Zimtrade V Malord Makaya

### Preamble
HH 52-2005
HC 970/05
ZIMTRADE
versus
MALORD MAKAYA
---------


==============================

ZIMTRADE
versus
MALORD MAKAYA

HIGH COURT OF ZIMBABWE
MAKARAU J
HARARE 1 and 15 June 2005

Unopposed Motion

Mr J Dondo, for applicant
Respondent in default

MAKARAU J: The applicant filed a Court Application on 25 February 2005, seeking an order compelling the respondent to surrender to it a lap top computer and accessories and a motor vehicle all fully described in the application. The application was duly served and the respondent filed a notice of opposition out of the time limits prescribed in the rules of this court. Despite notice to the respondent to regularise her papers, nothing was done to uplift the automatic bar against the respondent resulting in the matter being properly set down before me on the unopposed roll.

The facts giving rise to the application appear in the applicant’s founding affidavit as follows: the applicant employed the respondent up to 31 December 2004 as its Manager for the Micro Small and Medium Enterprises. Following misunderstandings between the two, the respondent was suspended from employment without salary and benefits. On 25 January 2005, the respondent was dismissed from employment with effect from the date of suspension. The respondent then requested a referral of the matter to a labour officer in terms of section 93 of the Labour Act. She declined to return the property of the applicant in her possession prompting the applicant to approach this court for relief.

At the hearing of the matter, I *mero motu* raised the issue of jurisdiction in light of the amendment to the Labour Act [*Chapter 28:02*] which limits the jurisdiction of all other courts in the first instance save that of the Labour court in matters provided for in the Act. I requested Mr Dondo to file Heads of Argument supporting his submission that this court has jurisdiction in the matter. This he has since done and I express my gratitude to him for promptly filing his submissions.

The issue of parallel jurisdiction between this and the Labour Court appears set to dog this jurisdiction for some time to come due to the wording of the section of the Act that seeks to create an inferior but exclusive Labour Court in the country. The relevant section could have been drafted in such a way as to make clear matters over which the Labour Court has exclusive jurisdiction. As things stand, different interpretations are being placed on section 89(6) of the Act, placing this court in the invidious position where on one hand it has to jealously guard its inherent jurisdiction and allow the widest possible access to all litigants seeking justice from it and on the other, seek to give effect to the legislature’s intention of creating a specialty court of the Labour Court. (See *Sibanda and Another v Benson Chinemhute and Another* HH 131/04).

Notwithstanding the arguments advanced by Mr Dondo, I am of the opinion that matters relating to suspension from employment, with or without salary and matters relating to dismissals are specifically within the purview of the Labour Court as these are matters that are provided for in the Act and the regulations made thereunder. There is adequate provision under the Act for the setting up of machinery to resolve such disputes. Thus, following my reasoning in the *Sibanda* matter, the jurisdiction of this court is specifically ousted in respect of matters of dismissals and suspensions as these are specifically provided for in the Act.

It is, in my further view, unacceptable splitting of hairs to separate the determination of the validity of a suspension from employment, on one hand, from the determination of whether or not that suspension affects the benefits enjoyed by the employee, on the other hand. The two are interdependent and are both governed by the existing employment relationship obtaining between the two parties. The argument that the employer can vindicate his property at any time does not impress me as the employee can always raise the defence of a claim of right to possess the property until he or she is effectively and lawfully disentitled to the property. Where the validity of the suspension of the employee or the termination of their employment is still pending, it is my view that the *vindicatio rei* cannot properly lie at the instance of the employer.


On the basis of the foregoing, I hold that this court has no jurisdiction to entertain the above application. In the result, I make the following order:

1. The application is dismissed.
2. There shall be no order as to costs.

*Chinamasa Mudimu & Chinogwenya*, applicant’s legal practitioners.
--- END OCR FALLBACK ---