Darlington Gutu v NetOne Cellular (Private) Limited

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DARLINGTON GUTU
versus
NETONE CELLULAR (PRIVATE) LIMITED


HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 4 June & 18 August 2021


Opposed Matter


R.T Mutero with C Mucheche, for the applicant
T Mpofu, for the respondent


[1]      TSANGA J:      The applicant and the respondent entered into a fixed term contract of
employment which the respondent terminated before the expiry of the fixed term. The applicant
filed this application for a declaratur on the basis that clause 3.2 of that contract only allowed the
employee but not the employer to terminate on notice.
[2]      The applicant’s position is that where a fixed term contract is terminated prematurely,
then an employee is entitled to compensation for the unexpired period of that prematurely
terminated contract. Thus the declaratur which the applicant seeks is that the respondent had no
right to terminate his contract of employment on notice. It is also to the effect that the purported
termination of the applicant’s employment contract on notice, by a letter dated 9 July 2020 be
declared null and void and of no force and effect. Costs of suit are also sought an attorney client
scale.
[3]      The reason for approaching the High Court for this declaratur is said to be that the issue,
being within the species of a contract, cannot be placed before a labour officer for the reason that
a labour officer is not trained in the nitty gritties of the law. Applicant also argues that the cause
of action being enforcement of a common law remedy for breach of contract, only the Supreme
Court and the High Court can develop the common law as this is an exercise of serious
jurisprudence which requires superior courts. The applicant also draws attention to the cases of
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Kudakwashe Nyashanu v Netone Cellular (Pvt) Ltd HH 119/19 and Loveness Govera & Anor v
Netone Cellular (Pvt) Ltd HH 720/20 in which such declaraturs for premature breach were
sought and obtained in the High Court.

[4]    The respondent raises the issue of the jurisdiction of the High Court to deal with labour
matters as an issue for determination in the initial instance. Since the applicant’s main argument
is that he has been unfairly dismissed through the premature termination of his contract without
compensation for the remainder of that contract, the respondent argues that this is purely a labour
matter which must be resolved through labour channels. Two Supreme Court cases have ben
brought to this Court’s attention in support of this assertion. The case of Nhari v Mugabe SC
161/20 emphasises that the Constitution created labour courts as special courts which must be
utilized by those with causes in labour law. 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 case of Loveness Govera & Anor v Netone
Cellular Pvt Ltd HH 720/20 cited by the applicant in quest of its declaratur is also highlighted as
having been since reversed by the Supreme Court on the basis of these jurisdictional principles.
[5]    In the case of Chingombe & Anor v City of Harare & Ors supra the Supreme Court
recognized that the Labour Court, being a creature of statute, can only do that which the enabling
Act empowers it to do. 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:
       “Section 2 A of the Labour Act makes it clear that, notwithstanding the powers of the High Court
       to issue declaratur, the Labour Act prevail over all other laws inconsistent with it.”
[6]    The applicant’s rationale for approaching this court is not because this is not a labour
dispute but the supposition that a labor officer would be not be able to fully comprehend a labour
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matter within the subspecies of a contract. That does not stop the matter from being a labour
matter neither is there any support for the assertion that comprehension of labour matters within
the realm of contractual disputes is beyond the capacity of a labour officer. In any event, the
decision of a labour officer would be submitted to the Labour Court for confirmation or
discharge in terms of the propriety of the termination. It cannot be said that the Labour Court, set
up as a specialist court to hear labour matters, would not have the expertise to address the
dispute. The order sought by the applicant is itself clear that it is the premature termination of a
contract of employment that is sought to be challenged. In other words the dispute lends itself to
adjudication under the Labour Act especially in so far as the respondent opposes this application
on the basis that it followed the procedures laid out in s 12 of the Labour Act [Chapter 28:01].
Indeed 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.
[7]    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. The respondent says that it brought
the applicant’s attention to the relevant case law on the issue of the lack of jurisdiction of the
High Court. In particular, the case of Nhari v Mugabe & Ors and that of Lazarus Muchenje v
Susan Mutangadura & Ors HH21/21 supra were said to have been brought to the applicant’s
attention just before the hearing. The applicant is said to have persisted with his approach to this
court. However, the case of Chingombe & Another v City of Harare which addresses more
specifically the issue of the High Court’s jurisdiction or lack thereof with respect to the issuance
of declaraturs on labour matters was only brought to the attention of the court and the applicant
post-hearing and pending judgment on the issue of jurisdiction. I do not believe that the applicant
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would have persisted with this matter had they had sight of that particular judgment before the
hearing.
[8]    Accordingly;
       1. Jurisdiction is declined
       2.   Each party to pay their own costs.
Caleb Mucheche & Partners Law Chambers, Applicant’s Legal Practitioners
Messrs Gill Godlonton & Gerrans, Respondent’s Legal Practitioners