DISTRIBUTABLE (78)

Judgment No SC 86/04

Civil Appeal No 299/03

BARCLAYS BANK v TICHAWANA NYAHUMA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA & GWAUNZA JA

HARARE SEPTEMBER 27 & NOVEMBER 1, 2004

G. Mamvura, for the appellant

R.T. Maganga, for the respondent

CHIDYAUSIKU CJ: The facts of this case, which are set out in both counsel’s heads of argument, are common cause. The respondent was employed by the appellant. He was a chief cashier. The appellant brought charges of misconduct against the respondent in terms of its registered code of conduct. The hearing committee found the respondent guilty and dismissed him from employment.

He appealed to the Grievance and Disciplinary Committee in terms of the registered code of conduct. The Grievance and Disciplinary Committee dismissed the respondent’s appeal. The respondent further appealed to the Appeals Board at the National Employment Council. The Appeals Board allowed the appeal and ordered the reinstatement of the respondent. The appeal was allowed on the basis that the appellant had failed to adhere to the time limits as set out in its registered code of conduct in dealing with the matter.

On 19 September 2001 the appellant noted an appeal to the then Labour Relations Tribunal (now the Labour Court) against the decision of the Appeals Board. The appeal is yet to be heard.

While the appeal was pending before the Labour Court, the Labour Relations Act [Chapter 28:01] (the Act) was amended by the Labour Relations Amendment Act No 17 of 2002 (the amendment). The appeal was set down for hearing at the Labour Court on 17 September 2003. The Labour Court ordered that before the appeal could be heard the appellant had to comply with section 97(3) of the Act as amended, that is, reinstate the respondent to his position of employment. The appellant now appeals against that order of the Labour Court.

As I have already stated the appellant noted its appeal on 19 September 2001 and the law, as it stood on that day, was that the noting of an appeal would suspend the determination of the decision appealed against. In this case the respondent remained on suspension pending the hearing of the appeal. As of that date section 97(3) of the Act provided as follows:-

“3. An appeal in terms of subsection (1) shall have the effect of suspending the determination or decision appealed against.”

However, on 7 March 2003 section 97(3) was amended by way of a repeal and the substitution of a new section. The new section provided that the noting of an appeal did not have the effect of suspending the determination or decision appealed against. The amended section 97(3) provides as follows:-

“97 (3) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.”

Thus the law that prevailed at the time of the noting of the appeal was reversed by the amendment before the appeal was heard.

The issue for determination by this Court is whether the President of the Labour Court was correct in holding that the appellant was required to comply with the amended Act before its appeal could be heard when the appellant had noted its appeal prior to the coming into operation of the amendment. In coming to this conclusion the learned President of the Labour Court relied on section 47 of the Amendment. Section 47(5) provides as follows:-

“47 (1) …

2. Any proceedings that were commenced in terms of Part XII of the principal Act before the date of commencement of the Labour Relations Amendment Act, 2002, or were pending before the Labour Relations Tribunal on that date, shall be deemed to have been commenced in terms of the appropriate provisions of the principal Act as amended by the Labour Relations Amendment Act, 2002, and shall be proceeded with accordingly.”

Mr Mamvura for the appellant submitted that the rights of the appellant in this matter accrued on the date that it noted its appeal namely, the 19^th September 2001, and those rights are not affected by the amendment that came into effect on 7 March 2003. He submitted that the appellant’s accrued rights are not affected by section 47 of the amendment. He further submitted that there is a general presumption against retrospectivity and the taking away of vested rights. In support of his submission he referred the court to section 17(1)(b) and (c) of the Interpretation Act [Chapter 1:01] which codifies the presumption against retrospectivity or the taking away of vested rights. Section 17(1)(b) and (c) provides as follows:-

“17. Effect of repeal of enactment

1. Where an enactment repeals another enactment, the repeal shall

not –

2. affect the previous operation of any enactment repealed or anything duly done or suffered under the enactment so repealed; or

3. affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed.”

He went on to argue that on 19 September 2001 when the appeal was noted the decision of the Appeals Board was suspended and the appellant was not obliged to reinstate the respondent. As at 7 March 2003 when the law was changed the appellant had a vested right given to it by section 97(3) of the Act, before the amendment, not to reinstate the respondent pending the determination of the appeal. Mr Mamvura argued that there was nothing in section 47 of the Amendment which takes away that right. He further cited a number of authorities that, in his submission, fortify his contention that statutes are not retrospective in effect unless the words of the Act itself explicitly say so. He cited the case of Nkomo and Another v Attorney-General and Others 1993 (2) ZLR 422 (S) wherein GUBBAY CJ, speaking for the majority of the court, had this to say at p 428H – 429C:-

“It is a cardinal rule in our law, dating probably from codex 1:14:7, that there is a strong presumption against a retrospective construction. See Agere v Nyambuya 1985 (2) ZLR 336 (S) at 338G-339G. Even where a statutory provision is expressly stated to be retrospective in its operation, it is not to be treated as in anyway affecting acts and transactions which have already been completed, or which stand to be completed shortly, or in respect of which action is pending or has been instituted but not yet decided, unless such a construction appears clearly from the language used or arises by necessary implication. See Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A) at 684 E-F; Bellairs v Hodnett and Anor 1978 (1) SA 1109 (A) at 1148F-G; Pretorius v Minister of Defence 1980 ZLR 395 (A) at 401 F-G;… Adampol (Pty) Ltd v Administrator Transvaal 1989 (3) SA 800 (A) at 805F – 806D. Care must always be taken to ensure that the retrospectivity is confined to the exact extent which the section of the Act provides. See Attwood v Minister of Justice and Anor 1960 (4) SA 911 (T) at 914F; Lentell v Registrar-General and Anor (2) 1979 RLR 465 (A) at 470F-G.”

All the cases referred to by GUBBAY CJ in the above citation strongly underpin the presumption against retrospectivity of statutes.

Mr Maganga, for the respondent, did not dispute the existence of the presumption against retrospectivity of statutes. He, however, argued that where the amending statute expressly provides for retrospectivity then the presumption is rebutted. I accept that this submission is correct. The clear and unambiguous wording of a statute can rebut the presumption against retrospectivity. Nkomo’s case, supra, is authority for that proposition.

Turning to the facts of this case I accept Mr Maganga’s submission that section 97(3) as read with section 47(5) of the amendment is retrospective. I, however, do not accept Mr Maganga’s submission that, that retrospectivity takes away the appellant’s right to suspend the respondent which had accrued at the time of the amendment.

In my view a proper reading of the above section reveals that it is only those rights that had not accrued at the time of the amendment that are affected retrospectively. Thus, in casu, it is common cause that the appellant commenced the proceedings against the respondent before the amendment. At that point in time, that is, at the commencement of the proceedings, the appellant acquired the potential right of appeal against any order to reinstate the respondent by any of the adjudicating authorities in the course of the litigation between the parties. That right was potential and only accrued upon the noting of such an appeal. It is the potential right that is affected retrospectively by the amendment and not the right that had then accrued. A careful perusal of section 47, and subsection 5 in particular, reveals that the legislature intended this section to facilitate smooth procedural transition from the Act before the amendment to the amended Act and not to take away vested rights.

There is nothing in the language of the amendment that evinces the law giver’s intention to take away accrued rights such as the appellant’s right to suspend the respondent pending appeal.

The appellant in this case was denied a hearing by the court a quo because it had failed to comply with the provisions of the amendment. In my view this is a misdirection. The appellant had complied with the law as it then was at the time of noting the appeal. To now require the appellant to comply with the law, as subsequently amended, is unjust. This is not a case where a party approaches a court with dirty hands by reason of failure to comply with the law. The appellant complied with the law but the law changed after such compliance. He cannot be said to have approached the court with dirty hands.

It is on this basis that the appeal should be allowed with costs.

Accordingly, the order of the court a quo is set aside and the Labour Court is directed to hear the appeal.

SANDURA JA: I agree

GWAUNZA JA: I agree

Scanlen & Holderness, appellant's legal practitioners

Muzenda & Manganga, respondent's legal practitioners