This used to be one of the contentious areas in terms of the law, the question of the jurisdiction of the High Court in labour and employment matters in the first instance. There were several conflicting judgments on this point with some holding that the court does have jurisdiction with others holding otherwise.

The common argument that was raised in approaching the High Court was the fact that the High Court is a creature of common law and consequently has universal jurisdiction. In s171(1), the Constitution itself provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014(2) ZLR 837 (H), a claim for outstanding salaries was held to be a purely debt collection matter, which could be entertained by the High Court, depending on the amount(s) to be collected. Further, in Confederation of Zimbabwe Industries v Mbatha HH 126/15, the High Court held that s 171(1) of the Constitution overrides s 89(6) of the Labour Act and that consequently the High Court has original jurisdiction over all matters, including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH 813/15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter. Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed in other decisions of the same court such as Nyanzara v Mbada Diamonds (Private) Limited 2016(1) ZLR 195(H) which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, the High Court included.

The existence of the conflicting judgments created a lot of confusion amongst lawyers and litigants and the Courts themselves hence the need for clarity and a definitive pronouncement on the point by the Supreme Court on this issue. The position of the law has now been settled by the Supreme Court in the case of Stanley Nhari v Robert Gabriel Mugabe and 2 Others SC161/20.

The ultimate question for determination in the Nhari case was whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues, including issues of labour and employment.

The Court observed on page 1 -2 of the cyclostyled judgment; “Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.”

The Supreme Court went on to interpret S171 of the Constitution that provides for the jurisdiction of the High Court. It observed that one must accept, as one should, that the ordinary grammatical meaning of s 171 (1) of the Constitution is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

However, the Constitution did not stop there as doing so would disarm arguments that the High Court does not have jurisdiction to hear and determine all criminal and civil matters, inclusive of labour matters. The Constitution went further to create other courts with specialised functions.

The Court reasoned further that the same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe in terms of s 171 (1) went on to create, in s 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The same Constitution that gave original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law and the exercise of such jurisdiction was left entirely to Acts of Parliament.

The Constitution itself in other words permitted the establishment of specialised courts and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

The Court further observed that Section 172 of the Constitution which establishes the Labour Court is not made subject to s 171 which creates the High Court.

The Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such specialised courts, or to make such jurisdiction subject to s 171 which creates and provides for the jurisdiction of the High Court.

The intervention of the Supreme Court on this point is important in guiding all parties concerned.  The High Court has relied on the Nhari judgment in subsequent cases.

One of the fairly recent judgments is Darlington Gutu v Netone Cellular (Private) Limited HH420/21 where Justice Tsanga declined jurisdiction to deal with a labour matter; “In light of the weight of case authority, there is, therefore, no need to belabour the matter of jurisdiction of this court. In my view it is very clear that the dispute to be resolved is an employment dispute in which an employee seeks compensation for the unterminated part of his contract whilst the employer argues that it acted within the parameters of the legislation as provided for in the Labour Act in terminating that contract.”

In the case of Lazarus Muchenje v Susan Mutangadura & Ors HH21/21, which also dealt with the purported illegal termination of a fixed contract of employment, the court declined jurisdiction on the basis that s 2A(1)(f) of the Labour Act is pertinent to the resolution of disputes such as these. That section seeks to secure a just, effective and expeditions resolution of employment disputes and unfair labour practices. In that matter, the High Court, therefore, declined jurisdiction.

The case of Chingombe & Anor v City of Harare & Ors SC 177/20 makes it clear that the High Court has no jurisdiction to issue a declaratur in respect of issues of labour and employment. The Supreme Court recognised that the Labour Court, being a creature of statute, can only do that

However, the Court emphasised that in deciding whether a matter is properly before the High Court, regard has to be paid to the premise upon which an applicant has approached the court. In other words, resolution of the question on jurisdiction hinges on the dispute that is placed before the court.

Simply put, where the essence of the dispute is one which the Labour Court has the jurisdiction to address, or can address and ought to address, then approaching the High Court on such a matter for a declaratur would not be proper.

It would amount to usurping the powers of the Labour Court to deal with labour issues. Thus as the Supreme Court explained, the High Court has no jurisdiction to issue a declaratur in respect of issues of labour and employment.

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].