Tawanda Gozo v Minister of Local Government and Public Works and Others

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/50/25
HELD AT HARARE 25 JANUARY 2025
CASE NO. LC/H/1097/24
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO.LC/H/50/25

HELD AT HARARE 25 JANUARY 2025				CASE NO. LC/H/1097/24

AND 14 FEBRUARY 2025

IN THE MATTER BETWEEN:

TAWANDA GOZO							APPLICANT

AND

MINISTER OF LOCAL GOVERNMENT

AND PUBLIC WORKS						FIRST RESPONDENT

CHAIRMAN, LOCAL GOVERNMENT BOARD		SECOND RESPONDENT

CITY OF MASVINGO						THIRD RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant					Professor L. Madhuku

For First Respondent			Mr. A. Kandungure

For Third Respondent			Advocate T. Zhuwarara

With Mr. Mujaya

No Appearance for Second Respondent

MURASI J.,

This is an application for a declaratory order.

BACKGROUND

It is essential to relate the facts in some detail. Applicant is an engineer by qualification who was employed by the Third Respondent as a Director of Engineering Services. Applicant was suspended from employment in February 2021 on allegations  that the quality and quantity of water had deteriorated. Charges were preferred against the Applicant and he was brought before a Disciplinary Committee which found him guilty and recommended his dismissal. Applicant’s appeal did not meet the desired result.

Third Respondent later referred its decision to the Second Respondent in terms of the Urban Councils Act. The response from the Second Respondent was that it did not approve Applicant’s dismissal from Third Respondent’s employment. A flurry of activities occurred between Applicant’s legal practitioners and Third Respondent’s legal practitioners. It was averred on behalf of Applicant that the decision of the Second Respondent meant that Applicant was to be reinstated to his former position. This was resisted by the Third Respondent. Third Respondent approached the High Court in Masvingo seeking an order as to whether Second Respondent could make an Order reinstating the Applicant. That Court’s decision was to set aside the decision of Second Respondent’s letter dated 14 September 2022. The Court also ordered that the matter be referred to Second Respondent ‘to render a decision within the confines of section 123 (1) (e) of the Urban Councils Act, (Chapter 29:15), namely only either approve or decline to approve the discharge of’ the Applicant.

This culminated in a letter dated 2 July 2024 from Second Respondent to the following effect:

“The Board notes that the High Court case for Eng. T. Gozo was heard on the 7th of December 2023 and using the Court ruling, the Local Government Board (LGB) resolved through resolution number LGB018/24 to advise Masvingo City Council that using section 123 (1) © of the Urban Councils Act, (Chapter 29:15) the LGB does not approve the dismissal of Engineer T. Gozo from his position as Director of Engineering Services for Masvingo City Council.”

Armed with this letter, Applicant reported for work. Applicant states that he attended at work for two days but was sent back home. Applicant avers that he does not know his current employment status.

THE APPLICATION

Applicant seeks a declaratory order in the following terms:

“1. It be and is hereby declared that where the Local Government Board, established under section 116 of the Urban Councils Act (Chapter 29:15), does not approve the discharge of a senior official of an urban council pursuant to kits function set out in section 123 (1) (e) of the aforesaid Act, that senior official thereby remains an employee of the urban council concerned.

2. The legal consequence of the decision of the Local Government Board communicated by letter dated 2 July 2024 not to approve the dismissal of the applicant from his position as Director of Engineering Services for the 3rd Respondent is that the applicant remains an employee of the 3rd Respondent.”

SUBMISSIONS BY THE PARTIES

I should mention that Mr. Kadungure, for the First Respondent, stated thus:

“My instructions are that we are not opposed to the application by the Applicant. We abide by the decision of the Court.”

Applicant’s Submissions

I make the observation that Applicant, in paragraph 6 of the Founding Affidavit, states that:

“For the avoidance of doubt, this application is therefore under section 89 (1) of the Labour Act, (Chapter 28:01)”

Professor Madhuku stated that he largely would abide by the documents filed of record. He further stated that the critical issues to be resolved were whether the Court had jurisdiction and the proper meaning to be given to the provisions of section 123 of the Urban Councils Act, (Chapter 29:15). He submitted that the issue of jurisdiction was now settled as shown in the cases cited in Applicant’s heads of argument. In this regard, he referred to the case of Stanley Nhari v Robert Mugabe & Ors SC161/20. He submitted that in respect of that ruling, it was accepted by the Supreme Court that jurisdiction in certain matters had been removed from the High Court and transferred to specialized courts whose jurisdiction had the effect of ousting the jurisdiction of the High Court. He also referred the Court to the observations made by GARWE JA (as he then was) in respect of the relevant constitutional provisions creating both the High Court and the Labour Court. Professor Madhuku also referred the Court, in the heads of argument to the case of Cainos Chingombe & Another v City of Harare & Others as regards the fact that the High Court could not exercise jurisdiction in the first instance in respect of labour matters.

Professor Madhuku further submitted that the issue of the Labour Court’s jurisdiction to issue declaratory orders was put beyond question in TN Harlequin Luxaire Limited v Mberikunashe Masvimbo & 14 Others SCB 84/22. He referred the Court to paragraph 11 of those heads of argument. The paragraph quotes from the cited case in the following manner:

“One of the pillars of those opinions which championed the overall and original jurisdiction of the High Court in all matters was that only the High Court has jurisdiction to issue a declaratory order, per s 14 of the High Court Act. However, in my view, this was an incorrect understanding of the nature of the remedy of a declaratory order. While s 14 of the High Court Act captures this remedy in its broadest and classical form as a ‘gentle order’ which may be issued with or without any consequential relief, there is absolutely no doubt in my mind that the Labour Court in its daily operations does also routinely issue declaratory orders, holding, for example, that an employee has been wrongfully dismissed or certain actions constitute unfair labour practices and then proceeding to grant consequential relief. I make this point to emphasize that even in the absence of the Nhari v Mugabe (supra) matter, the view of this Court would have been to uphold the Labour Court’s exclusive jurisdiction in employment and labour matters.”

The summary in that portion of the heads of argument was that as the law stood now, the Court had exclusive jurisdiction to issue declaratory orders in labour matters.

Professor Madhuku went on to address the issue of whether it was appropriate to issue the declaratory order sought. He submitted that the provisions of section 123 of the Urban Councils Act relate to issues of labour employment. He added that there was no express provision in the Urban Councils Act dealing with the effect of non-approval of the discharge of a senior employee by a council. He also stated that this encroached into the realm of statutory interpretation and in this regard cited the cases of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) and Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA). He argued that an interpretation of section 123 (1) (e) of the Urban Councils Act led to the inescapable conclusion that there can be no discharge without approval from the Local Government Board.

Professor Madhuku concluded in the heads of argument by making the observation that without the approval of the Local Government Board, a senior official remains an employee which is consistent with one of the objectives of the Labour Act of protecting employees from unfair dismissal. It was further averred that Applicant was not seeking to undo a dismissal because there was no dismissal yet as this required the approval of the Local Government Board.

Third Respondent’s Submissions

In response, Advocate Zhuwarara stated that as far as the Labour Court was concerned, jurisdiction did not derive from the common law but from statute and that those responsible for drafting legislation had not made the Labour Court a superior court. He added that there is absence of a reservoir of power to issue declaratory orders. He relied on the Lowveld Rhino Trust Case SC 34/20. Advocate Zhuwarara further submitted that the Court’s powers were outlined in section 89 of the Act without a corresponding section similar to section 14 of the High Court Act. He argued that the Court’s jurisdiction is therefore limited to applications which flow from adjudication of a matter where the cause has been brought in terms of section 89.

Advocate Zhuwarara stated that exclusive jurisdiction is one that can be exercised in terms of section 89 (6) of the Act in that this provides that the Court deals with labour matters. He referred the court to paragraphs 26 to 29 of the Third Respondent’s heads of argument. In paragraph 24 of those heads of argument, reference is made to the Cainos Chingombe case (supra) where it was stated that the Labour Court had not been imbued with the power to issue declaratory orders. In paragraph 25, the case of Tinashe Kambarami v 1893 Mthwakazi Restoration Movement Trust & 4 Others SC 66/21 is cited with the decision being that the Labour Court and the Electoral Court shared the same characteristic of being specialized courts which exercise jurisdiction within the confines of the enabling statutes. It was also submitted in paragraph 27 of the heads of argument that the Labour Act had not been amended to clothe the court with the jurisdiction to grant declaratory orders.

Advocate Zhuwarara further submitted that the case relied upon by the Applicant did not support the position that the Labour Court had jurisdiction to issue declaratory orders. It was argued that what Applicant sought to rely on in the TN Harlequin Case (supra) was an obiter statement which should not bind any lower court. It was further argued that Applicant was lawfully dismissed from employment and his dismissal still stood. It was also averred that the relief that Applicant sought was incompetent as he was seeking to impeach the Third Respondent’s decision to dismiss him by way of a declarator. The following was submitted in paragraph 30.2:

“Applicant remains dismissed to this date and cannot ride on the resolution of the Local Government Board that does not even have power to order his reinstatement even after declining his discharge from employment. Applicant is seeking an order for reinstatement from this court through the back door without seeking either a review or an appeal against his dismissal in this court. That is legally untenable and unheard of.”

The last paragraph of the heads of argument has the following submission:

“This follows that if the Labour Act is to prevail, as should happen in the circumstances of this matter where it has been shown that the Urban Councils Act is inconsistent with the Labour Act as regards the dismissal of an employee, the resolution of the Local Government Board which forms the basis of the current application is of no force or effect. In other words, the current application is baseless as it has no legal foundation.”

In response, Professor Madhuku stated that there is a pre-2020 and a post 2020 position in the decisions of the Supreme Court and that the present position is that the Supreme Court has stated that the Labour Court is able to issue declaratory orders. He acknowledged the fact that the Court had brought to the attention of the parties the decision in City of Mutare v Matamisa 1998 (1) ZLR 512 (S) and stated that decision in that case should be followed.

ANALYSIS

In Medicines Control Authority of Zimbabwe v Nathan Toronga and Others SC10/17, GWAUNZA JA ( as she then was) stated as follows:

“Jurisdiction in simple terms can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it. A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter.”

Section 89 gives the Labour Court powers to determine or hear matters provided for in that section. Further, section 3 of the Act confers jurisdiction in the Act on all employees except those it expressly excludes. In City of Gweru v Masinire 2018 (2) ZLR 461 (S), BHUNU JA made the following observations:

“Following the decision in the Matamisa case and a host of others based on the law prior to 2005, the lawmaker in its wisdom amended the law in two fundamental respects under the Labour Amendment Act 2005 as follows:

It made the Labour Act superior to all other enactments inconsistent with it. In other words, it takes precedence and overrides any other subordinate statutes in conflict with it.

The Act now applies to all employees save those it expressly excludes from its ambit.”

It is not in dispute that the current impasse between the Applicant and Third Respondent is employment related. It is a labour issue. The Applicant is covered by section 3 of the Act. There is therefore no doubt that the Applicant is in a position to make an application to this Court in terms of section 89 of the Act. The first issue that arises for determination is whether the Court has jurisdiction to issue a declaratory order as sought by the Applicant.

Professor Madhuku’s argument is that prior to 2020, the Supreme Court rendered judgments to the effect that the Labour Court did not have jurisdiction to issue declaratory orders. He however states that there has been a shift in that position after 2020. He argued that the position taken by the Supreme Court in the TN Harlequin case points to that shift and says that the Court should take inspiration from that judgment and grant the Applicant the prayer he has placed before the Court.  Third Respondent, on the other hand states that the jurisdiction of the Labour Court is found in the requisite statute and without its being amended, there is no indication that the Court can issue declaratory orders. As far as the TN Harlequin case is concerned, the Third Respondent’s attitude is that this was an obiter statement which should not bind any lower court.

It is correct that the Labour Act does not contain a corresponding section as section 14 of the High Court granting the latter court jurisdiction to grant declaratory orders. The question is, should there always be such a corresponding section to a statute to show that a court has powers to issue declaratory orders? I think not. Legislature has crafted laws which pertain to each court taking into account that each court operates at different levels and has different functions. It would be axiomatic to find provisions relating to labour issues contained in the Electoral Act, for example. The Labour Court is a specialized Court and it would not make much sense to have the Court imbued with the general power to issue declaratory orders as in section 14 of the High Court Act. The ‘specialty’ would be lost. I am of the view that the opinion I expressed in Mary Mukonyora and Anor v Minister of Public Service, Labour and Social Welfare is worth repeating. It was as follows:

“On the other hand, would it be proper to infer such jurisdiction on the part of the Court in the circumstances? In Tapedza & Ors v ZERA & Anor 2020 (1) ZLR 446 (S), HLATSHWAYO JA  (as he then was) stated as follows at 450 B-C:

“To the same effect but put refreshingly differently, in Buchanan & Co v  Babco Ltd (1977) QBD 208 (CA) at 213 LORD DENNING followed the method of interpretation adopted by the European Court of Justice at Luxemburg, thus:

‘They adopt a method which they call in English by strange words- at any rate they were strange to me- the ‘schematic and teleological’ method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit- but not the letter- of the legislation, they solve the problem by looking at the design and purpose of the legislation- at the effect which it was sought to achieve. They then interpret the legislation so as to achieve the desired effect. This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply, what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation? To our eyes-short-sighted by tradition- it is legislation, pure and simple. But to their eyes, it is fulfilling the true role of the courts. They are giving effect to what the legislature intended, or may be presumed to have intended.’”

It is thus my view that there is no need for a ‘special section’ in the Labour Act to deal with the question whether the Court is able to issue declaratory orders. One should go by the design or purpose which lies behind the legislation. I should also add that section 89 (6) provides:

“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 Act clearly precludes other courts from dealing with labour matters at the first instance. Which court should a litigant approach for a declaratory order at the first instance? This is clearly a rhetorical question.

I now turn the precedent cited by the Applicant in TN Harlequin case. For the sake of clarity I will reproduce the relevant portions of the judgment thus:

“However, in my view, this was an incorrect understanding of the nature of the remedy of a declaratory order. While s 14 of the High Court Act captures this remedy in its broadest and classical form as a ‘gentle order’ which may be issued with or without any consequential relief, there is absolutely no doubt in my mind that the Labour Court in its daily operations does also routinely issue declaratory orders, holding, for example, that an employee has been wrongfully dismissed or certain actions constitute unfair labour practices and then proceeding to grant consequential relief. I make this point to emphasize that even in the absence of the Nhari v Mugabe (supra) matter, the view of this Court would have been to uphold the Labour Court’s exclusive jurisdiction in employment and labour matters.”

A reading of the above passage does not show that it was something mentioned ‘by the way side’ to have it branded as obiter. The raison d’etre of that judgment was obviously a discussion of the exclusive jurisdiction of the Labour Court. It is thus my view that the judgment confirms the position of the Labour Court’s exclusive jurisdiction in labour matters and that in its daily operations, the court issues declaratory orders. Elsewhere in this judgment I stated that Applicant submitted that the application was in terms of section 89 of the Act. I also indicated that section 3 brings the Applicant within the ambit of the Act as an employee. I also stated that this is an employment issue emanating from an employer/employee relationship. I have also related to the decision in the TN Harlequin Case which states that the Labour Court is in a position to issue a declaratory order. I also referred to the  Tapedza case where the court was encouraged to interpret legislation going by the ‘design and purpose which lies behind it’, looking at the ‘effect it was sought to achieve’ and finding ‘ what is the sensible way of dealing with this situation  so as to give effect to the presumed purpose of the legislation’ thus ‘fulfilling the true role of the courts’. Having stated this, I am of firm view that this Court can issue a declaratory order where an employer/employee relationship exists.

I now turn to the merits. In City of Mutare v Matamisa 1998 (1) ZLR 512 (S), GUBBAY CJ went to great lengths to explain the creation and powers of the Local Government Board. At page 517 F-H, the Learned Judge had this to say:

“This summation of the status of the Local Government Board underlines, in my view, the intention of the lawmaker to constitute it as a prestigious and influential body with wide powers; one which effectively was to perform the functions previously assigned to the Minister of Local Government. Thus, whereas under the repealed Act it was sufficient to obtain the approval of the Minister of Local Government for the discharge of any employee of a council, that function in relation to a town clerk or senior official has been taken over by the Local Government Board without any indication in the Act that additional approval of any other Minister or authority is required.

Had the intent been other than not give the final say with respect to the discharge of a town clerk to the Local Government Board, the legislature would have added a proviso to that effect to s 139 (2).”

And at 519 B:

“It is the council which decides to discharge. If the discharge is not approved, the decision the council fails. The discharge by the council is subject to the resolutive power of the Local Government Board”.

The last portion of the judgment answers the averments made in Third Respondent’s Opposing Affidavit. It was averred as follows in paragraph 15:

“In the event that 2nd Respondent does not approve the discharge of a senior council official, such stance does not overturn the decision of the employer to dismiss.”

The statement is clearly not the correct position of the law as stated the Matamisa judgment. That judgment is binding on this Court. It would appear that there is some resistance on the part of the Third Respondent to abide by the decision of the Local Government Board. The Local Government Board is a creature of statute. In IN Re Prosecutor- General of Zimbabwe on His Constitutional Independence and Protection from Direction and Control CCZ 13/17, PATEL JCC had this to say:

“The quintessence of the rule of law is this and simply this, that where there is a law, it must be complied with.”

I now turn to the Order sought by the Applicant. It is my view that the decision in the Matamisa case deals with the first part of the order sought by the Applicant. As simply put by the Learned Judge, a refusal to approve is a failure of a council’s decision. This should be the position at present. The position is as stated in the precedent and there is no need for this Court restate such a legal position. It is my view that the second leg of the prayer can be granted by this Court.

In the result, the Court makes the following Order:

The application is hereby granted.

The legal consequence of the decision of the Local Government Board communicated by letter dated 2 July, 2024 not to approve the dismissal of the Applicant from his position as Director of Engineering Services for the Third Respondent is that the Applicant remains an employee of the Third Respondent.

Third Respondent to meet Applicant’s costs.

Lovemore Madhuku Lawyers-			Applicant’s legal practitioners

Civil Division of the Attorney General’s Office-	Second Respondents’ legal practitioners

Mawadze and Mujaya Legal Practitioners-		Third Respondent’s legal practitioners