Mwananuka v Armaguard Security Ltd (CAZ Appeal 201 of 2021) [2022] ZMCA 57 (24 August 2022)

IN THE COURT OF APPEAL FOR ZAMBIA CAZ APPEAL NO. 201/2021 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CAZ/08/313/2020 MUBITA MWANANUKA APPELLANT AND REGISTRY 1 1^500675 ARMAGUARD SECURITY LTD RESPONDENT CORAM: KONDOLO SC, NGULUBE, BANDA-BOBO, JJA On 15th June, 2022 and on 3rd and 24th August, 2022 For the Appellant : Ms. M. K. Liswaniso, Legal Aid Counsel- Legal Aid Board For the Respondent : Mr. V. Kayawe - In-house-Counsel JUDGMENT POSTEA 24th August, 2022 On 3rd August, 2022 we delivered the above Judgment in which we omitted to consider important decisions by the Constitutional Court and Supreme Court thus falling foul of stare decisis and rendering our Judgment per incuriam. Our Judgment was to the effect that all employment related cases must be commenced in the High Court - Industrial Relations Division and not in the General List. The effect of the Judgment has been understood as divesting the General list of jurisdiction to receive and determine labour related claims. It has since been drawn to our attention that the Judgment has created challenges in the filing of employment related claims in the High Court. The Judgment in which we overlooked an important jurisdictional issue was delivered during the course of this month and requires immediate remedial action, hence this posted. We have as quickly as possible considered the relevant precedents including the case of Zambia National Commercial Bank Plc v Martin Musonda & 58 Others (2017/CCZ/R004) Selected Judgment No. 24 of 2018 in which the Constitutional Court held as follows; “In its literal interpretation, Article 133 (2) of the Constitution as amended, merely makes the Industrial Relations Court a division of the High Court and has not affected wholesale, the provisions of the Industrial and Labour Relations Act and its Rules to the extent that they do not conflict with any provision of the Constitution as amended. Until new legislation is enacted to provide for the processes and procedures and Jurisdiction of the Industrial Relations Court Division pursuant to Article 120 (3) (a) and (b) of the Constitution as amended, the Court continues to use the existing processes and procedures and enjoys the same jurisdiction. ” In short, even though the Industrial Relations Court became a division of the High Court by operation of law, it maintains its distinct character established by the Industrial Relations Act. The practice and procedure in the High Court Industrial Relations Division is therefore regulated by the Industrial Relations Rules and not the High Court Rules and will continue to do so until new legislation is enacted for the purpose. The effect of this is that, those employment related matters, that were previously filed in the High Court, before the divisions were created, can be competently filed on the general list as was done by the Appellant herein. The appeal therefore succeeds and we accordingly set aside our earlier order granting the Respondent liberty to rc-commcnce the matter in the High Court Industrial Relations Division. The matter is hereby remitted to the High Court- General List before another Judge. Each party shall bear its own costs. M. M. KONDOLO, SC COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE .......... .............................. A. M. BANDA-BOBO COURT OF APPEAL JUDGE