Section 13 of the High Court Act (Chapter 7:06) provides that “Subject to this Act and any other law, the High Court shall have full original jurisdiction over all persons and over all matters within Zimbabwe.”
Does this jurisdiction extend to labour matters? Section 89 (6) of the Labour Act provides that “No Court other than the Labour Court shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).” Is this not a contradiction?
This article seeks to spark public debate on a subject which has vexed law students, judges and labour practitioners alike.
On March 7 2003, the Labour Court was established to replace the Labour Relations Tribunal.
Section 89 of the Labour Act (Chapter 28:01) spells out the functions, powers and jurisdiction of the Labour Court and gives it the “same powers of review as would be exercisable by the High Court in respect of labour matters”.
Prior to March 2003, the High Court enjoyed unrestricted original and review jurisdiction in all labour disputes.
The creation of the Labour Court as the court of first instance in labour matters had the effect of limiting the jurisdiction of all other courts, including the High Court, in labour disputes.
However, Section 89 of the Labour Act confines the jurisdiction of the Labour Court only to matters enumerated under subsections (1) and (6) leaving room for the High Court to hear and determine every other labour matter not specified under those subsections.
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Section 89 of the Labour Act has therefore not taken away the inherent power of the High Court to deal with labour matters.
Judges have been variously and sometimes controversially interpreting Section 89 of the Labour Act on labour matters placed before them.
In Zikiti v United Bottlers Justice Gillespie was of the view that “the courts of law are open to all, and it should only be in exceptional circumstances that the doors will be closed upon a litigant”.
University of Zimbabwe law professor Lovemore Madhuku believes that this view is wrong as it runs contrary to the main purpose of the dispute settlement process in the Labour Act, which is to provide a labour sensitive framework.
If disputing parties are allowed to take their matters to the High Court, such a purpose would be defeated.
Madhuku views the High Court as a threat to the labour dispute resolution system in Zimbabwe.
In Thomas Tuso v City of Harare (HH 1/2004), Justice Bhunu held that Section 89 of the Labour Act ousted the jurisdiction at first instance of all other courts (including the High Court) in respect of all labour matters.
Respectfully, the learned judge misdirected himself in his interpretation of that section whose wording clearly shows that the jurisdiction of all other courts remains in respect to all those matters outside the purview of Section 89 of the Labour Act.
The correct position was enunciated by Justice Makarau in the case of Martin Sibanda and Godfrey Moyo v Benson Chinemhute NO and Martindale Trading (Pvt) Limited (HH 131/04).
In this case, appellants sought a declaratory order from the High Court declaring their dismissal from Martindale Trading null and void.
Justice Makarau looked extensively at the jurisdiction of both the High Court and the Labour Court and decided that there are certain instances where the Labour Court does not enjoy exclusive jurisdiction.
For example, the Labour Court has no powers to issue a declaratory order and that can only be done by the High Court.
In Hamilton Fortunate Gomba v Associated Mining Workers’ Union (HH 118/05) Justice Patel adopted Justice Makarau’s approach that the exclusive jurisdiction of the Labour Court remains explicitly confined to the matters enumerated in Section 89 of the Labour Act.
In this case, the appellant sought an interdict from the High Court to restrain the respondent from withholding his salary and benefits on the grounds that his employment had been unlawfully terminated.
Justice Patel was of the view that this was an instance where the High Court should exercise its inherent powers “even in the sphere of labour relations”. He observed: “The original jurisdiction of the High Court is expressly excluded in relation to the matters spelt out in Section 89 (1) of the Labour Act.
However, it is not ousted and stands intact in relation to every other matter.
Accordingly, the High Court remains vested with full and unimpeded jurisdiction to hear and determine every labour matter, other than one specifically referred to in sub-sections (1) and (6) of Section 89 of the Labour Act.
There are a number of other cases where the High Court has exercised similar jurisdiction in labour matters.
These include the cases of Mushoriwa v Zimbank (HH 23/2008), Olinda Chawora v Reserve Bank of Zimbabwe (HH 59/2006) and Samanyau and Others v Fleximail (HH 108/11).
In all these cases, the applicants sought declaratory orders of one form or another from the High Court.
A declaratory order does not address the merits of a case, but may merely state the court’s opinion on a question of law or declare the rights of the parties in a dispute.
In the Samanyau case, the applicants challenged their dismissal in the Labour Court which decided in their favour and ordered their reinstatement or alternatively payment of damages in lieu of reinstatement.
Fleximail opted to pay damages and in February 2009 after the introduction of multi-currencies, the company offered payment in Zimbabwean dollars.
The applicants rejected the offer and successfully sought an order from the High Court for payment in foreign currency. Fleximail argued that the matter was res judicata (that the High Court had no jurisdiction, as this was a labour matter).
Justice Andrew Mutema rejected this argument and held that the High Court’s jurisdiction had not been ousted by Section 89 (6) of the Labour Act; the High Court was still entitled to issue declaratory orders which the Labour Court was not empowered to issue.
As can be seen from the above cases, the role of the High Court in labour matters remains mired in confusion and controversy.
This has led in many instances to parallel court processes as litigants are not sure which forum to approach for remedies — the Labour Court or the High Court.
Why is the Legislature unwilling to give the Labour Court absolute exclusivity in dealing with labour disputes? Was this not the motivation behind the creation of a special court to deal specifically with all labour disputes?
Isaac Mazanhi is a labour analyst. He writes in his personal capacity. He can be contacted on e-mail: [email protected]
