furnish applicant with the following information within 48 hours of this order being granted:

1. A schedule detailing the applicant’s back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent’s salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which applicant shall resume his duties.

4. The date of payment of applicant’s back-pay and benefits.

5. The dates on and manner in which the applicant’s salaries shall be paid from the 1st of February 2016 until applicant ceases to be entitled to a salary.

The final order sought is for the respondent to show cause why a final order should not be made on the following terms; Respondent be and is hereby ordered:

1. To immediately furnish the applicant with all information regarding and relevant to the applicant’s employment contract and conditions of service when requested to do so.

2. To fully comply with the judgments of the Labour Court handed down on 6 February 2008 and 22 January 2016 within two weeks of this order being granted failing which the Director General (Chief Executive Officer) of respondent shall be committed to goal for a period of three months for contempt of court.

3. To pay costs of suit on a legal practitioner and client scale.

The applicant is the holder of a doctorate in Engineering Science and the respondent (SIRDC) is a university situated in Hatcliffe, Harare. The background to this application as set out in the founding affidavit is that the applicant was employed by the respondent from the year 2000 to 22 March 2005 as the director of the Building Technology Institute (BTI) of the respondent. The Labour Court made a finding on the 6th of February 2008 that the respondent’s dismissal of the applicant was unlawful. The respondent was ordered to reinstate the applicant with effect from 22 March 2005 the date of dismissal, without loss of salary or benefits. The applicant alleges that the respondent has failed to comply with this judgment by failing to reinstate him or to pay him his full salary or benefits, or even to pay him damages in lieu of reinstatement in the alternative. The applicant instituted proceedings in HC 4544-08 for an order of contempt to be made against the respondent’s Director General. The respondent, in response to that application, purported to “reinstate” the applicant by way of a letter dated 26 September 2008. The letter was delivered to the applicant on the 7th of October 2008.

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