Judgment No. HB 106/14
Case No. HC 433/14
MINISTER OF JUSTICE AND LEGAL AFFAIRS
THE DIRECTOR OF PUBLIC PROSECUTIONS
THE ATTRONEY GENERAL’S OFFICE CIVIL DIVISION
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 4 JUNE AND 10 JUNE 2014
B. Masamvufor the applicant
Ms Saruwaka for the respondents
MOYO J: The Applicant filed an application in terms of section 3 of the Administrative Justice Act [Chapter 10:28]. In this application Applicant seeks an order in the following manner:-
i) An order setting aside the decision of the Respondent to transfer the Applicant without giving him an opportunity to be heard.
ii) An order setting aside the decision to demote Applicant to an inferior post.
iii) An order setting aside the decision to serve Applicant with a notice to vacate a Masvingo government residence without alternative accommodation as being unlawful unprocedural, unreasonable, unfair and substitute it with an order that:
1) The Masvingo status quo ante be restored without the loss of benefits or alternatively if the Applicant remains at Gweru, that he occupies the office of the Area Public Prosecutor attendant with all its benefits.
2) The notice to vacate the Masvingo government accommodation without alternative government accommodation be declared invalid.
The Applicant contends that the Respondent’s decision contravenes section 3 of the Administrative Justice Act [Chapter 10:28] in that it was unlawful, unreasonable and unfair.
The Respondents raised a point in limine to the effect that the application should be dismissed as it is in fact an application for the review of a labour decision, wherein only the labour court has jurisdiction and therefore it has been brought on the wrong platform. It is this point in limine that I would want to deal with.
Section 4 of the Administrative Justice Act (supra) provides for Relief against administrative authorities and it is worded as follows:
“Section (4) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section 3 may apply to the High Court for relief.” (Emphasis mine).
This section clearly shows that the relief that can be sought by an Applicant in terms of section 3 is subject to the provisions of any other law. Section 7 of the same Act provides thus:
“Without limitation to its discretion, the High Court may decline to entertain an application made under section 4 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 must be first exhausted.”
The relief sought by Applicant is clearly a review of the decision of the Respondents in their capacity as the employers of the Applicant. Applicant’s dissatisfaction with the steps taken by his employer and the manner in which these steps were taken, resulting in his transfer and “demotion” are purely a labour issue which the labour court in terms of section 89 (1)(d)(1) of the Labour Act [Chapter 20:01] has jurisdiction in. That section provides as follows:
“The labour court shall exercise the following function:-
Exercise the same powers to review as would be exercised by the High Court in respect of labour matters.” (Emphasis mine)
Section 89(6) of the Labour Act (supra) provides that
“No court other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal or matter referred to in subsection (1).”
This in effect means that the labour court and only the labour court can exercise review powers and any other powers regarding the decisions of administrative authorities in labour matters.
Whilst the High Court has inherent jurisdiction in all matters, section 26 of the High Court Act [Chapter 7:06] provides as follows:
“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 in Zimbabwe.” (emphasis mine)
Section 27 (1) (a) of the High Court Act (supra) 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 or authority concerned (emphasis mine).
Section 89 of the Labour Act (supra) as alluded to above clearly takes away from any
other court, the powers to determine or hear matters provided for in that section. Powers of review in terms of section 3 and 4 of the Administrative Justice Act (supra) where labour matters are concerned in my view fall into the same category. On the other hand section 26 of the High Court Act (supra) subjects the High Court powers of review to the provisions of any other law, clearly meaning that where another law provides otherwise, the High Court would not be allowed to exercise review powers that have been specifically taken away from it by another enactment. I therefore find that I can not usurp powers specifically given to the Labour Court in no uncertain terms.
I am in total agreement with the findings of the learned judges in the following cases; Samudzimu v Dairiboard Holdings HH 204/10, Tuso vs City of Harare HH 1/04, Gwindingwi and another HH 168/11, and Medical Investments Ltd vs Pedzisayi HH 26/10.
The essence of all these judgments was that the provisions of the Labour Act specifically exclude the jurisdiction of the High Court in Labour matters.
It therefore follows that since I have found that whatever Applicant decides to call his application, I have however on its grounds, facts and relief sought, determined that this is in fact an application for review that the Applicant decided to call a declarator, and it is therefore improperly before me as the jurisdiction to review labour authorities’ decisions clearly lies with the Labour court.
I accordingly dismiss the application with costs for the aforestated reasons.
Dube, Tachiona Tsvangirai, applicant’s legal practitioners
Civil Division, Attorney General’s Officerespondents’ legal practitioners