Telecel Zimbabwe (Pvt) Ltd v Naquib Omar

HH 116 – 2011
                                                                            HC 1837/10


TELECEL ZIMBABWE (PVT) LTD
versus
NAQUIB OMAR


HIGH COURT OF ZIMBABWE
CHIWESHE JP
HARARE, 30 September 2010 & 22 June 2011


Mr G.V. Mamvura, for the applicant
Mr O. Shava, for the respondent


       CHIWESHE JP: The respondent was a senior employee of the applicant, holding
the post of commercial director. On account of his employment, he enjoyed the use of a
company motor vehicle, a Toyota Prado. On 5 February 2010 the respondent’s contract
of employment was terminated pursuant to a disciplinary hearing. The respondent has
appealed against that decision of the disciplinary authority. The appeal is pending before
the Labour Court. In the meantime, the applicant has sought to repossess the Toyota
Prado issued to the respondent on account of his employment, arguing that despite the
noting of the appeal, the respondent is no longer its employee and he cannot, on that
account, hold on to its vehicle. In any event, argues the applicant, in terms of s 92 E (2)
of the Labour Act [Cap 28:01] the noting of an appeal with the Labour Court does not
have the effect of suspending the judgment appealed against.
       In his supplementary heads of argument the respondent argued in limine that this
court has no jurisdiction to determine the matter. Section 89 (6) of the Labour Act [Cap
28:01] (“the Act”) provides as follows:

       “(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)”

And subsection (1) provides inter alia in the applicable paragraph as follows:-

“(I) The Labour Court shall exercise the following functions :-
  i.     hearing and determining applications and appeals in terms of this Act or any
         other enactment ;”
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      The provisions of s 89 (6) and 89 (1) (i) of the Act are clear and unambiguous. In
 all labour matters, no court, other than the Labour Court, has jurisdiction in the first
 instance to hear and determine any application, appeal or matter in which s 89 has
 bestowed jurisdiction on the Labour Court.
      Many a time legal practitioners have approached this court with applications
 pertaining to labour matters notwithstanding the ouster of jurisdiction in terms of s 89
 of the Act. Some have argued that this court, being clothed with inherent jurisdiction,
 is empowered to intervene in a purely labour dispute by virtue of that fact. Others have
 argued that at the very least this court has concurrent jurisdiction to determine labour
 disputes.
      I am unable to agree with such submissions, given the clear wording of s 89 (6)
 and (1) of the Act. The legislature clearly intended that all labour disputes be dealt with
 to the exclusion of any other court by the Labour Court, at least in the first instance. If
 the legislature had intended otherwise, it would have enacted appropriate and deliberate
 provisions to that effect. I would hold that in the absence of any such provision, this
 court has no jurisdiction to hear and determine the present application.
      I am fortified in this regard by the decision of MAKARAU JP (as she then was) in
 the case of DHL International (Pvt) Ltd vs Clive Madzikanda HH 51-2010 wherein the
 facts were on all fours with the facts in the present case.
      In that case, at p 2 of the cyclostyled judgment, the learned Judge President (as
 she then was) stated, and I agree, that it was now settled that “a dispute falls to be
 determined exclusively by the Labour Court if such arises from a cause of action that
 has been specifically provided for in the Act and for which a remedy is also provided in
 the Act.”
      The learned Judge President then made reference to the case of National Railways
 of Zimbabwe vs Railways Artisans Union and Others SC 8/05 and at p 3 of the
 cyclostyled judgment, she held as follows:
      “As a general statement, it is correct that the Labour Court has no jurisdiction to
      entertain claims that are brought at common law. It can only determine
      applications and appeals among others that are brought in terms of the Act.
      Where, however, a dispute can either found a cause of action at common law and
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       or in terms of the Act, a case of apparent concurrent jurisdiction between this
       court and the Labour Court appears to arise. I say appears to arise because the
       apparent conflict can be easily resolved by paying regard to the overall intention
       of the Legislature in creating the Labour Court. In my view, in such a case, the
       Labour Court’s jurisdiction, being special, must prevail. It would make a
       mockery of the clear intention of the legislature to create a special court if the
       jurisdiction of such a court could be defeated by the mere framing of disputes into
       common law cause of action where the Act has made specific provisions for the
       same. In my view, if the dispute is provided for in the Act, the Labour Court has
       exclusive jurisdiction even if the dispute is also resolvable at common law.”

       I am satisfied that the Labour Court has exclusive jurisdiction to hear and
determine in the first instance any application or appeals where the cause of action has
been specifically provided for in the Labour Act and for which a remedy is also provided
in the same Act.
       Accordingly, I hold that this court has no jurisdiction to hear this application. It is
therefore ordered that the application be and is hereby dismissed with costs.




Scanlen & Holderness, applicant’s legal practitioners
Mbidzo Muchadehama & Makoni, Respondent’s legal practitioners