The question whether a litigant who has approached the High Court with a labour related dispute is entitled to be heard by that court sitting as a court of first instance is one that has received both affirmative and negative responses from the High Court judges. Before the advent of the Constitution of Zimbabwe Amendment (No. 20) Act 2013[1] (herein after called “the Constitution”), a litigant was obliged to approach the Labour court as a court of first instance before approaching the High Court[2]. As an exception, a litigant could approach the High Court with a labour related claim if they were seeking common law remedies like rei vindicatio[3], interdict and declaratory orders. This is because the labour court, being a creature of statute, has no jurisdiction to grant such remedies[4]. Whether that position still holds is now open to debate in light of section 171 (1) (a) of the Constitution. The section clothes the High court with original jurisdiction to deal with all civil and criminal matters throughout Zimbabwe. Some Judges have construed the section to mean that the High Court now has concurrent jurisdiction with the Labour Court to deal with labour matters in the first instance. Others have held that the section does not confer such jurisdiction on the High Court. Their argument is that section 89 (6) of the Labour Act[5] ousts the High Court’s jurisdiction to deal with labour matters in the first instance. Below is an analysis of some relevant cases on the subject.
In Nyanzara v Mbada Diamonds (Pvt) Ltd[6], the court held that section 171 (1) (a) did not restore the jurisdiction of the High Court to deal with Labour matters in the first instance. The court opined that section 89 (6) of the Labour Act was passed by the legislature acting in terms of section 172 (2) and (3) of the Constitution. Subsection 2 says:
“the Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament”.
Subsection (3) says:
“ an Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court”.
Taking into account these provisions, the court found that there is no conflict between section 171 (1) (a) of the Constitution and section 89 (6) of the Labour Act. In the court’s view, section 171 (1) (a) should not be interpreted in a manner which allows the High Court to usurp the Labour Court jurisdiction as that would defeat the intention of the legislature in creating the Labour court as a specialised court to deal with labour matters. A purposive approach must therefore be adopted when interpreting section 171 (1) (a) of the Constitution. Thus, when a litigant approaches the High Court with a labour related dispute, the court should decline jurisdiction as a way of safeguarding the jurisdiction of the Labour Court as per section 89 (6).
It is interesting at this stage to note that the court went as far as holding that it is proper to decline jurisdiction even in cases where a litigant sues on the basis of a valid acknowledgment of debt. It matters not that a party may have acknowledged indebtedness, for as long as what is acknowledged as owing is a payment arising from an employment relationship. Whether that theory has a valid legal basis is again open to debate. We however reserve argument on this issue for another day.
In Kuchena v The Scientific and Industrial Research and Development centre[7] and in Chitiki v Pan African Mining (Pvt) Ltd[8], the court held that section 171 (1) (a) restored the High Court’s original jurisdiction to determine labour matters in the first instance. It further held and correctly so, in our view, that section 89 (6) is inconsistent with section 171 (1) (a) of the Constitution and is therefore void to the extent of such inconsistency. What needs to be done is to align section 89 (6) with section 171 (1) (a) of the Constitution. However, whilst we await the alignment process, the argument that the High Court does not have jurisdiction cannot be sustained. The Court supported its position by reference to section 4 of part 4 of the sixth schedule of the Constitution which provides that all existing laws will continue in force but must be interpreted in conformity with the Constitution. Section 89 (6) was in existence when the Constitution came into force, having been introduced by Labour Amendment Act 17 of 2002. The conflict between section 171 (1) (a) of the Constitution and section 89 (6) of the Labour Act must therefore be resolved in favour of and in conformity with the Constitution as per the dictates of section 4 of part 4 of the sixth schedule of the Constitution. The court’s reasoning is easy to follow and cannot in our view be seriously challenged. However, the court may have erred when it held, as was held in the Nyanzara v Mbada Diamond case, supra, that the High Court, being a court of inherent jurisdiction is at liberty to decline jurisdiction in respect of labour matters in the first instance as a way of preserving the specialised jurisdiction of the Labour Court. We shall provide reasons in support of our stance later in this article.
In Mazarire v Old Mutual Shared Services (Pvt) Ltd[9] and Water and Allied Workers Union of Zimbabwe v City of Harare[10] the court correctly held that section 171 (1) (a) reinstated the jurisdiction of the High Court to deal with all civil and criminal matters in the first instance. Labour matters, being civil in nature, can therefore be entertained by the High Court at first instance. The court further held that it is unconstitutional to deny a litigant the right to be heard by the High court on the ground that the matter is a labour matter which should be dealt with by the Labour Court.
In Capri (Pvt) Ltd v Maponga[11] and in Confederation of Zimbabwe Industries v Marque[12], the court acknowledged that section 171 (1) (a) of the Constitution restored the High Court jurisdiction to determine labour matters in the first instance. However, as in the cases of Mazarire v Old Mutual Shared Services (Pvt) Ltd and Water and Allied Workers Union of Zimbabwe v City of Harare, supra, the court did not consider the question whether section 89 (6) of the Labour court is still sustainable in light of section 171 (1) (a) of the Constitution. The court did not also suggest it is at liberty to decline jurisdiction when approached with a litigant to hear a labour matter as a court of first instance.
Analysis of the cases
It is our view that the case of Nyanzara v Mbada Diamonds (Pvt) Ltd was wrongly decided in so far as it held that:
- There is no conflict between section 171 (1) (a) of the Constitution and Section 89 (6) of the Labour Act because Section 89 (6) of the Labour Act was enacted by the legislature pursuant to the provisions of section 172 (2) and (3) of the Constitution.
- Section 171 (1) (a) must be purposively interpreted in order to preserve the Labour Court’s specialised and exclusive jurisdiction to deal with labour matters in the first instance and that an interpretation which allows the High Court to exercise jurisdiction in labour matters in the first instance defeats the intention of the legislature.
We further opine that the court erred when it held, in Nyanzara v Mbada Diamonds (Pvt) Ltd, Kuchena v The Scientific and Industrial Research and Development centre and in Chitiki v Pan African Mining (Pvt) Ltd that it is vested with discretion to decline to hear labour matters in the first instance and to direct a litigant to exhaust domestic remedies, which in this case entail approaching the labour court first.
That there is a serious conflict between section 171 (1) (a) of the Constitution and section 89 (6) of the Labour Act is self-evident from the two provisions themselves. Whilst section 171 (1) (a) says the High Court has jurisdiction over all civil and criminal matters throughout Zimbabwe, section 89 (6) purports to exclude the jurisdiction of the High Court to deal with Labour matters, which are civil matters, in the first instance. This is where the conflict is. The conflict is however easy to resolve. The Constitution is superior to the Labour Act[13]. As such, section 171 (1) (a) of the Constitution prevails over section 89 (6) of the Labour Act. See Kuchena v The Scientific and Industrial Research and Development centre for a detailed analysis.
Further, it is our view that it is not correct to say Section 89 (6) of the Labour Act was enacted by the legislature by virtue of section 172 (2) and (3) of the Constitution. This is because section 89 (6) of the Labour Act was already in existence[14] when section 171 (1) (a) of the Constitution came into force. Being an existing law at the time the Constitution came into force in 2013, section 89 (6) must be construed in conformity with the Constitution in accordance with section 4 of part 4 of the 6th schedule of the Constitution. This leads to the inescapable conclusion that the High Court now has jurisdiction to entertain labour matters as a court of first instance.
We further opine that there is no need to resort to a purposive interpretation of section 171 (1) (a) of the Constitution. The simple reason is that there is nothing unclear about that section to warrant departing from the ordinary and grammatical meaning of the words used therein. See for instance Hewlett v Minister of Finance & Another[15]. Kentridge JA (as he then was) in State v Zuma and Others 1995 (2) SA 642 (CC) noted thus:-
“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single ‘objective meaning’. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconception. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce’s reminder that even a Constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination. …I would say that a Constitution ‘embodying fundamental principles should as far as its language permits be given a broad construction.”
(underlying for emphasis)
The language used by the legislature in section 171 (1) (a) of the Constitution is clear and must be respected. There is no reason for trying to ascertain the intention of the legislature outside the clear language used in section 171 (1) (a). The intention was to restore the jurisdiction of the High Court to deal with Labour matters as a court of first instance. It is unfortunate if that is not what parliament intended. It is unfortunate if parliament wanted to say one thing and said another thing completely different instead. It is not for the court to clear that mess. Parliament must take corrective measures by aligning subordinate legislation with the Constitution which is the superior legislation.
In any case, having established that there is a conflict between section 171 (1) (a) of the Constitution and section 89 (6) of the Labour Act, it is proper that such conflict be resolved in favour of the Constitutional position on the basis of the principle of lex posterior derogate priori. In Tendai Tamanikwa & 3 Ors v Zimbabwe Mainpower Development Fund[16], it was held that;
“There is a general rule of statutory interpretation that where two statutes are in conflict with each other, the later statute, by virtue of the principle of lex posterior derogate priori, is deemed to be the superior one on the basis of implied repeal. This is because it is presumed that when the legislature passes the latter Act it is presumed to have knowledge of the earlier Act”
The principle applies with equal force in this instance. Section 171 (1) (a) of the Constitution impliedly repealed section 89 (6) of the Labour Act. There is no doubt the legislature was aware of the existence of section 89 (6) of the Labour Act when it passed section 171 (1) (a) of the Constitution. Whilst conscious of this fact, the legislature proceeded nonetheless and restored the High Court’s jurisdiction to entertain all civil and criminal matters throughout Zimbabwe. If the legislature wanted to safeguard the so called specialised jurisdiction of the Labour Act, it ought to have provided, as an exception that the original jurisdiction must be exercised subject to the provisions of section 89 (6) of the Labour Act. It did not do so. We must therefore stand by what it said.
With the foregoing in mind, the bigger question that needs to be answered is whether the High Court has discretion to decline jurisdiction when approached by a litigant as a court of first instance with a labour related dispute?. Our view is that the court does not have any such discretion. This is supported by reasons which we have given already; that there is a conflict between section 171 (1) (a) of the Constitution and section 89 (6) of the Labour Act, that the conflict must be resolved in favour of the Constitional position, that there is no basis for departing from the clear words used in section 171 (1) (a) of the Constitution and that section 171 (1) (a) of the Constitution impliedly repealed section 89 (6) of the Labour Act.
Over and above that, our position is seconded by section 69 (3) read with section 46 (1) (a) of the Constitution. Both sections fall under chapter 4 on Declaration of Rights. Section 69 (3) of the Constitution provides as follows:-
“69 Right to a fair hearing
- Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute”
Section 46 (1) (a) of the Constitution provides as follows:-
“46 Interpretation of Chapter 4
- When interpreting this Chapter, a court, tribunal, forum or body –
- Must give full effect to the rights and freedoms enshrined in this Chapter”
Upon a reading section 69 (3) of the Constitution, one would start to see that a litigant who approaches the High Court with a labour related dispute on the strength of section 171 (1) (a) of the Constitution does so in the exercise of the right to be heard by that court. It must therefore be immediately clear to the court that an interpretation of section 171 (1) (a) of the Constitution which does not promote the right of access to the court does not accord well with section 46 (1) (a) which demands that the right be given full effect. For the litigant, it is a Constitutional right to be heard. For the Court, it is Constitutional duty to hear the litigant. For the litigant, it matters not that there is a Labour Court that is properly suited to determine labour disputes. Once the litigant has made a choice to approach the High Court for determination of a labour dispute, the Litigant’s choice in that case supersedes the Judge’s discretion. In fact, there is no discretion to talk of because it is unconstitutional to deny the Litigant the right of access. Any purported exercise of discretion with the effect of denying a litigant access to the court ought to be interfered with by the Supreme Court as that would amount to unconstitutional and improper exercise of discretion[17].
By M Moyo, DBN Labour Department.
[1] The Constitution came into force on
[2] By virtue of section 89 (6) of the Labour Act Chapter 28:01. See also the case of Tuso v City of Harare HH 01/04
[3] Nyahora v CFI Holdings (Pvt) Ltd SC 81/14
[4] Stylianou & 2 Ors v Mubita & 25 Ors SC 7/17.
[5] Supra. The section gives the Labour Court exclusive jurisdiction to deal with labour matters as a court of first instance.
[6] HH 63/15
[7] HH 180 /16
[8] HH 656/ 15
[9] HH 187/ 14
[10] HH 238/15.
[11] HH 92/15
[12] HH 125/15
[13] Section 2 of the Constitution
[14] Section came with Labour Amendment Act No. 17 of 2002.
[15] 1981 (ZLR 571.
[16] SC 33/13
[17] Barros and Another v Chimuponda 1999 (1) ZLR 58 (SC).