Shangiwa and 5 Others v Ndimbarimba N.O and 2 Others (679 of 2022) [2022] ZWHHC 679 (5 October 2022)

1 HH 679-22 HC 3364/22 BENEDICT SHANGIWA And MARGARETH KWANGWARI And ROSEMARY MANYERE And JOSEPHINE CHINYAKATA And MONICA MATIENGA And MUKUDZEI MUVENGWI Versus LIONA NDIMBARIMBA N. O And THE NATIONAL EMPLOYMENT COUNCIL FOR THE AIR TRANSPORT INDISTRY And CIVIL AVIATION AUTHORITY OF ZIMBABWE HIGH COURT OF ZIMBABWE HARARE 23 March & 5 October 2022 CHILIMBE J R. T. Mutero -for applicants B. Mupwanyiwa-for first and second respondents No appearance for third respondents Opposed application CHILIMBE J BACKGROUND [ 1] Applicants seek a declaratur and consequential relief in the following effective terms; - 2. “It is declared that the 1st Respondent is required by s 93 (5a) of the Labour Act [ Chapter 28:01] to apply for the confirmation of the draft ruling she made on 7th February 2019. 3. Consequently, the 1st Respondent be and is hereby ordered to do all things necessary in order that she applies for confirmation of the draft ruling she made in a matter between the Applicants and the 3rd Respondent and dated 7 February 2019 in accordance with s 93 (5a) of the Labour Act [ Chapter 28”01] the first action of which must be done within 7 days of the date of this order.” HH 679-22 HC 3364/22 [ 2] The six (6) applicants are former employees of third respondent. Their contracts of employment were terminated on 20 December 201, purportedly under the retrenchment framework provided for in the Labour Act [ Chapter 28:01] (“the Act”). The applicants were aggrieved by the termination. Their believed that the retrenchment procedure adopted by third respondent had been “procedurally and substantively unfair”. Their matter was referred, as a dispute, to first respondent for resolution in terms of with s 93 (5a) of the Act, read with s 63. First respondent was a designated agent appointed under s 63 of the Act to assist in the resolution of industry sector disputes, among her other functions. [ 3] The outcome of the proceedings before first respondent are the cause of the dispute now before the court. According to applicants, third respondent attempted to redress the dispute and having failed to do so, issued a draft ruling. Third respondent insists that she issued a final ruling. This divergence in the interpretation of first respondent`s ruling informs the parties` respective positions before the court in this dispute. Applicants contend (and seek an order to the effect that) first respondent must proceed in terms of s 93 (5a) of the Act and refer the matter to the Labour Court for confirmation. First respondent disagrees. Her position is that having issued a final ruling, she “redressed” the dispute conclusively. There was nothing for her to refer to the Labour Court. The requirement set out in s 93 (5a) of the Act for a labour officer (mutatis mutandis designated officer) to as refer his or her ruling to the Labour Court was inapplicable. It is on account of the first respondent`s recalcitrance that applicants approached this court seeking a declaratur and mandamus to compel first respondent to oblige. REQUIREMENTS OF A DECLARATUR AND MANDAMUS [4] A process to establish whether the said conditions of a declaratur and mandamus have been satisfied, necessarily entails (a) the interpretation of various provisions of the Labour Act, (b) an analysis of the proceedings before first respondent as a quasi-judicial body, including the correctness and import of her decision and (c) a pronouncement of the parties` respective rights and remedies as deriving from the Labour Act. Having considered these matters, I directed the parties` respective counsel, before hearing arguments, to submit supplementary heads of argument focused on the requirements of a declaratur and mandamus. Inadequate attention had been paid, in my view, to these aspects in the heads of argument previously filed. Dealing with the essentials of a declaratur and mandamus, would naturally scope in the issue of jurisdiction of this court in deciding a dispute emanating from the labour realm. HH 679-22 HC 3364/22 [ 5] Applicants insisted that the requirements of a both a declaratur and mandamus had been fully met1. Regarding the declaratur, applicants submitted that an existing right had been created by first respondent`s ruling. That ruling entitled applicants to have their matter placed before the Labour Court in terms of s 93 (5a) of the Act. Concomitantly, first respondent was enjoined to take the necessary steps, as a quasi-judicial body, to lodge her draft ruling before the Labour Court in terms of the same section. It was also argued on behalf of applicants that they had no other remedy apart from seeking a declaratory order from this court. Likewise, the requirements for a mandamus2 were largely congruent with those of a declaratory order and same had been satisfied. THE JURISDICTION QUESTION. [ 6] Inevitably, the question of the High Court`s jurisdiction in labour matters arises whenever such matters are brought before this court. Invariably, arguments brought forth are that what is being sought before the High Court are declaratory orders or interdicts, being relief non- available from the Labour Court. That the High Court exercises curtailed jurisdiction and defers to the Labour Court`s exclusive jurisdiction in labour matters must now be a familiar matter to litigants and legal practitioners alike. Both the Supreme Court and Constitutional Court have spoken decidedly on the position. [ 7] I note that in Nhari v Mugabe & Ors SC 161/20; Chingombe & Anor v City of Harare & Ors SC 177/20 as well as Muchenje v Mutangadura & 4 Ors HH 21-21, the court analysed whether the applicants/appellants` had fulfilled the requirements of a declaratur. That inquiry exposed that the underlying relief sought was that of reinstatement of the contract of employment under the guise of a declaratur. Is the situation any different in the matter before the court? I think not. [ 7] Firstly,it is not in dispute that first respondent ruled that the proceedings at third respondent resulting in termination of applicants` contracts of employment were procedurally and substantively fair. In reaching that conclusion, first respondent effectively ruled against applicants` complaint that that their contracts of employment had been terminated via a process that was procedurally and substantively unfair. The relief sought presently is therefore an 1 As defined in Johnsen v AFC 1994 (4) 95 and Constable Sibanda v The Trial Officer (Chief Superintendent Masuku C) & 2 Ors HB 128-18. 2 Tribac Tobacco Limited v Tobacco Marketing Board 1996 (2) ZLR 52 (S). HH 679-22 HC 3364/22 interim step toward the ultimate intent to reverse first and third respondents` decisions to terminate applicants` contracts of employment. [ 8] Secondly, as stated, the rights upon which the declaratory order is premised derive from an interpretation, of the Labour Act as well as proceedings before first respondent. In addition, the applicants claim that they are bereft of any other effectual remedy apart from seeking the relief prayed for. An examination of this grounds will entail similar inquiries. Even if this court were to issue the declaratur prayed for, its implementation will take effect back in the auspices of the Labour Court. The inescapable conclusion is that the subject matter of the dispute that has been brought before the court falls within the purview of the Labour Court. In TN Harlequin Luxaire Limited v Mberikunashe Matsvimbo & 14 Ors SCB 84-22 the Supreme Court not only reiterated that the jurisdictional limits of the High Court in labour matters, it went further to elaborate the reasons for such jurisdictional circumscription. [ 9] The court noted that the Constitution had recognised the need for specialised courts. It devolved the authority to create and prescribe the jurisdiction of such courts to Parliament. This structure featuring various adjudication forums was meant to enhance the capacity of those tribunals to resolve matters and disputes with greater efficiency through specialisation. HLATSWAYO JA (as he was then) held as follows at [22] to [24]; - [22] Happily, the vexed controversy over the exclusive jurisdiction of the Labour Court on all labour matters versus the High Court’s unlimited, original jurisdiction on all matters which had led to “an unhappy state of law” has been put to rest in Nhari v Mugabe, supra, as follows: “[30] The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law and the exercise of such jurisdiction was left entirely to Acts of Parliament. In other words, it is the Constitution itself which has permitted the establishment of these specialised courts and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament. Section 172 of the Constitution which establishes the Labour Court is not made subject to s 171 which creates the High Court. The two sections are in pari materia and must therefore be construed together. In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to s 171 which creates and provides for the jurisdiction of the High Court.” HH 679-22 HC 3364/22 The learned Appeal Judge then goes on the give examples of specialised courts such as military tribunals, tax courts and customary law courts and concludes that not only would it be absurd to extend the jurisdiction of the High Court to all such specialised courts, but it would get the High Court “bogged down in matters over which it may have very little expertise or petty matters that should ordinarily not detain the court”. [23] The Stanley Nhari v Mugabe & Ors (supra) was followed recently by Cainos Chingombe & Anor v City of Harare & Ors. (supra) where following their suspension from employment, the appellants unsuccessfully sought a declaration at the High Court that such suspension was unlawful and consequential relief. The Supreme Court held that “the High Court had no jurisdiction to issue a declaratur in respect of issues of labour and employment” and that “Section 2A of the Labour Act makes it clear that notwithstanding the powers of the High Court to issue declaraturs, the Labour Act prevails over all other laws inconsistent with it”. [24] Accordingly, it this Court’s conclusion that the High Court erred in assuming jurisdiction in a purely labour matter. It should have declined jurisdiction. [ underlined for emphasis] DISPOSITION [ 10] I am guided by the Supreme Court`s directions in the foregoing dictum. What is before me is a purely labour matter. As such, the resolution of what the applicants have lamented as a lacuna facing them falls to be addressed by the Labour Court. Again, this conclusion that applicants enjoy no other remedy must be considered against (a) the proceedings and ruling of first respondent, given existence of certain documentary inconsistencies apparent on the face of the record and admitted (and explained away as a mere matter of form over substance), by first respondent herself before this court3. (b) The Labour Court ruling in case number LC/H/REV/16/19, (b) the applicants` interpretation of the guidance in Drum City (Pvt) Ltd v Brenda Garudzo SC 57-18 and Isoquant Investments (Pvt) Ltd v Memory Darikwa CCZ 6-20 on the point. In respect of (b); - the Labour Court judgment, it is noted that an application for the review by the Labour Court, of proceedings before first respondent was removed from the roll by consent of the parties on the date of hearing. That removal was actuated by applicants` own concessions that their review application carried fatal irregularities. 3 The matter was first brought before one Reginald Chirindeguta who issued a certificate of no settlement on 12 June 2018. In unclear circumstances, the matter was then completed by first respondent who issued a comprehensive ruling under cover of a certificate “Draft Determination /Ruling in terms of section 93 (5c)” on 7 February 2019. HH 679-22 HC 3364/22 [ 11] A number of implications flow from the manner in which applicants` attempt to refer their matter to the Labour Court was concluded. Principal among them being (a) whether the matter was determined substantively on the merits in the Labour Court and (b) whether the conclusion that applicants have no other remedy (the lacuna) apart from issuance of a declaratur are actually accurate. But those are not matters for this court to resolve. For foregoing reasons, I find that the application before me falls within the exclusive purview of the Labour Court. I must, on that account, decline jurisdiction. COSTS [ 12] Purely for the purposes of deciding the issue of costs and nothing more, I cannot avoid making an observation on the ruling issued by first respondent. From the papers before me, it is clear that much of the heartache characterising this matter is traceable to anomalies manifest in first respondent`s ruling. It needlessly vacillated between a draft and final order. Applicants were moved to then take various steps, including mounting this present application, in a bid to address the effects of such anomaly. For that reason, and the background of this as a labour dispute, I am inclined to let the load lie where it is carried. Accordingly, it is ordered that; - The application be and is hereby dismissed with each party bearing its own costs. Caleb Mucheche & Partners Law Chambers -applicants` legal practitioners Mufadza & Associates-first and second respondent`s legal practitioners