Hamilton Fortunate Gomba v Associated Mine Workers Union

### Preamble
HH-118-05
HC 5300/05
HAMILTON FORTUNATE GOMBA
versus
ASSOCIATED MINE WORKERS UNION
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HIGH COURT OF ZIMBABWE
PATEL J
HARARE, 28 October 2005

Urgent Application

Mr. Biti, for the applicant
Mr. Gahadzikwa, for the respondent

PATEL J:

This matter was heard and disposed of on the 28th of October 2005. The application for an interdict was granted on an urgent basis and the reasons for my decision were handed down ex tempore. The respondent has subsequently appealed against that decision. The full reasons for my judgement are as follows.

The Facts

The applicant in this matter seeks an anticipatory interdict to preclude the termination of the salary and benefits due to him in his capacity as an employee of the respondent trade union.

The applicant was elected to the post of senior vice-president at the trade union’s congress held in the year 2000. By virtue of Article 8 of the respondent’s constitution, the applicant simultaneously became a full-time employee of the respondent.

At the last congress of the respondent, which was held in August 2005, the applicant was not re-elected to the post of vice-president. He then instituted an application in Case No. HC 5103/05 challenging the legality and proceedings of the congress. This application has yet to be adjudicated and determined.

At the end of September 2005, the respondent calculated what it deemed to be terminal benefits due to the applicant, totalling a net sum of circa $96 million. The applicant was paid the sum of $40 million, leaving a balance of $56 million still to be paid.


The applicant subsequently filed a separate urgent application in Case No. HC 5131/05 which was dismissed on the 11th of October 2005 by Guvava J. on the basis that the matter was not urgent. At the hearing of the present matter, *Mr. Gahadzikwa*, appearing for the respondent, was unable to adduce any meaningful detail as to the facts of the previous application. *Mr. Biti*, for the applicant, indicated that the relief sought therein was different and that it had been dismissed for want of urgency without any appearance or hearing.

**The Arguments**

It was submitted on behalf of the applicant that the respondent’s constitution is silent as to the employment status of a vice-president who is not re-elected and that the applicant’s employment status did not automatically terminate at that juncture. His position as full-time employee is subject to the governing labour laws and remains intact until it is duly terminated. It was also submitted that after demanding his salary for September 2005, the applicant accepted the partial payment of $40 million under protest and without prejudice to his rights as an employee.

For the respondent, it was submitted that the present matter constitutes a labour dispute and that the High Court therefore has no jurisdiction to entertain it at the first instance. It was further contended that the applicant’s employment contract was automatically terminated in August 2005 when he failed to be re-elected to the post of vice-president. Moreover, by accepting the payment of $40 million, the applicant had waived any rights he might have held under his contract of employment.

**Jurisdiction of the Labour Court and the High Court**

The Labour Court is a special court created under the Labour Act [Chapter 28:01]. It is trite that as a creature of statute the Labour Court has no jurisdiction beyond that granted by the statute creating it. Unlike the superior courts, it has no inherent jurisdiction and may claim no power or authority outside the confines of its statute. See *Hatfield Town Management Board v Mynfred Poultry Farm (Pvt) Ltd* 1962 R&N 799 at 802 (dealing with the status and jurisdiction of the magistrates court).

In marked contrast, the High Court is a superior court of original and unlimited jurisdiction – subject only to the clear requirements of statute. In other words, except where its jurisdiction is ousted or circumscribed by statute in very clear terms, the High Court is endowed with full jurisdiction in all matters. Insofar as concerns civil matters, section 13 of the High Court Act [*Chapter 7:06*] declares in very succinct terms that:

“Subject to this Act and any other law, the High Court shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe”.

Section 89 of the Labour Act, which deals with the functions, powers and jurisdiction of the Labour Court, provides as follows in its relevant portions:

“(1) The Labour Court shall exercise the following functions—

(a) Hearing and determining **applications and appeals in terms of this Act** or any other enactment; and

(b) hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) ........................................;

(d) ........................................;

(e) doing such other things as may be assigned to it in terms of this Act or any other enactment.

(2) .........................................

(3) .........................................

(4) .........................................

(5) .........................................

(6) 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)**”.

(The emphasis is mine).


The interpretation of the above-cited provisions has arisen for consideration by this Court in two relatively recent cases, namely, *Tuso v City of Harare* HH 1-2004, and *Sibanda & Anor v Chinemhute N.O.* HH 131-2004.

In *Tuso’s* case, Bhunu J. found that the Labour Court had been endowed with special review powers to deal precisely with the issues placed before him for adjudication. He accordingly declined to exercise the review jurisdiction of the High Court in that case.

In *Sibanda’s* case, the relief sought by the applicant was that of a *declaratur*, a remedy originating in the common law. Makarau J. held that the *declaratur* jurisdiction of the High Court could only be ousted by a specific provision to that effect and that section 89(6) of the Labour Act clearly did not purport to do so. She further held that the Labour Court could only exercise exclusive jurisdiction in those instances where “the parties, the subject matter, the remedy sought and the procedure for procuring such remedy” were expressly provided for in the Labour Act.

For the present, the Court is not concerned with the exercise of its review jurisdiction or the power to grant any *declaratur*. What the applicant *in casu* seeks is an interdict to restrain the respondent from withholding his emoluments and perquisites on the basis that his employment has not been lawfully terminated. The power of this Court to issue an interdict in a proper case is unquestionable and guided only by the requisites governing the grant of interdicts generally. In my view, it is an inherent power which may be exercised by the Court in every civil sphere – even in the sphere of labour relations. As I read it, there is nothing in the Labour Act or in any other enactment that might be construed to impinge upon or to detract from that general jurisdiction.

Apart from the broad reasons postulated above vis-à-vis the inherent powers of the High Court, there is another more specific and pointed rationale for assuming jurisdiction in this matter –
 notwithstanding its labour related connotations. And this arises from the wording of the Labour Act itself.

Section 89(6) as read with section 89(1) of the Act stipulates that the Labour Court shall have exclusive jurisdiction in the first instance to hear and determine “applications and appeals in terms of this Act or any other enactment” as well as “matters referred to it by the Minister in terms of this Act”.

The applications and appeals that arise for determination in terms of the Labour Act are as follows:

(a) applications for rescission or variation of judgements – section 92C;

(b) applications pursuant to decisions of labour officers under section 93(7) – sections 89(2)(b) and 89(2)(c);

(c) applications for interim relief – section 97(4);

(d) appeals against any determination or direction of the Minister in terms of section 25, 40, 51, 79 or 82 (relative to the registration and accreditation of trade unions and the approval of collective bargaining agreements) – section 97(1)(a);

(e) appeals against any determination or direction of the Minister in terms of any regulations made pursuant to section 17 (governing conditions of employment generally) – section 97(1)(a);

(f) appeals against any determination made under an employment code in terms of section 101 – section 97(1)(b);

(g) appeals against the conduct of the investigation of a dispute or unfair labour practice by a labour officer – section 97(1)(c);

(h) appeals against the conduct of any proceedings in terms of an employment code – section 97(1)(d);

(i) appeals on questions of law from the decision of an arbitrator – section 98(10);


(j) appeals against or arising from any show cause order or disposal order – section 110(1).

Apart from the above-cited instances, there may well be other applications or appeals specifically referable to the Labour Court in terms of “any other enactment”. However, I am not aware of any other applicable provisions and, in any event, if there are such provisions that are extant, I do not think that they are of direct relevance to the present matter. Similarly, I do not deem it necessary to elaborate the circumstances in which matters may be referred to the Labour Court by the Minister in terms of the Act.

In my view, the words employed in the provisions under review are clear and unambiguous. The exclusive jurisdiction of the Labour Court apropos applications and appeals under the Labour Act is explicitly confined to the matters that I have enumerated and alluded to above. This exclusivity in the first instance does not extend to any other matter, whether in the realm of labour relations or elsewhere and whether in the nature of an application or appeal or other form of proceedings.

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 subsections (1) and (6) of section 89 of the Labour Act.

The application *in casu*, as I have already stated, is an application to restrain the respondent from withholding the applicant’s salary and benefits of employment. It is patently not an application, appeal or other matter identified in section 89 of the Labour Act. It follows that this Court remains at full liberty to entertain the present application.


Urgency

On the question of urgency, the respondent was unable to explain the reasons for which the applicant’s earlier application was dismissed, either in its opposing affidavit or in the submissions made on its behalf at the hearing of this matter. Nor was the respondent able to adequately counter the grounds for urgency proffered on behalf of the applicant. As I see it, the applicant stands to be imminently deprived of the pecuniary and material benefits of his employment. I am therefore satisfied that the applicant has made out his case for this application to be heard and determined on an urgent basis.

Employment Status: Fixed Term or Indeterminate

As I have already indicated, Article 8(b) of the respondent’s constitution simply provides for the election of two deputy or vice-presidents “one of whom shall be employed full-time”. Article 8(b) also stipulates that “The term of office of the deputy presidents shall not exceed four years provided that they shall be entitled to stand for re-election to another term of office”.

At first blush, these provisions would suggest that the applicant’s contract of full-time employment is a fixed term contract of definite duration, linked to his term of office as vice-president and, therefore, co-extensive and co-terminus with that term of office. In other words, his contract of employment automatically terminates upon the expiration of his term of office and, as such, is a contract referred to in section 2(c) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 2003 (S.I. 130/2003). If this is correct, the applicant cannot claim any unlawful termination of his employment and has no further recourse for salary or benefits of employment as against the respondent.

This simple approach, however, fails to take into account that the respondent’s constitution is silent as to the specific terms and conditions applicable to a vice-president’s full-time employment and does not explicitly spell out the duration of that employment. That being so, I am persuaded to adopt the approach advocated by Mr. Biti, to wit, that the applicant’s status as a vice-president is separate and distinct from his status as a full-time employee of the respondent. In other words, his position is analogous to that of a managing director in a company who holds a dual position, viz. that of director subject to the requirements of the Companies Act [Chapter 24:03] and that of managerial employee governed by the provisions of the Labour Act [Chapter 28:01]. See James North (Zimbabwe) (Pvt) Ltd & Ors v Mattinson 1989 (1) ZLR 322 (H) at 334-335, Samuriwo v Zimbabwe United Passenger Co. 1999 (1) ZLR 385 (H), and Gomwe & Anor v Associated Newspapers of Zimbabwe (Pvt) Ltd 2001 (2) ZLR 415 (H).

The duality of a managing director’s position is aptly described by Smith J in Gomwe’s case at 419:

“In the case of the applicants, the first applicant was appointed as advertising and marketing director and the second applicant was appointed as finance director. Whether or not their appointments were in terms of the contracts filed with the supplementary affidavit, clearly they must have entered into a contract of employment with the respondent because each had specific duties assigned to her or him, and a specific salary was fixed in consideration for the performance of those functions. It is obvious that the applicants had two hats with the respondent. During business hours and outside meetings of the Board, they were employees of the respondent, as such they were expected to report for duty and work business hours, or longer, as required by virtue of their contracts of employment. Each was then entitled to demand and be paid the appropriate salary and other benefits as provided in their contracts. However, when they attended board meetings they were directors and they attended the meetings in that capacity. For so attending they were paid the appropriate fee fixed by the board for all directors”.

In the present case, I accordingly take the view that the applicant’s status and term of office as trade union vice-president is subject to the respondent’s constitution, but that his status and tenure as the respondent’s employee is governed by and terminable in conformity with the prevailing labour laws.

I am fortified in this view by the conduct and opposing papers of the respondent itself. In paragraph 6(a) of the respondent’s opposing affidavit, it is stated that the applicant accepted part-payment of his terminal benefits as set out in Annexure “A”. The amounts tabulated in this annexure represent leave pay, a pro rata bonus, back pay and notice pay. What is of particular significance is the computation of 3 months notice pay. If, as is averred by the respondent, the applicant was engaged for a fixed duration, there would be no need to give any notice to terminate his employment and, correspondingly, no need whatsoever to make any provision for notice pay. In my view, the making of payment in lieu of notice is clearly inconsistent with the existence of a fixed term contract. It can only be explained in the context of and as an adjunct to the termination of a contract of employment of indefinite duration.

I am further fortified in the approach that I have taken by the clear provisions of section 12 of the Labour Act. Section 12(2)(b) of the Act requires an employer, upon engaging an employee, to:

“inform the latter in writing of …….. the period of time, if limited, for which the employee is engaged”.

Furthermore, section 12(3) of the Act declares that:

“A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time ……….”


My reading of the respondent’s constitution is that it does not specify the duration or date of termination of the applicant’s contract of employment. Additionally, there is nothing in the papers before me to indicate that the applicant was informed in writing of the limited duration of his contract at the time of his engagement. Accordingly, his contract with the respondent must be regarded as a periodic or indefinite contract of employment without any limit of time. Moreover, as I have already stated, this conclusion is perfectly compatible with the respondent’s own conduct in calculating the applicant’s terminal benefits.

Waiver of Rights

The respondent’s position is that the applicant accepted part payment of his terminal benefits at the end of September 2005 and has thereby tacitly waived his rights to challenge the termination of his employment. On his part, the applicant avers that when he demanded his monthly salary for September he was offered terminal benefits instead, and that he only took partial payment under protest. This averment was not disputed by the respondent.

As a rule, waiver is not to be lightly presumed. As was observed by GUBBAY JA in *Sterling Products International Ltd v Zulu* 1988 (2) ZLR 293 (SC) at 304:

“No stronger proof than a preponderance of probability is required. ……………… But a court does not lightly assume that a party has abandoned or renounced his right, especially where reliance is placed on a tacit waiver.”

The governing principles, as enunciated by INNES CJ in *Laws v Rutherford* 1924 AD 261 at 263, are as follows:

“The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it. Waiver is a question of fact, depending on the circumstances. It is always difficult, and in this case specially difficult to establish.”


On the facts presented to the Court, I take the view that the respondent has not discharged the onus placed upon it to establish the waiver that it seeks to impute to the applicant. I am satisfied that the applicant, facing the invidious prospect of not receiving any pay at all, accepted the part payment under protest. It follows that he did not waive his rights to challenge the purported termination of his employment.

**Termination of Employment**

At common law, either party to an indefinite contract of employment is entitled to terminate it by giving the requisite period of notice to the other party. Under our law, however, the employer’s right to terminate upon notice is effectively hamstrung by section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 2003. In the absence of the employee’s agreement or consent, the employer is confined to two possible avenues for terminating the employment contract. The first is to suspend and then dismiss the employee on the grounds of misconduct in terms of section 3 of the above-cited Regulations, as read with section 12B of the Labour Act. The second is to follow the route of retrenchment as prescribed by section 12C of the Labour Act, as read with the Labour Relations (Retrenchment) Regulations, 2003 (S.I. 186/2003).

In the instant case, the respondent has followed neither of the above avenues in purporting to terminate the applicant’s contract of employment. Accordingly, it must be found that the applicant’s employment with the respondent has not been lawfully terminated in accordance with the Labour Act and its subordinate regulations.

**Requisites for Interdict**

It follows from what I have stated above that the applicant has established not only a *prima facie* right but a clear right to the emoluments and benefits of his employment pending the lawful termination of his contract of employment by the respondent.

As regards the other requisites for the issue of an interdict in a case of this nature, the submissions made on behalf of the applicant were not challenged at all, either in the respondent’s opposing papers or by counsel for the respondent. In any event, it is clear from the evidence before the Court that the applicant will suffer irreparable harm if the status quo ante is not preserved pending the proper termination of his contract and the determination of his application to this Court in Case No. HC 5103/05. It is equally clear that the balance of convenience manifestly favours the applicant inasmuch as the prejudice that he will endure if he is not granted the remedies he seeks significantly outweighs the prejudice that the respondent’s might sustain in the event that those remedies are granted.

Accordingly, I am satisfied that the applicant is entitled to the relief that he seeks by way of a final order.

**Order**

In the result, it is ordered that:

1. The respondent be and is hereby interdicted from repossessing the motor vehicle, Toyota Hilux 2.8, Reg. No. 635-062J, and mobile phone device, being a Nokia 7620, pending the outcome of High Court Case No. HC 5103/05.

2. The respondent shall pay all arrear salaries and benefits to date and, in addition, shall pay monthly salaries and benefits to the applicant until such time as the applicant’s contract of employment is lawfully terminated.

3. The respondent pays costs of suit.


Honey & Blankenberg, applicant’s legal practitioners
Jakachira & Company, respondent’s legal practitioners
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