Judicial Review

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Grounds for review

 

In Zimbabwean law, the High Court is vested with the power to review the proceedings of all administrative tribunals, both statutory and domestic. The two main grounds upon which the High Court can interfere on review with an administrative tribunal’s proceedings are, firstly, that the administrative tribunal has acted beyond the powers allocated to it (ultra vires) and, secondly, that it did not comply with the principles of natural justice. The power of the High Court to review the proceedings of all administrative tribunals was recognized under common law. This power of review is now also laid down in statutory form in s 26 of the High Court of Zimbabwe Act [Chapter 7:06]. The grounds upon which the proceedings can be reviewed are contained in s 27. This section reads–

 

27.(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) gross irregularity in the proceedings or the decision.

      (2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.

 

The High Court’s powers of review are discussed in Fikilini v Attorney-General 1990 (1) ZLR 105 (S).

 

In the case of Secretary for Transport & Anor v Makwavarara 1991(1) ZLR 18 (S), the court said that administrative action is subject to control by judicial review under three heads–

 

  • Illegality, that is where the decision-making authority has been guilty of an error in law;
  • Irrationality, where the decision-making authority has arrived at a decision “so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it”;
  • The duty to act fairly.

 

In the case of Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S), the Supreme Court spelled out in more detail the review powers of courts of law. The court said that the role of the court in reviewing administrative decisions is to act as an umpire to ensure fairness and transparency. The court’s duty is not to usurp the administrative authority’s functions. If the administrative authority has acted fairly and transparently, the court will not interfere with its decision simply because it does not approve of the conclusion reached. Transparency connotes openness, frankness, honesty and absence of bias, collusion, favouritism, bribery, corruption or underhand dealings and considerations of any sort.

 

The courts will expect an administrative body to make a decision that is–

 

  • Legal, that is the decision must be within the framework of the empowering law and after applying the criteria laid down in the empowering law;
  • Rational, that is the decision must not so wrong that it must have been reached, deliberately or inadvertently, by failing to apply the right criteria or by applying the wrong criteria;
  • Procedurally proper, that is in making the decision the appropriate procedures required by statute must have been followed and the principles of natural justice must have been observed;
  • Justifiable, that is the decision will be given with reasons, at least when challenged, so that the court can determine the propriety and reviewability of its decision.

 

In Tsvangirai & Anor v Registrar-General & Ors 2002 (1) ZLR 251 (H) the High Court stated that a court has no general jurisdiction to intervene in administrative decisions or to direct administrative authorities on how they should act. The discretion bestowed on an administrative authority cannot be interfered with in the absence of illegality, irrationality or procedural impropriety. That the discretion of the Registrar-General should not be lightly interfered with is also clear from the provisions of the Electoral Act itself, the intention of which was to create some degree of independence on the part of the Registrar-General except where given instructions by the Election Directorate. Voting in the Presidential, council and mayoral elections in Harare and Chitungwiza had been extended for a third day. The applicants were dissatisfied with the way in which the voting had been conducted on the third day and sought an order compelling the Registrar-General to extend the voting in the Presidential election to a fourth day. The application was dismissed with costs.

 

In Mugugu v Police Service Commission & Anor HH-157-10 a police officer had been convicted of a disciplinary offence and had been punished. The court stated that judicial review is a process which is concerned with the examination and supervision by the courts of the manner in which administrative bodies have observed their obligations when related to the legislative requirements. The power to review is inherent in courts of superior jurisdiction, but such power is limited to the legality of the administrative action or decision. The Commissioner’s power to convene the board was undisputed and the board itself was, in terms of s 50 of the Police Act [Chapter 11:10],granted the discretion to either find that a member is no longer fit to remain in the force or to reduce his rank. For the court to venture into the merits of the punishment imposed or the wisdom of the decision, without being empowered by the Act, would be tantamount to the court usurping the authority that has been entrusted to the administrative body by the Act. The purpose of the review process is to ensure that an individual receives fair treatment at the hands of the authority to which he has been subjected. It is not within the ambit of the reviewing court’s power to substitute its own opinion for that of the administrative body. The function of the court is to ensure that the administrative body does not abuse the lawful authority entrusted to it, by treating the individual subjected to it under that lawful authority unfairly. If the circumstances show that the decision was reached fairly and in a reasonable manner, then the court would not have the power to intervene.

 

In Decimal Invstms (Pvt) Ltd v Arundel Village (Pvt) Ltd & Anor HH-262-12 the court pointed out that in an administrative matter the court does not exercise an appeal power and cannot either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. In this case, the arbitrator made an award which took into account the perceptions of the market at the time and the ability of other tenants to pay. It could not be said that such an award resulted in the concept of justice in this country being “intolerably hurt”.

 

 

Powers of High Court

 

The High Court may either set aside or correct the proceedings. See s 28 of the High Court Act.

See also Fikilini v Attorney-General 1990 (1) ZLR 105 (S); Secretary for Transport & Anor v Makwavarara 1991 (1) ZLR 18 (S) and Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S).

 

Differences between review and appeal

 

The remedy of review must not be confused with that of appeal. The main difference between these two remedies is that in an appeal what is in question is the substantive correctness of the original decision whereas on review the High Court is not delving into the substantive correctness of the decision, but is only determining whether there were any reviewable procedural irregularities or any action which was reviewable because it was ultra vires the powers allocated to the tribunal, see Tselentis v Salisbury City Council 1965 (4) SA 61 (SRA).

 

Further differences between the two remedies are–

 

  • For a review no written record of the original case is required whereas an appeal is based on the record of the original case.
  • Locus standi for review is on fairly wide grounds whereas locus standi for an appeal is confined to the parties to the original case. (Locus standi is the right to bring an action or to challenge some decision.)
  • A review can be brought even before the proceedings have been completed whereas an appeal can only be brought after the original case has been finalised, but see Manduna & Ors v Banditi & Ors (1985).
  • The time period within which a review case must be initiated is longer than that laid down for the noting of an appeal, see Nyamukapa v Minister of Local Government & Town Planning HH-363-85.
  • A review is brought by application procedure whereas the procedure for bringing an appeal is set out in the rules of court. As regards appeals against the decisions of administrative tribunals the statute or contract may provide for a right of appeal to a higher administrative tribunal. Occasionally, a right of appeal to a court of law may be provided for, see Lowenthal v Liquor Licensing Board 1956 (1) SA 227 (SR) and Divaris v Liquor Licensing Board 1956 (3) SA 462 (SR).

 

Procedure for bringing review

 

Order 33 of the High Court Rules (1971) sets out the procedures for bringing cases on review to the High Court.

 

Except where a law otherwise provides, the procedure for bringing under review the decision or proceedings of any tribunal, board or officer performing quasi-judicial or administrative functions is by way of court application.

 

Rule 257 lays down that the application for review must state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief being sought. In Chataira v ZESA 2001(1) ZLR 30 (H) at p 34G the High Court pointed out that in a number of cases the court clearly stated that the failure to comply with this Rule constituted a fatal flaw. It referred to Minister of Labour v PEN Transport S-45-89, Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H) and Chairman, PSC & Anor v Marumahoko 1992 (1) ZLR 304 (S) It went on to say that despite these warnings, legal practitioners continue to fail to comply with the Rule. The court said that the time had come to dismiss defective applications without considering the merits.

 

The applicant must establish his or her cause of action in his or her founding affidavit.

 

The application must be directed and delivered to the presiding officer or chairman of the tribunal or board or the administrative official.

 

Review proceedings must be instituted within eight weeks of the termination of the proceedings in which the irregularity or illegality complained of is alleged to have occurred. See Nyamukapa v Minister of Local Govt & Town Planning HH-363-85. In Gula Ndebele v Bhunu NO 2010 (1) ZLR 78 (H) at 82B the judge reiterated that the application must be filed within eight weeks of the decision being impugned. Under the rules this period includes the last day when the event occurred and excludes the last day. Thus the eight week period is reckoned from the date when the applicant was notified of the fact that the proceedings against him or her had been terminated.

 

However, the court may extend the time if good cause is shown for so doing. For the factors that the court will take into account in deciding whether to allow a late application for review, see Bishi v Secretary for Education 1989 (2) ZLR 240 (H).

 

Within twelve court days of service of the application for review the tribunal, board or officer must lodge with the registrar of the High Court the original record of the proceedings, together with two typed copies of this record. (The charges incurred in obtaining copies of the record form part of the costs of review.)

 

In the case of Chiura v Public Service Commission & Anor 2002 (2) ZLR 562 (H) the court indicated that the rules of court require that a record of proceedings must be prepared by the officer responsible for those proceedings and must be lodged with the registrar. What was tendered as the record of proceedings could not be described as a record of proceedings. Failure to supply the record of proceedings amounts to an irregularity.

In the case of Olivine Industries (Pvt) Ltd v Gwekwerere 2005 (2) ZLR 421 (H)the Supreme Court held that in a case involving the review of a decision to sack an employee, the Supreme Court held that the employer had failed to comply with rule 260 of the High Court Rules, requiring the lodging with the Registrar of the original record, and had submitted only a partial record, it was open to the judge to direct that the full record be made available, in the meantime postponing the hearing of the matter. The respondent would have been within his rights to demand the full record before the matter could be heard. Neither chose to exercise these options, and the court was accordingly not in a position to properly review the decision of the head of department

 

There are, of course, some situations where there is no record or where the review relates to matters not arising from record e.g. financial bias that was not revealed during the hearing but was only discovered after the hearing. This does not stop the case from being taken on review. See Order 33.

Late application for review

 

For the factors that are considered in deciding whether to allow a late application for review see Bishi v Secretary for Education1989 (2) ZLR 240 (H).

 

Can a review be brought before the proceedings are concluded?

 

In Gula-Ndebele v Bhunu NO 2010 (1) ZLR 78 (H) at 83G the judge said–

It appears to me … like the proceedings of any other quasi-judicial body, the proceedings of the tribunal, if tainted by procedural irregularities recognizable at law as vitiating such proceedings, may be set aside before they are concluded and before any recommendation is made.

Reviewability of constitutional officers and bodies that have independent authority

 

The question has arisen as to the exercise of their functions by officers and bodies appointed in terms of the constitution with discretionary powers that are not subject to the direction or control of any other person or authority.

 

In the case of Tsvangirai v Mugabe & Anor 2005 (2) ZLR 398 (H) 406 the Electoral Supervisory Commission argued that the manner it conducts its election supervision could not be questioned in any court of law as in terms of the constitution it was not subject to the control of any person or authority in the exercise of its functions. The court roundly rejected this proposition, ruling that the constitutional device granting of independence to a body or person does not put that body or person above the law; it is still subject to judicial review. The court cannot interfere with how the Electoral Supervisory Commission exercises its duties but it can interfere if the body is not properly constituted, if it acts illegally or it completely fails to exercise its duties.

 

It should be pointed out that this same proposition applies to the body that has replaced the Electoral Supervisory Commission, namely the Zimbabwe Electoral Commission.

In the case of Mudisi & Ors v Tomana & Ors HH-121-12 four law officers and prosecutors were employees of the Public Service Commission. They were assigned to prosecute in the Attorney-General's office.  These persons were executive committee members of Zimbabwe Law Officers' Association. The association organised a strike because of salary grievances. The Attorney-General  wrote to them asking them to respond to charges that they had failed to act with the decorum and integrity expected of public prosecutors. They gave short response to charge but then their lawyers replied saying that the Attorney-General had no legal right to embark on this inquiry. The Attorney-General then assumed that they were pleading guilty to the charge and with immediate effect he withdrew his authority and power for them to prosecute and instructed them to discontinue carrying out their duties as prosecutors.

 

The officers applied to the High Court for a declaratory order contending that the actions of the Attorney-General constituted a breach of the Administrative Justice Act which requires that administrative action be taken in a fair and lawful manner allowing for the affected party to be heard. The Attorney-General opposed the action arguing that in the exercise of his discretionary  powers he cannot be subject to judicial scrutiny. The judge rejected this contention saying that this was an astounding contention. He stated that to hold that the court has no jurisdiction to deal with this  matter would be “to make the Attorney-General’s office a law unto itself, contrary to the fundamental constitutional  principle that no person, however powerful or important, should be above the law.”

 

He pointed out that the Attorney-General has wide discretion and is independent and  not subject to direction over matters of criminal prosecution but once a prosecutor has been appointed the law provides that such a person can only be dismissed lawfully and following due process. The proper procedure would have been to suspend the officers pending an inquiry by the Public Service Commission which could lead either to their discharge from the Public Service Commission or their reinstatement in their former positions.

 

The procedure adopted by the Attorney-General was wrong in that instead of suspending them, the Attorney-General sought to withdraw their authority to prosecute. The Attorney-General had made a material error of law and under the Administrative Justice Act this was a ground for setting aside his action.

 

 

Exhausting internal remedies

 

Often persons aggrieved by administrative decisions are given the right to take an administrative decision on appeal or review to some higher administrative official or body. Where these internal remedies have been established, the question arises as to whether the aggrieved person must first pursue these internal administrative remedies before proceeding to take the matter before a court of law.

 

Section 7 of the Administrative Justice Act gives the High Court a discretion to decline to hear applications made under s 4 of the Act if the applicant has some other remedy available to him or her. Section 7 reads–

 

Without limitation to its discretion, the High Court may decline to entertain an application made under section four, if the applicant is entitled to seek relief under any other law, whether by way of appeal or review or otherwise, and the High Court considers that any such remedy should first be exhausted.

 

Presumably in deciding how to exercise this discretion the High Court will have reference to the case law on this subject prior to the passing of the Administrative Justice Act.

 

It can be argued that if the administrative machinery is working well and effective internal remedies are provided for, the administration is in the best position to rectify its own mistakes and should be given the opportunity to do so. To allow premature access to the courts before the administration has been given the opportunity to rectify the mistakes will undermine the functioning of the administration. Aggrieved persons should only be allowed to approach the courts after exhausting these internal remedies. Additionally requiring that internal remedies be pursued first will avoid inundating the courts with administrative matters which could easily be remedied by the administration itself. (See Yvonne Burns Administrative Law under the 1996 Constitution (2nd ed) pp 290-292) From the standpoint of the aggrieved person, it may well be in his or her best interests that the matter be expeditiously settled by using his domestic remedies rather than referring the matter to court, particularly where the court is simply likely to refer the matter back to the original tribunal for a re-hearing.

 

On the other hand, as Burns points out, where the administrative machinery is not working well the public may mistrust or have little confidence in the administrative structures. Members of the public may believe that the internal remedies will be ineffective as the higher administrative body is likely to rubber stamp the original decision. It can also be argued that a person is entitled to a fair hearing from the first administrative authority dealing with his case. Where he or she did not receive a fair hearing because of glaring procedural irregularities or illegalities he or she should be entitled to have these proceedings set aside on review and he or she has a right to a fresh hearing which is fair. If, for instance, the original decision was arrived at on a fraudulent or corrupt basis or the decision-maker had no legal power to make that decision, it is strongly arguable that the person affected should be able to approach the court to have the original set aside and should not have to pursue his or her internal remedies first.

 

In Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H) the court said that the general view is that a litigant should be discouraged from rushing to court before he or she has exhausted such domestic procedures or remedies as may be available to him or her in the circumstances. He or she is expected to obtain relief through the available domestic channels unless there are good reasons for not doing so. However, the domestic remedies must be able to provide effective redress to the complaint. Furthermore, the alleged unlawfulness complained of must not be such as would have undermined the domestic remedies themselves. The court will not insist on an applicant first exhausting domestic remedies where they do not confer better and cheaper benefits. In the present case the first defendant had avoided or prevented of holding any meetings of the union at which the plaintiff’s grievances might have been heard.

 

In Information Media Invstms (Pvt) Ltd v Min of Information & Anor HH-207-16 the applicant sought to have a technical decision by POTRAZ by the High Court. There was an internal remedy to appeal to Minister against the original decision and thereafter to appeal to the Administrative Court against the Minister's decision. The High Court ruled that the applicant should first have exhausted its domestic remedies. The matter being dealt with was of a specialised technical nature and such matters are best dealt with by the specialised agency set up to deal with such matters and the internal remedies should have been pursued.

In a number of Zimbabwean cases decided prior to the Administrative Justice Act coming into effect, it was held that a court has a discretion as to whether to review the matter before the remedies provided for in the statute have been exhausted. The aggrieved party should, however, normally exhaust those remedies unless there are good reasons or special circumstances for not doing so. If aggrieved persons have available to them effective internal remedies, they should pursue these remedies and not clutter the courts with unnecessary litigation. Additionally the internal remedy may well be more expeditious and more efficacious than the limited remedy provided by judicial review. This same approach is also to be found in cases decided after the coming into effect of the Administrative Justice Act. One such case is that of Olivine Industries (Pvt) Ltd v Gwekwerere 2005 (2) ZLR 421 (H). In this case an employee of the appellant company was the subject of a disciplinary hearing. He refused to attend the hearing on the grounds that he was not allowed to be legally represented and because he considered representation by a member of the workers’ committee was inappropriate. He was found guilty and discharged. After a discouraging letter from his head of department, he did not appeal to the disciplinary committee as provided by the code of conduct. Instead an application for review was brought in the High Court, in which the respondent sought reinstatement. The High Court granted the respondent’s application and the company appealed. The Supreme Court held that the appeal procedure in the appellant’s code of conduct would have allowed both a review and rehearing of the matter at the disciplinary committee stage, an appeal to the head of business and thereafter to the Labour Court. It would thus have afforded the respondent effective redress against what he perceived as an unlawful termination of his employment. The respondent had abandoned his domestic remedies for no valid reason. The High Court should have declined to hear the application.

 

In Djordjevic v Chairman, Practice Control Committee, Medical & Dental Practitioners Council of Zimbabwe 2009 (2) ZLR 221 (H) after some years of provisional registration as a medical practitioner, the applicant applied for an unrestricted practising certificate permitting her to practice as a specialist obstetrician and gynaecologist. The Medical and Dental Practitioners Council refused her application. The applicant sought a declaratory order to the effect that she was entitled to the issue of an unrestricted practicing certificate. She also sought consequential relief that the respondents issue her with such a certificate. The first respondent raised the point in limine that the applicant had not exhausted the domestic remedies available to her before approaching the court. In terms of s 22 of the Health Professions Act [Chapter 27:19], any person who is aggrieved by any decision taken in regard to him by a council may appeal against the decision to the Health Professions Authority within thirty days after being informed of the decision. Section 123 provides for an appeal from the Authority to the High Court.

 

The court held that where domestic remedies are capable of providing effective redress in respect of the complaint, a litigant should exhaust those remedies unless there are good reasons for not doing so. No good reasons were advanced for not pursuing the domestic remedies available to her. While a declaratory order may be granted even if some other form of relief is available, the merits of each case constitute one of the circumstances of the matter to which regard must be paid before a declaratory order is issued. The nature of the relief being sought by the applicant was such that she was asking the court to substitute its own decision for that of the first respondent. A court will not interfere in the sphere of practical administration. There were disputes of fact which the court could not resolve, as they would require the expertise provided for in the Act.

 

What happens when the applicant files an application for review before the High Court and an appeal under the relevant legislation? In the case African Consol Resources plc & Ors v Minister of Mines & Ors HH-57-10 the court ruled that this places the court in competition with the determiner of the domestic remedy. When that happens, the High Court must defer to domestic proceedings, and allow them to be exhausted before it can hear the dispute between the parties. In terms of s 7 of the Administrative Justice Act [Chapter 10:28], the court can decline to hear an application, based on an alleged failure to comply with the provisions of the Act, if it is of the view that the applicant has other legal remedies through which he can obtain the remedy sought before it and it considers that such remedy should first be exhausted. The court can exercise its discretion to hear the matter, but it should not do so in a manner that terminates pending domestic remedies unless there are compelling reasons for it to do so. The intention of the legislature in providing domestic remedies must be respected by the courts, and the officials charged with the authority to determine domestic appeals or reviews must be allowed to do their work before the court intervenes. The court should only intervene in cases where it is obvious that domestic remedies will not do justice in the case before it. This approach is consistent with the principle of judicial deference.

 

There are a number of exceptional situations where an aggrieved person would not be obliged to exhaust his or her internal remedies before approaching the High Court for relief. These are–

  • Where the unlawfulness alleged has undermined or tainted internal remedy e.g. where higher body has already prejudged or prejudiced the hearing or decision. Baxter argues at p 590 that a person is only obliged to appeal first if the appeal body will expunge completely the illegality by thoroughly re-investigating the matter on an impartial basis. The internal remedy may also have been undermined by the way in which the original tribunal had conducted itself.

In Mathale v Secretary for Education, Gazankulu 1986 (4) SA 427 (T) the appellate authority, a Minister, had already condoned the action taken by the first official and thus the appeal to that Minister would be fruitless.

In Lenz Township Co Ltd v Lorenz & Ors 1961 (2) SA 450 (A) the internal appeal body had already prejudged the case.

In Welkom Village Board v Leteno 1958 (1) SA 490 (A) the council engaged in a fraudulent conspiracy to deprive the respondent of his rights and the local authority had associated itself with its actions.

  • The internal remedy must be capable of providing effective redress and must not be not illusory or completely inadequate.

In Moyo v Forestry Commission 1996 (1) ZLR 173 (H) the internal remedies had been undermined by the failure by the first body to hold an inquiry as required and to keep a record of the inquiry proceedings. The appeal panel was not empowered to hear the matter de novo and to hear evidence afresh. It was confined to a consideration of record of the proceedings. As there had been no initial inquiry and no record, the internal appeal was completely ineffective.

In Mahlaela v De Beer NO 1986 (4) SA 782 (T) a township superintendent decided not allocate the applicant a house in a township. The court decided that an appeal to the board would be futile as it had a fixed policy that houses were not to be allocated.

In Lawson v Cape Town Municipality 1982 (4) SA 1 (C) the court held that the internal remedy was ineffectual as the administrator was unable to do internal remedy justice because of his other duties.

In Msomi NO & Ors v Abrahams 1981 (2) SA 256 (N) the court held that if the internal remedy cannot provide the same satisfaction as judicial review, this strongly indicates that the internal remedy does not have to be exhausted first.

  • Matter relates to legal capacity, jurisdiction and legality of the action

Here the review court will be inclined to hear the case without obliging the litigant first to exhaust his or her internal remedies. The reason for this is that it will be felt that the court itself is better able to deal with such legal issues.

      In Archipelago (Pvt) Ltd & Anor v Liquor Licensing Board 1986 (1) ZLR 146 (H); 1986 (4) SA 397 (ZH) the court set aside a decision of a licensing board where it purported to exercise a jurisdiction where none existed. It did so even though the litigant had not first exhausted its internal remedies.

 

In the cases of Musandu v Chairperson of Cresta Lodge Disciplinary & Grievance Committee HH-115-94; Zikiti v United Bottlers 1998 (1) ZLR 389 (H) the approach adopted was that the mere fact that the legislature or the contract has provided for an extra-judicial right of review or appeal does not ipso facto preclude the aggrieved party from bringing a case to court on review. In Mabuza v Tjolotjo District Council HB-52-92, the court decided that unless the jurisdiction of the courts is excluded, a suspended employee is entitled to seek redress from the courts and is not obliged to exhaust his internal remedies first.

 

In the case of Ramani v National Social Security Authority S-38-03 the Supreme Court ruled that the High Court has a discretion, to be exercised judicially, whether to exercise its review powers in matters that can be remedied through an appeal or application under the Labour Act. (Since this decision, however, the Labour Act has been amended and s 89(6) of the Labour Act now states that: “No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application or matter referred to in subsection 1” (i.e. matters which are within the jurisdiction of the Labour Court.)

 

Seealso ZBC v Sones S-63-82 at 15; Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H); Art Printers Ltd v Regional Hearing Officer & Anor HH-168-87; Fisher & Ors v Air Zimbabwe Corporation 1988 HH-306-88; Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1) ZLR 613 (S); Nyangani v Forestry Commission 1996 HH-169-96; MMCZ v Mazvimavi 1995 (2) ZLR 353 (S); Manyonda & Ors v PTC 1999 (2) ZLR 81 (H)

 

If the enabling statute or the terms of the contract lays down that the parties must exhaust their internal remedies first before taking the matter to a court of law, then the internal remedies would have to be pursued before taking the matter to court. However, even here if the original administrative authority acted ultra vires its powers, the High Court could still entertain the matter even though internal remedies have not been exhausted.

 

 

Exclusion of review jurisdiction (ouster clauses)

 

In the past Parliament has sometimes passed legislative provisions which purported to exclude the power of the courts to review certain administrative actions. However, the courts put up fierce resistance against such law, guarding jealously their review capacity. Using the presumption against ouster of the jurisdiction of the courts, have only been prepared to accept that their jurisdiction to review has been removed by legislation only if this is laid down in the clearest and most explicit terms, see Masenda v Estate Agents Council HH-20-84 and R v Padsha 1923 AD 281.

 

It is clear that the provision in a statute of an appeal mechanism does not oust the court’s review power, and neither does the express exclusion of a right of appeal cut out the power of review, see Archipelago (Pvt) Ltd v Liquor Licensing Board 1986 (1) ZLR 146 (H); Rent Control Board v SA Breweries Ltd 1943 AD 456 and Msomi v Abrahams NO & Anor 1981 (2) SA 256 (N).

 

Even where the Legislature has apparently excluded the review jurisdiction of the courts, the courts have still interpreted this legislation restrictively so as to enable the court still to review in circumstances where jurisdiction was assumed where there was none, or the action taken resulted from fraud, see Union Government v Fakir 1923 AD 466. The approach has been that administrative officials are only permitted to act in terms of legislation and any ouster clause does not remove the jurisdiction of the courts to review action not taken in terms of legislation i.e. when an official is acting ultra vires. Thus in the case of Natal Newspapers (Pty) v State President of the Republic of South Africa 1986 (4) SA 830 (A) the court rules that an ouster clause did not preclude the court from deciding whether the State President had acted beyond his powers.

 

De Ville at p 458 of his book Administrative Review of Administrative Action in South Africa maintains that there can be little doubt that one of the main reasons for including in the South African Constitution the constitutional right to lawful, reasonable and procedurally fair administrative action was to abolish ouster clauses. This is further fortified by the inclusion in the South African constitution of the right of access to the courts. This argument also applies to the Constitution of Zimbabwe in which section 68 guarantees the right to lawful, reasonable and procedural and substantively fair administrative action. Additionally one of the founding principles and values set out in section 3of the Constitution which is the supremacy of the Constitution and respect for the rule of law.

 

In De Lille v Speaker of the National Assembly 1999 (4) SA 863 (C) the Constitutional Court decided that the scope for ouster clauses has been drastically reduced if not entirely eliminated as a result of the inclusion in the Bill of Rights of guarantees of the right to administrative justice and the right of access to the courts. At para 14 Mahomed CJ stated:

Section 2 of the Constitution expressly provides that law or conduct inconsistent with the Constitution is invalid and the obligations imposed by it must be fulfilled. It follows that any citizen adversely affected by any decree, order or action of any official or body, which is not properly authorised by the Constitution is entitled to the protection of the Courts. No Parliament, no official and no institution is immune from the judicial scrutiny in such circumstances.” In the past Parliament has sometimes passed legislative provisions which purported to exclude the power of the courts to review certain administrative actions.

 

Labour Cases

 

Section 89 (1)(d1) of the Labour Act provides that the Labour Court shall “exercise the  same powers of review as would be exercisable by the High Court in respect of labour matters.

Section 89(6) provides that “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).” (This includes the provisions relating to review of labour matters.)

 

In the case of Tuso v City of Harare HH-1-2004 the court decided that the High Court did not have jurisdiction to consider reviews arising out of contracts of employment because s 89(6) has ousted the jurisdiction of the High Court to review decisions in the first instance. By creating a special court exclusively dealing with labour matters and conferring it with review powers equivalent to the High Court and then proceeding to expressly exclude the jurisdiction of all other courts in the first instance, the Legislator must have intended to oust the jurisdiction of all other courts in this regard. Matters could have been different had the Labour Court exercised its appeal or review jurisdiction and the High Court was being invited to review the proceedings of the Labour Court under its general powers of review.

In this case an employee was dismissed by City Council. Aggrieved by the determination, applicant approached the High Court for review complaining of irregularities in procedures which led to his dismissal. He argued that there was gross non-compliance with the Urban Councils Act which sets out procedures for the suspension and dismissal of junior employees.

In the present case no other court or body had reviewed the proceedings prior to the High Court being invited to exercise its powers of review. There had only been trial proceedings in the form of an initial hearing and an appeal to the Review Board but certainly no review in the ordinary sense.

The court held that it had no jurisdiction to review this case. Additionally the applicant had not exhausted his domestic remedies first. The remedy in the Labour Court was a better remedy as that court can deal both with substantive matters on appeal and procedural matters on review whereas High Court has no appellate jurisdiction but could only deal with procedural matters on review.

However, in the case of Sibanda and Another v Benson Chinemhute and Another HH 131-04 the court ruled that although Labour Court has exclusive jurisdiction to review labour cases in the first instance, the High Court still retains the power to issue declaratory orders in such matters as the Labour Court does not have this power. The Labour Court has not been specifically empowered to issue such orders and it cannot itself create such relief as it is not a court of inherent jurisdiction.

In Shumba v Minister of Justice & Ors 2014 (1) ZLR 715 (H) the court may not review purely labour matters under the Administrative Justice Act; such matters must be dealt with by the Labour Court.

 

Whether proceedings of domestic tribunals reviewable

 

A domestic tribunal is a tribunal established by contractual agreement between the parties and is not established by statute. It is now clearly established in South Africa that the proceedings of domestic tribunals are subject to review by the High Court. See Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A) and Blacker v University of Cape Town & Anor 1993 (4) SA 402 (C). In the Blacker case the court ruled that a domestic tribunal established under a contract must observe the rules of natural justice where the express or implied terms of the contract oblige it to do so.

 

In Zimbabwe there is no specific ruling on this point, but it is very likely that our courts will adopt the same approach as in South Africa. The Vice-Chancellor, University of Zimbabwe & Ors v Mutasah & Ors 1993 (1) ZLR 162 (S)