BILTRANS SERVICES (PVT) LTD v MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE & ORS

CONSTITUTIONAL COURT, HARARE

[Constitutional Application CCZ 16-16]

May 18, 2016

MALABA DCJ, ZIYAMBI, GWAUNZA, GARWE,
GOWORA, HLATSHWAYO, PATEL, GUVAVA AND UCHENA JJCC

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 56 – Equal protection of the law – Labour Act [Chapter 28:01] – Section 92E (2) – Provision that an appeal to the Labour Court does not suspend decision appealed against – Whether such provision violates right to equal protection of the law.

Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 56 – Equal protection of the law – Labour Act – Section 98 (14) – Provision for the administrative registration of an arbitral award in labour matters – Whether such provision violates right to equal protection of the law.

The applicant challenged the constitutionality of ss 92E (2) and 98 (14) of the Labour Act [Chapter 28:01]. Section 92E (2) provides that an appeal to the Labour Court shall not have the effect of suspending the decision appealed against. Section 98 (14) provides for the registration of an arbitral award by the High Court and Magistrates Court. In respect of s 92E (2), the applicant argued that it violated the right to equal protection of the law in that it favoured the winning party while depriving the party appealing of the right to equal protection. The argument in respect of s 98 (14) was that in not providing the registering court the power to examine the award on the merits before registration, the provision deprived the party against whom the award is made of the equal protection of the law.

Held, that s 92E (2) of the Labour Act is not a violation of the right to equal protection because it protects both parties. While the winning party may execute regardless of an appeal, the losing party has an equal right to apply for stay of execution pending appeal.

Held, further, that s 98 (14) of the Labour Act is not a violation of the right to equal protection because while the registering court may not go into the merits of the award, it remains with the judicial duty to be satisfied before registering that all the necessary formalities have been complied with.

Cases cited:

Hibbs v Winn 542 US 88 (2004); 124 SCt 2276; 159 L Ed 2d 172,
referred to

Olympio & Ors v Shomet Industrial Development HH 191-12 (unreported), applied

Standard Chartered Bank Zimbabwe Ltd v Musanhu 2005 (1) ZLR 43 (S), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 56 (1), 65 (1), 85 (1), 162, Chapter IV

Labour Act [Chapter 28:01], ss 92E (2), (3), 92F (1), 97 (4), 98 (10), (14)

Labour Amendment Act, 2005 (No 7 of 2005), s 34

T Mpofu, for the applicant

M Chimombe, for the first respondent

R Dembure, for the second to sixth respondents

No appearance for the seventh respondent

MALABA DCJ:

At the end of hearing argument for both parties the court dismissed the application with no order as to costs. It was indicated at the time that reasons for the decision would follow in due course. These are they:

The applicant approached the court in terms of s 85 (1) of the Constitution of Zimbabwe, 2013 (“the Constitution”), which provides that any person who alleges that any of the fundamental rights enshrined in Chapter IV has been infringed, may approach a court seeking an appropriate relief which a court has discretion to grant. The applicant sought an order declaring invalid ss 92E (2) and 98 (14) of the Labour Act [Chapter 28:01] (“the Act”) on the basis that the provisions infringe the fundamental right to equal protection of the law enshrined in s 56 (1) of the Constitution. The applicant also took as an additional point that s 98 (14) of the Act infringes the right to fair labour practices enshrined in s 65 (1) of the Constitution.

The second to the sixth respondents were employees of the applicant until they were dismissed for misconduct. They were aggrieved by the dismissal and raised a complaint of unfair labour practice with a labour officer, claiming overtime and several other allowances that they alleged the applicant owed them. When conciliation failed to yield a settlement, the dispute was referred to compulsory arbitration. The arbitrator found in favour of the second to the sixth respondents.

The applicant filed an appeal with the Labour Court, but failed to file heads of argument, leading to the second to the sixth respondents successfully applying to the Labour Court for dismissal of the appeal for want of prosecution. The second to sixth respondents then applied to the arbitrator for quantification of the award. They were awarded US$ 99 882.60. They then applied to the High Court to have the arbitral award registered as an order of the High Court. The High Court granted the application for registration.

The applicant noted an appeal to the Labour Court against the quantification. In the meantime, the second to sixth respondents armed with a writ of execution proceeded to attach the applicant’s property. The applicant immediately filed an application for stay of execution of the writ with the High Court. The application was dismissed. This application was then made.

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