No. SC 21/06
Civil Application No.
AFRICAN AGENCIES (PRIVATE) LIMITED
(3) E ADAM
& SONS (PRIVATE) LIMITED
(4) MAC ADAMS
FAST FOODS (PRIVATE) LIMITED
AND EIGHTY-EIGHT OTHERS
SUPREME COURT OF
HARARE, MAY 24 &
JUNE 28, 2006
G G Chikumbirike,
for the applicants
S Mushonga, for
CHEDA JA, In Chambers, in terms of r 20(5) of the Supreme Court
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
together with a notice of removal. The deponent says he consulted
his legal practitioner, who then instructed him to note
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 judges 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
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
invoked to correct a wrong assumption by a court that it has
jurisdiction to determine a matter. Rule 449(1) is not
in relation to the subject matter requiring correction.
As long as there is an issue, which the court has dealt with, which
certain facts or provisions of the law had been brought to its
attention, it would have dealt with differently, rule 449(1)
applicable. In this regard the provisions of section 8 of the
Labour Act (17/2002) ousts the jurisdiction of the High Court
subject matter before the High Court (Case No. 1000/2003) the
provision has retrospective effect. Its provisions were not
to the attention of the High Court on the 19th of March
2003 when it deliberated on it, (understandably) because it had only
been operational from the 7th 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 litigants
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
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
(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 response from the applicants legal practitioners was most
astonishing. Firstly, the legal practitioner denied that he
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
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
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
correction or amendment, the notice of appeal is obviously defective.
Section 89(6) of
the Labour Relations Amendment Act 17/2002 (the Act) provides
(6) No court, other than the Labour Court, shall have
jurisdiction in the first instance to hear and determine any
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
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.
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
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.
submitted that the issue of the amendment provisions being
retrospective needed to be argued on appeal. I do not
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
This decision was in
line with the Supreme Courts 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.
where it is expressly retrospective, or deals with past events, or
concerns a matter of procedure, practice or evidence.
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
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
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
Associates, applicants' legal practitioners
Associates, respondents' legal practitioners