ZIMPAPERS GROUP OF COMPANIES

T/A THE CHRONICLE NEWSPAPERS

VERSUS

MILIDZI KHUPHE

AND

THE HONOURABLE M. MOYO-MATSHANGA

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 1 NOVEMBER 2013 AND 23 JANUARY 2014

J. Sibandafor the applicant

M Ncubefor the respondent

Opposed matter

MOYO J:       This is an application for review of the Labour Court’s decision.  The grounds for review are that:

a)         there was a gross irregularity in the proceedings in that the court entertained the matter when it had not been properly set down in terms of the law.

b)         that the court issued an order that was actually different from the original order sought, which order could only have been granted had new proceedings been instituted.  The relief sought, although not stated on the face of the application for review as provided for by Rule 257, is stated in the draft order as that the decision of the Labour court of the 21^st of February 2013 be set aside and be declared null and void.

            The judgment subject to review in this application was apparently granted in default.  Applicant alleges that the matter was not properly set down and he was not given notice of the proceedings of the 21^st of February 2013.

            First Respondent’s counsel raised a point in limine to the effect that this matter is not properly before this court as applicant should have made an application for rescission of the judgment in question in terms of Section 92C of the Labour Act [Chapter 20:01] and that section 89 of the Labour Act [Chapter 20:01] excludes the High Court powers of review of matters in the Labour Court.

            Applicant’s counsel contends that the inherent jurisdiction that the High Court has includes the review of matters from the Labour Court.  Section 92C of the Labour Court Act [Chapter 20:01] provides for the rescission or alteration by Labour court of its own decisions.

            In subsection, 1 thereof it provides that:-

“Subject to this section, the Labour court may, on application, rescind or vary any determination or order-

            a)         which it made in the absence of the party against whom it was made, or

b)         which the Labour Court is satisfied is void or was obtained by fraud or

mistake common to the parties, or

            c)         in order to correct any patent error.

            Applicant’s counsel contends that to apply for the rescission or alteration of the judgment at the Labour Court would be to clothe the initial illegal and void decision with legality.  I hold a different view, for the legislature has provided in Section 92C (b) that the Labour Court can rescind or vary any judgment that it is satisfied is void.  The legislature has given the Labour Court the power to revisit all its decisions including the void ones.  The applicant does have a remedy in terms of section 92C of the Labour Act which the legislature has specifically provided for litigants including applicant’s very own circumstances.

            Applicant’s counsel further contends that the High Court with its inherent jurisdiction is armed with the requisite powers to review the decisions of the Labour Court on the grounds that he has given.

 Section 89 (1)(d)(1) of the Labour Act [Chapter 20:01] provides as follows:-

            “The Labour Court shall exercise the following functions:

Exercise the same powers of review as would be exercisable by the High Court in respect of Labour matters.”

 Section 89(6) of the Labour Act [Chapter 20:01] provides as follows:-

“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).

            Section 26 of the High Court Act [Chapter 7:06] provides that:-

“Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

            Section 27(1)(a) of the High Court Act [Chapter 7:06] provides that:-

            “Subject to this Act and any other law, the grounds on which any proceedings or decisions may be brought on review before the High Court shall be absence of jurisdiction on the part of the court, tribunal authority concerned.

            Section 89 of the Labour Act [Chapter 20:01] clearly gives the Labour Court review powers and it takes away from any other court, the powers to determine or hear matters provided for in that section, powers of review being one of them.  On the other hand Section 26 of the High Court Act [Chapter 7:06] also subjects the High Court powers of review to the provisions of any other law, meaning if another law already provides otherwise, the High Court would not be in a position to exercise the same powers.

            Section 26 also gives the High Court the power to review the decision of all inferior courts.   I am in agreement with the findings in the following cases; Samudzimu v Dairboard Holdings HH 204/10 per CHIWESHE JP where he found that the provisions of the Labour Act [Chapter 20:01] excluded the jurisdiction of the High Court in areas where the Labour Court has jurisdiction.

            In the case of Tuso v City of Harare, HH 1/04, BHUNU J had occasion to consider the legal import of Section 89(6) of the Labour Act and he held the view that the High Court could not exercise the powers given to the Labour Court in terms of section 89.

            In the case of Gwindingwi and another HH168/11 MATHONSI J, alluded to the effect of section 89(6) and he stated that section 89(6) is clear and unambiguous that “no court has jurisdiction over matters falling under the purview of the Labour Court.  He further went on to state that the High Court does not possess the machinery to jealously guard its inherent jurisdiction where the legislature has specifically taken it away.  I can not agree more with this view.  In the case of Medical Investments Ltd v Pedzisayi HH 26/10, MAKARAU JP (as she then was), found that the effect of section 89(6) of the Labour Act [Chapter 20:01] is that the Labour Court has jurisdiction in all matters where the cause of action and the remedy are provided for in the Labour Act.  It is my considered view that Applicant should have proceeded either in terms of Section 92C or Section 89(1) (d) (1) of the Labour Act [Chapter 20:01] and not to approach this court with a matter that the Labour Court could clearly handle yet Section 89(6) has stripped this court of its review powers in so far as all the matters provided for by Section 89 of the Labour Act [Chapter 20:01] are concerned. I accordingly dismiss the application with costs.

Job Sibanda and Associates, applicant’s legal practitioners

Messrs Phulu and Ncube,1^st respondent’s legal practitioners