Judgment No. SC 109/04

Civil Appeal No. 101/04

DAVID MABUWA v CIRCLE CEMENT LIMITED

SUPREME COURT OF ZIMBABWE

SANDURA JA, ZIYAMBI JA & GWAUNZA  JA

HARARE, SEPTEMBER 14 &

The appellant in person

G V Mamvura, for the respondent

ZIYAMBI JA: This is an appeal against a decision of the Labour Court.

The appellant, who was employed by the respondent as a credit administrator, was on 23 November 1998 suspended on full pay and benefits from his employment. The purpose of the suspension was stated to be to facilitate investigations into acts of misconduct. The letter of suspension was silent on the duration of the suspension.

On 18 December 1998 the respondent referred the matter to a labour relations officer in terms of s 101(6) of the Labour Relations Act [Chapter 28:01] (“the Act”). The appellant, through his then legal practitioners, objected to the referral on the basis that the registered Code of Conduct (“the Code”) provided for the handling of disciplinary matters and that recourse to the labour relations officer should only be had after exhaustion by the parties of all the internal procedures.

The respondent agreed with the appellant’s legal practitioner and thereafter the appellant was, in terms of the Code, charged with, and found guilty on, eight counts of misconduct. He was dismissed on the recommendations of the Hearing Committee. An appeal was lodged with the Grievance and Disciplinary Committee, which heard the matter on 10 September 1999 and confirmed the appellant’s dismissal. No appeal was lodged with the Labour Relations Tribunal despite the fact that the appellant was advised of his rights of appeal.

Meanwhile, in June 2000, the appellant and two other employees were, on the basis of the earlier referral, invited to appear before the labour relations officer. The respondent did not attend the hearing, having received no notification thereof. The labour relations officer ruled in favour of the appellant and ordered his reinstatement. The respondent appealed to the senior labour relations officer, who referred the matter to another labour relations officer for hearing afresh. The labour relations officer ruled that, since the parties had by mutual agreement proceeded in terms of the Code, he had no jurisdiction to intervene in the matter.

Once again an appeal was lodged with the senior labour relations officer who set aside the determination of the labour relations officer.

The matter was taken on appeal to the Labour Court which set aside the determination of the senior labour relations officer, being of the view that the labour relations officer was correct in holding that he had no jurisdiction to entertain the matter by virtue of its having been concluded in terms of a registered Code of Conduct.

Before us, the appellant raised the point, in limine, that in terms of s 97(3) of the Act, as amended, and as read with s 47(5) of the Labour Relations Amendment Act 2002, No. 17 of 2002 (“the Amendment Act”), the respondent ought first to have complied with the determination of the senior labour relations officer before the court a quo could determine the appeal.

This point was first raised by the appellant’s legal practitioner at the conclusion of his submissions before the Labour Court. He then stated that:

“… for the sake of progress he had merely chosen to raise the point in order for the court to take note of the legal position.” (record p 10).

The point was noted by the Court, but not considered relevant for the determination of the appeal before it since when the appeal was noted the Amendment Act had not yet been brought into effect.

It is apparent from the record that the appeal to the Tribunal was noted by the respondent on 29 January 2002. At that time the law in force, namely s 97(3) of the Act, provided that:

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

The Amendment Act came into effect on 7 March 2003. Section 97(3) of the Act was amended to read:

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

The general rule to be applied in a case such as this is that a statute regulates future conduct. See Minister of Interior v Confidence Property Trust (Pty) Ltd and Ors 1956 (2) SA 365, where CENTLIVRES CJ at pp 372H-373A stated the position thus:

“Counsel for the appellant also contended that the land had become forfeited to the State in terms of the Group Areas Act. Reliance was placed on secs 8, 18 and 19 of that Act. I am strongly inclined to the view that in interpreting those sections the general rule must be applied viz: a statute regulates future conduct and must be construed, unless there is a clear indication to the contrary, as operating only on cases or facts which came into existence after the Statute came into operation. Nova constitutio futuris formam imponere debet non praeteritis (meaning a new law ought to make provision for the future, not the past).”

See also Nkomo and Anor v Attorney General and Ors 1993 (2) ZLR 422 (SC) at pp 428H-429C of the report where GUBBAY CJ remarked:

“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 any way 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 1148 F-G; Pretorius v Minister of Defence 1980 ZLR 395 (A) at 401 F-G, 1981 (1) SA 1174 (ZA) at 1177H; 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 470 F-G.”

Subsection (3) of s 17 of the Interpretation Act [Chapter 1] provides:

“(3) Where an enactment repeals and re-enacts, with or without modification, any provision of any other enactment, all proceedings commenced under any provision so repealed shall be continued under and in conformity with the provision so repealed”.

Thus, in the present case, the proceedings having commenced before the Amendment Act became operative, s 97(3) of the Act, as amended, did not apply and the respondent was under no obligation to comply with the ruling of the senior labour relations officer pending the determination of the appeal.

The transitional provision introduced by s 47(5) of the Amendment Act, which reads:

“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.”,

was enacted for administrative reasons and not intended to affect existing rights. Had the legislature intended otherwise, this would have been made clear by the enactment of specific provisions in the body of the Amendment Act as opposed to a transitional provision of an administrative character.

Accordingly this ground of appeal fails.

The second ground of appeal was that the Labour Court misdirected itself at law by holding that the procedure adopted in dismissing the appellant was proper in the circumstances.

This ground of appeal strikes me as odd since it is the appellant, through his legal practitioners, who suggested, correctly in my view, that the proceedings be conducted in terms of the applicable Code of Conduct. This being so, it is difficult to understand the cause for the appellant’s complaint.

The final ground of appeal, namely, that there was no agreement that the matter should proceed in terms of the Code of Conduct, raises no question of law and is not properly before this Court.

In the result the appeal is without merit and it is dismissed with costs.

SANDURA JA: I agree.

GWAUNZA  JA: I agree.

Scanlen & Holderness, respondent's legal practitioners