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The Labour Court enjoys exclusivity in all matters where the cause of action and the remedy are all provided for in the Act. Outside that, for instance, where the cause of action and the remedy are located in the common law, the ouster provision in the Labour Act has no application and the High Court
will exercise jurisdiction. In this article, the writer has deemed it necessary to look at recent developments regarding the place of the High Court in labour matters.
The current relationship between the Labour Court and the High Court is such that the High Court cannot easily be removed from solving labour disputes. Under our legal system in Zimbabwe, the High Court is actually the default court. It does have concurrent jurisdiction based on common law. Put in other words, you can go to the High Court even if there is another court.
It is more likely that some HR practitioners get confused by the reading of Section 89(6) of the Labour Act Cap 28:01. Section 89(6) of the Labour Act states “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).”
There is a clear distinction on the jurisdiction of both the High Court and the Labour Court in terms of Sections 171 and 172 of the Constitution of Zimbabwe Amendment (No 20) of 2013.
It is clear from a close reading of the two sections that the High Court has original jurisdiction over all civil and criminal issues while on the other hand the Labour Court has jurisdiction over such matters as per an Act of parliament.
I shall share with you here what a learned judge of the High Court has said on two occasions regarding jurisdiction of the High Court in handling labour matters.
In the matter between Confederation of Zimbabwe Industries v Mbatha HH 125/2015, the learned Justice Mathonsi J; remarked that “regarding the existence of an appeal to the Labour Court I agree with Mr Mpofu that an Art 34 application is available to a litigant outside the appeal procedure and now that Section 171 (1) (a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters which had been ousted by the provisions of Section 89 (6) of the Labour Act [Chapter 28:01] there is nothing stopping me from exercising jurisdiction. Section 171 (1) (a) of the new Constitution provides: “The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”
To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt that s 171 (1) (a) overrides s 89 (6) of the Labour Act.
What this means is that by clear constitutional provision this court has original jurisdiction over all matters including those of a labour nature where prior to the new constitutional order, the Labour Court enjoyed exclusivity.”
In another recent matter between Steelmakers Zimbabwe (Pvt) Ltd v M Mandiveyi HH 479/2015, Mr D. Mwonzora of Mwonzora and Associates representing the respondent objected to the application on the basis that the High Court has no jurisdiction over the matter as it is purely a labour dispute in which the Labour Court enjoys exclusive jurisdiction in terms of section 89(6) of the Labour Act (Chapter 28:01).
He submitted that “all the authorities relied upon by Mr Joseph Masango of I. Murambatsvina, Tizirai – Chapwanya representing Steelmakers Zimbabwe (Pvt) Ltd, in asserting the jurisdiction of the High Court are merely persuasive and not binding on him and should be departed from in favour of a refusal to exercise jurisdiction.
“Mr Mwonzora maintained that the test to be applied in determining whether to decline jurisdiction is whether the matter is one which, if placed before
the Labour Court, that court would exercise jurisdiction. If so then jurisdiction should be declined.”
The learned Justice Mathonsi remarked that: “ I have had occasion to pronounce on that argument before in the case of William Bains & Co. Holdings (Pvt) Ltd v Nyakudya HH309/13 where at p 2 of the cyclostyled judgement I stated :
“Regarding the issue of jurisdiction this court has stated on times without number that its jurisdiction has been ousted by the provisions of Section 89(6) of the Labour Act (Chapter 28:01) only in those matters where the Labour Court is granted specific jurisdiction by s 89(1) of the Act: Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111(H) 114C; DHL International Ltd v Madzikanda 2010 (1) ZLR 201(H) 204B-D; Moyo v Gwindingwi N.O & Anor 2011(2) ZLR 368(H)374 A; PG Industries (Zimbabwe) Ltd v Machawira 2012(1) ZLR 552(H) 556B.
“The Labour Court enjoys exclusivity in all matters where the cause of action and the remedy are located in the common law, the ouster provision in the Labour Act has no application and this court will exercise jurisdiction.”
The learned Justice further remarked that: “I still stand by that position and Mr Mwonzora has not said anything that would persuade me to shift.”
In conclusion, it is clear from the legal authorities cited above that the High Court can sit as a court of first instance in labour matters and that Section 89(6) of the Labour Act (Chapter 28:01) does not apply in the case of the High Court. There is clear constitutional provision that the High Court has original jurisdiction over all matters including those of a labour nature.
Disclaimer: Opinions expressed herein are solely those of the author.
- Matthias Ruziwa is an experienced and progressing Strategic Human Resource practitioner. He is also an independent arbitrator practising in the City of Kwekwe, Midlands Province. You can contact Matthias at the following email address: [email protected]/WhatsApp 0773 470 368
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