REPORTABLE (19)

Judgment No. SC 21/06

Civil Application No. 118/06

(1) BELLE’S CREATIONS

(2) CENTRAL AFRICAN AGENCIES (PRIVATE) LIMITED

(3) E     ADAM & SONS (PRIVATE) LIMITED

(4) MAC ADAMS FAST FOODS (PRIVATE) LIMITED

(5) DAFARA v

CLEVER MUTOMBWA AND EIGHTY-EIGHT OTHERS

SUPREME COURT OF ZIMBABWE

HARARE, MAY 24 & JUNE 28, 2006

G G Chikumbirike, for the applicants

S Mushonga, for the respondents

Before: CHEDA JA, In Chambers, in terms of r 20(5) of the Supreme Court Rules

This is an application for leave to note an appeal out of time.

On 2 December 2003 an application was made at the High Court before HLATSHWAYO J by the parties in this case. The parties waited for the determination of this case for two years and three months. Judgment was only delivered on 1 March 2006.

There is no indication whether the judgment was handed down or not. The applicants’ deponent argues that it was not handed down and he only got to know about it on 4 May 2006, when the Deputy Sheriff served him with a notice of seizure and attachment of property together with a notice of removal. The deponent says he consulted his legal practitioner, who then instructed him to note an appeal. He gives the above explanation as the reason for not noting the appeal in time.

One Fambisai Ganda, who deposed to the affidavit on behalf of the respondents, says the learned judge’s clerk telephoned the parties when the judgment became available and the respondents duly attended and uplifted a copy of the judgment.

In the absence of an affidavit from the clerk concerned indicating whether he advised the appellants, it cannot be ascertained if the applicants were advised when the judgment became available or not.

Due to the long delay from the date the application was heard to the date of judgment, I accept that the applicants would not have known that judgment was now available without being so informed.

Even if it is argued that the applicants should have been making follow-ups, one wonders how many times one would keep checking on the judgment over the period of two years and three months, especially if there had been no indication when the judgment was likely to be delivered.

I can only go as far as saying that perhaps regular enquiries concerning the judgment could possibly have moved the court to deliver the judgment within a reasonable period.

Once the applicants became aware of the judgment, although by being served with a notice of seizure on 4 May 2006, the affidavit in support of this application was made on the very following day, that is, 5 May 2006. The notice of appeal was filed on 8 May 2006. I am, therefore, persuaded that the applicants would have noted the appeal on time if the availability of the judgment had come to their notice as soon as it was issued.

I now turn to the prospects of success if the application is granted.

The grounds of appeal were stated as follows in the notice of appeal:

“1. The learned Judge erred at law in dismissing the application on the basis that rule 449(1) of the High Court Rules cannot be invoked to correct a wrong assumption by a court that it has jurisdiction to determine a matter. Rule 449(1) is not restrictive in relation to the subject matter requiring correction. As long as there is an issue, which the court has dealt with, which if certain facts or provisions of the law had been brought to its attention, it would have dealt with differently, rule 449(1) is applicable. In this regard the provisions of section 8 of the Labour Act (17/2002) ousts the jurisdiction of the High Court in the subject matter before the High Court (Case No. 1000/2003) the provision has retrospective effect. Its provisions were not brought to the attention of the High Court on the 19^th of March 2003 when it deliberated on it, (understandably) because it had only been operational from the 7^th of March 2003. This was therefore a matter which required correction once the statutory provision was brought to its attention.

2. The learned Judge further erred in stating that once a court has jurisdiction at the time proceedings are instituted, then jurisdiction endured until the end of proceedings, in this context, the application before it. Whilst that might be applicable in terms of common law, that position does not apply in this law of explicit and unequivocal provision to the contrary. Section 8 of the Labour Act has retrospective effect thus barring the High Court from entertaining a matter which, even if it had jurisdiction at the inception of proceedings, it no longer had at the time of determining it by virtue of the intervention of statutory provisions.

3. The learned Judge erred into (sic) not giving any reasons or authority for the findings he made that the learned Judge was to express a contrary view to that urged upon him by the applicants (appellants) and no more. A court when dismissing or upholding a litigant’s contention must give full reasons for any position it states.”

I responded by a minute which had the following comment:

“It is the responsibility of the applicant in such a situation to formulate his application clearly and accurately.

The reference to section 8 of Act 17/2002 is useless and irrelevant to the issue raised. The relevant section seems to be section 89(6) which should be read with section 47(5).

The judgment referenced 1000/03 is not attached and I cannot guess what it was about in order to consider the issue raised against which the decision was made as this is relevant to the merits to be considered.

The order sought is therefore declined.”

Section 8 of Act 17/2002 reads as follows:

“8 Amendment of section 8 of Cap. 28:01

Section 8 of the Principal Act is amended –

(a) by the insertion after ‘An employer’ of ‘or, for the purposes of paragraphs (g) and (h), an employer or any other person’;

(b) in paragraph (f) by the deletion of ‘certified’ and the substitution of ‘registered’;

(c) by the insertion of the following paragraphs after paragraph (f) –

(g) demands from any employee or prospective employee any sexual favour as a condition of –

(i) the recruitment for employment; or

(ii) the creation, classification or abolition of jobs or posts; or

(iii) the improvement of the remuneration or other conditions of employment of the employee; or

(iv) the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or

(v) the provision or facilities related to or connected with employment; or

(h) engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.”

The response from the applicants’ legal practitioners was most astonishing. Firstly, the legal practitioner denied that he made any reference to s 8 of Act 17/2002 in his notice of appeal. Next, he argued that he did not agree that attachment of the earlier judgment which is not subject to the appeal being sought was necessary in terms of the Rules or that its absence was fatal to the application. He insisted that “the registrar shall give notice of the date of hearing to the parties”. Other remarks from the legal practitioner in the same letter were uncalled for and displayed unwarranted arrogance which I found to be most objectionable.

Once the date of hearing was given, the legal practitioner appeared to argue the application with no heads of argument. Even at the hearing of the application, he continued to argue that he had never referred to s 8 until his papers were read to him. It was only then that an application for amendment of the grounds of appeal was made. The application was opposed.

On the merits, the appeal is based on the argument that the amendment in s 8 of Act 17 of 2002 ousted the jurisdiction of the High Court which made an order against the applicants. This argument arose from the fact that the judgment of HLATSHWAYO J, which the parties waited for, for a period of more than two years, had dismissed an application in which that court was being asked to rescind the judgment of the High Court granted on 19 March 2003 in case no. HC 1000/03.

As has been pointed out, s 8 of the Act, as it stood, had nothing to do with the intended appeal.

Without any correction or amendment, the notice of appeal is obviously defective.

Section 89(6) of the Labour Relations Amendment Act 17/2002 (“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).”

The above amendment came into effect on 7 March 2003.

The Act provided for savings and transitional provisions as follows in s 47 subs (5):

“(5) 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.”

It is clear that the legislature was alive to the fact that there could be cases that were in process at the time, and the provision was to ensure that such cases “shall be proceeded with accordingly” without being affected by the amendment.

Even if the notice of appeal was amended to reflect the above, the provision referred to cases before the Labour Relations Tribunal. It does not in any way refer to cases that were already before the High Court.

The applicants submitted that the provisions of s 89(6) are retrospective and that, once they came into effect, the High Court should not have made the order it made even if it had jurisdiction when the matter was started.

The dispute in this matter started long before the Amendment Act came into effect (see case no. HC 6242/02, wherein a warrant of execution was issued and a notice of removal of the applicants’ property was served). This shows that the High Court was already dealing with the matter and had granted a warrant of execution. The respondents already had vested rights in the matter before the amendment. To suggest that the amendment ousted the jurisdiction of the High Court in such a matter cannot be correct.

The applicants submitted that the issue of the amendment provisions being retrospective needed to be argued on appeal. I do not agree.

The same issue was argued before the Supreme Court in Nkomo & Anor v Attorney-General and Ors 1993 (2) ZLR 422 (S), wherein the applicants raised the same issue before the Supreme Court sitting as a Constitutional Court. The facts of that matter appear from the chronology of that case given by GUBBAY CJ. The Supreme Court held that the effect of the amendment in s 15(5) of Amendment Act No. 13 of 1993 was prospective and therefore the rights of the applicants were preserved.

This decision was in line with the Supreme Court’s ruling in the previous case of Agere v Nyambuya 1985 (2) ZLR 336 (S), where it held that:

“It is a fundamental rule of construction in our law, dating probably from Codex 1:14:7, that there is a strong presumption that retrospective operation is not to be given to any enactment so as to remove or in any way impair existing rights or obligations unless such a construction appears clearly from the language used or arises by necessary implication. For instance, where it is expressly retrospective, or deals with past events, or concerns a matter of procedure, practice or evidence. The supposition is that the Legislature intends to deal only with future events and circumstances.”

The Supreme Court also quoted with approval what INNES CJ said in Curtis v Johannesburg Municipality 1906 TS 308, namely:

“That general rule is that, in the absence of express provisions to the contrary, statutes should be considered as affecting future matters only; and more especially that they should if possible be so interpreted as not to take away rights actually vested at the time of their promulgation.”

More recently, the same issue was dealt with by CHIDYAUSIKU CJ in Barclays Bank v Tichawana Nyahuma SC-86-04 and in Net-One Cellular (Pvt) Ltd v Net-One Employees and Anor SC-40-05. In the above two cases the principle of not depriving a party of existing rights by subsequent legislation was upheld.

It is therefore clear that the issue that the applicants want to argue in the intended appeal has been argued before in both the Zimbabwean and South African Courts and settled.

There are therefore no prospects of the issue being determined differently as Mr Chikumbirike has submitted.

Accordingly, leave to file an appeal out of time is refused. The application is dismissed with costs.

Chikumbirike & Associates, applicants' legal practitioners

Mushonga & Associates, respondents' legal practitioners