By Caleb Mucheche- Dean of Law/Legal Practitioner
The Constitution of Zimbabwe Amendment (No.1) Bill, 2017(H.B.1, 2017) poses a serious threat to the existence and jurisdiction of the Labour Court by proposing to make the Labour Court a subordinate of the High Court. Jurisdiction refers to the capacity and power of a court to hear and determine a matter or dispute. If this proposed amendment to the Constitution succeeds, it is likely to generate a fertile breeding ground for cumbersome and expensive labour dispute resolution in Zimbabwe thereby negatively affecting investor confidence and creating a recipe for industrial unrest. This paper seeks to expose the demerits of making the Labour Court a subordinate of the High Court as contained in the aforesaid Bill and proffer solutions to avert the potential crisis which may be created by the Bill.
Effect of the Bill on the status of the Labour Court
Section 3 of the Bill seeks to amend section 172(1) of the Constitution by a repeal of paragraph (a) which provides for a Judge President as the head of the Labour Court and substituting it with a new paragraph (a) which provides for a senior judge as the head. Under the current section 172(1)(a) of the Constitution, the Labour Court enjoys the same status as the High Court in that it is headed by a Judge President. The status quo puts the Labour Court at par with the High Court in so far as both courts are headed by a Judge President. This position augurs well in preserving the jurisdiction of the Labour Court from encroachment by the High Court or any other court as was succinctly articulated by CHIWESHE JP in seminal and celebrated case of Benson Samudzimu vs Dairibord Holdings Ltd in the following salutary words:-
“ In Tuso v City of Harare 2004 (1) ZLR 1 (H) BHUNU J had occasion to consider the legal import of s 89(6) of the Labour Act. The learned judge concluded at p3F as follows:-
“ It is manifestly clear to me that the intention of the legislature was to expressly exclude the jurisdiction of all other courts in areas where the Labour Court has jurisdiction in the first instance.”
I am in entire agreement with that conclusion. It is important to note the historical context in which the Labour Court was created. Its predecessor, the Labour Relations Tribunal, was very limited in terms of its powers and jurisdiction. Its decisions were subject to review by the High Court in much the same way as decisions of any other domestic tribunal would be. Even then this court always took the view that a litigant must first exhaust the internal remedies availed to it in terms of the Labour Act, before approaching it for relief. The Labour Relations Tribunal was in 2003 transformed into a court whose powers of review were same as those of the High Court subject to the provisions of s 89(1) of the Labour Act. The intention of the legislature clearly was to establish a one stop shop for labour matters and provide finality in litigation involving labour issues. Otherwise why create a structure that is parallel to the High Court?” (emphasis added by underlining)
The long and short of the wise words by CHIWESHE JP in the above case is that the Labour Court must be a fully fledged stand alone court specialised to deal with labour disputes to finality and that it must not operate under the shadow of the High Court. These words apply with full force and effect today as they did in 2010 when the learned Judge President of the High Court echoed them.
Section 5 of the Bill seeks to amend section 174 of the Constitution by providing that the Labour Court and Administrative Court are courts subordinate to the High Court meaning that the former courts are inferior to the High Court and potentially subject to the review powers of the latter. This means that the status of the Labour Court is now subservient to the High Court and hence decisions of the Labour Court in labour matters can be prone to a meandering and expensive process of being taken to the High Court first and later the Supreme Court. In terms of the present position, any party aggrieved by any decision of the Labour Court on a question of law approaches the Supreme Court directly and not the High Court. From the time the Labour Court was made into a court from the Labour Relations Tribunal, as a matter of practice and out of respect of the Labour Court as a specialist court for labour matters, the High Court refrained from exercising review jurisdiction over decisions of the Labour Court or some other labour tribunals. The High Court deferred any review of labour matters to the Labour Court because the legislature bestowed the Labour Court with the same review powers exercisable by the High Court in respect of labour matters by enacting section 89(1)(d1) of the Labour Act. This created certainty in that litigants were no longer crisscrossing from the Labour Court to the High Court for review of labour matters as the law made it the preserve of the Labour Court.
Cumbersome labour dispute resolution
The Bill will introduce a cumbersome labour dispute resolution system if it becomes law in its current form because it allows parties to embark on a forum shopping spree between the Labour Court and the High Court. It is trite law that there must be finality to litigation but given a scenario where the Labour Court is made inferior to the High Court, some litigants will develop the appetite to undergo protracted labour disputes. A long and protracted labour dispute resolution is counter-productive particularly in labour matters because instead of concentrating on production, employers and employees can lose valuable production time locked up in endless labour disputes. Unlike the Labour Court where the procedure is very flexible and easy to comprehend even for a litigant who is a self actor, the procedure before the High Court is sometimes complicated such that parties will have to fork out a lot of money to hire legal practitioners to represent them. Those who fail to afford the cost of engaging legal practitioners to represent them at the High Court will simply lose their fundamental constitutional right to access courts of law for justice as provided for in terms of section 69(3) of the Constitution. Sometimes, disputes before the High Court are obscured by a thicket of legal technicalities. If a labour dispute remains unresolved for too long, that can create resentment which may later manifest itself in the form of industrial unrest. No prudent investor would want to invest money in an environment of labour dispute resolution uncertainty because that investor can lose a lot of money through labour costs emanating from protracted disputes. The idea of creating the Labour Court as a specialist court with exclusive jurisdiction in all labour matters was very noble and progressive but all the gains made by such legislative developments are under severe threat from the Bill which seeks to make the Labour Court subordinate to the High Court. Parties who are legally represented may shun the Labour Court preferring to approach the High Court for resolution of labour disputes not out of respect for the High Court but may be taking advantage of the legal terrain at the High Court which may be a rough ride for a party who is not legally represented.
Expensive labour dispute resolution
As earlier on alluded to, a multiplicity of courts dealing with labour disputes invariably creates an expensive labour dispute resolution system. Litigations will go back and forth from the Labour Court to the High Court. This piecemeal approach to labour cases is likely going to fuel a backlog of labour disputes. By making the Labour Court subordinate to the High Court, the Bill essentially gives a hint to any litigant who is aggrieved by a decision of the Labour Court to challenge it before the High Court thereby creating more litigation expenses. Some decisions and proceedings of the Labour Court are likely going to be stalled by being taken to the High Court on review. Litigation is not a joy ride but comes with expenses both in terms of money and time. The Bill creates murky waters for labour dispute resolution in Zimbabwe. In most cases, ordinary employees have a weaker financial muscle compared to their employers and hence if a labour dispute arises and takes several twists and turns in the Labour Court and the High Court, those employees who lack the financial means may be forced to abandon legal recourse to avoid incurring unaffordable legal costs.
Industrial unrest emanating from cumbersome and expensive labour dispute resolution
The expensive web of labour dispute resolution that is likely to come out of the relegation of the Labour Court to become a subordinate of the High Court may lead to industrial unrest. Labour disputes require a fast, flexible, cheaper and efficient dispute resolution system but the Bill points to the opposite direction. Some litigants who lose confidence in the circuitous dispute resolution system may end up resorting to self help and that will create anarchy at the workplace.
Proposed solutions to curb the problems created by the Bill
There are two possible solutions to cure the problems created by the Bill. The first solution is to leave sections 172 and 174 of the Constitution as it stands and forgo the amendments proposed in terms of the Bill. This means doing away with any plans to make the Labour Court a subordinate of the High Court by expunging any such provisions from the Bill. In the same vein, the legislature can borrow a leaf from our neighbour South Africa by amending the Labour Act to reinforce the exclusive and inherent jurisdiction of the Labour Court to hear and determine all labour disputes and matters connected with employment. When resources permit, the legislature can take a lesson from the South African approach by enacting a law creating a Labour Appeal Court to hear all appeals from the Labour Court on questions of law only and not questions of fact. Appeals from the Labour Appeal Court will then lie to the Supreme Court. The other solution is to reword the Bill and provide that the Labour Court and Administrative Court shall become divisions of the High Court. This will ensure that there is certainty in labour dispute resolution because parties with labour disputes will easily seek redress via one court of law. Also, making the Labour Court and Administrative Court divisions of the High Court will plug the problem of forum shopping in dispute resolution and save costs. In the same vein, that approach will also promote the letter and spirit of specialist courts and even enhance the weight of the High Court through a cross pollination of specialised legal services.
This is a passionate plea to the powers that be to prevent a relapse of the labour dispute resolution in the country as a consequence of making the Labour Court subordinate to the High Court. There is need to maintain and fulfil the objectives behind the creation of the Labour Court as a specialist court as opposed to annulling them. Progressive labour dispute resolution systems are some of the alluring factors that motivates investors to come and invest in our beloved nation and by the same token, unfriendly labour dispute resolution systems scare away investors.
South Africa recently amended its Labour Relations Act of 1995 by entrenching the exclusive and inherent jurisdiction of the Labour Court to hear and decide labour matters.