Jackson Muzi v First Mutual Life Assurance

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/30/2020
HARARE, 15 JANUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/30/2020

HARARE, 15 JANUARY, 2020		     	     CASE NO. LC/H/APP/249/19

AND 31 JANUARY, 2020

In the matter between:-

JACKSON MUZIVI								Applicant

AND

FIRST MUTUAL LIFE ASSURANCE					Respondent

Before The Honorable L. Hove, Judge:

Applicant				In Person

For Respondent			T. Chagudumba (Legal Practitioner)

HOVE J:

This is an application for interim relief.

The background is common cause and it is that sometime in 2011 this court quantified amounts due to the applicant as damages for unlawful loss of employment with the Respondent.

That decision sounded both in United States dollars and for the period before the introduction of United States dollars, the judgment was in Zimbabwean dollars.

When the applicant tried to register the judgment for enforcement purposes with the High Court, the Registrar of the High Court declined to issue the writ on the basis that the amount awarded was sounding in Zimbabwean dollars and adopted according

to the respondent, “the sound view that only a court order converting the amount is acceptable”.

The applicant then approached the Labour Court for the amounts sounding in Zimbabwean dollars to be converted to United States dollars.

Preliminary issues were raised and argued before the Labour Court when the application for conversion was setdown. A Judgment was rendered. The respondent appealed against that decision to the Supreme Court and the matter was argued on 3 June 2019 before the Supreme Court. Judgment is currently reserved before the Supreme Court.

In these current proceedings, before the Labour Court, the applicant is seeking an interim award of those same damages awarded in Zimbabwean dollars in 2011. The applicant’s claim is for US$10 million. This amount, is claimed as part payment in the relation to the application for conversion which was lodged before this Court in case number LC/H/APP/1091/16 in 2016.

The reason why the High Court could not issue a writ of execution was because the Zimbabwean dollar had become moribund. The amount sounding in Zimbabwean dollars had to be first converted to United States dollars before it could be paid. That situation still obtains, there must be a conversion before the amounts can be paid.

When the matter came up for hearing, two preliminary issues were raised; viz,

(1)	The court has no jurisdiction to hear the matter, and

(2)	The application itself is invalid.

The Labour Court can, in terms of section 92E(3) of the Labour Act [Chapter 28:01] (the act), make interim determinations in the interest of justice. The section reads;

92E (3)

“Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires”.

The application in case number LC/H/APP/1091 is still pending before this Court and the Court still retains its jurisdiction over that matter. The Court made a decision on preliminary issues these preliminary issues were appealed to the Supreme Court but the effect is not that the matter is no longer pending before the Labour Court, it is still pending.

Section 92E (3) however speaks of an appeal and not an application. It says,

“pending the determination of an appeal…”

and not an application nor a matter before the Labour Court. This would mean that the Legislature meant the section to apply to just appeals and not applications or any other

matters. It would therefore appear that the Court has no jurisdiction. This is the simple gramatical meaning of the section.

It is a trite position at law that the courts interpret statutes so as to give effect to the intention of parliament, as expressed in the words of the statute. As was observed by Wessels J in Seluka v Suskin 1912 TPD 258 at page 270.

“my function is jus dicere not jus facere …….I have only to interpret what the legislature enacts and apparently intends”.

The court will apply the literal rule, this is the starting point, that is, that words of statute must be interpreted in their ordinary, literal meaning. That is the cardinal rule of construction, words must be given their ordinary, literal, grammatical meaning. The statute that demands this exercise in casu in section 92E (3). It provides that pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires.

The said provision admits of no ambiguity. Its ordinary literal meaning is that the Court may make interim determinations pending an appeal. Emphasis added. Currently there is no appeal pending before the court. The Chief Justice, honourable Malaba CJ, stated, in the case of Zambezi Gas Zimbabwe (Private) Limited v (1) N.R. Barber (Private) Limited and (2) The Sheriff for Zimbabwe SC 3/2020 as follows;

“It is the duty of a court to interpret statutes where the language used in a statute is clear and unambiguous, the words ought to be given the ordinary grammatical meaning”.

He further quoted with approval the case of;

Endevour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (5) at page 356 F-G where the Supreme Court stated that;

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is, as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result”.

In casu, nothing in the provision under discussion justifies the moving away from the general principle of interpretation. I cannot extend the language of Parliament beyond its natural sense and beyond its proper limits. The court cannot strain the provision of section 92E(3) to try and meet the justice of the case.

For that reason, it would appear that the court does not have the authority to hear the current application.

Is the application invalid

The application is in terms of section 92E(3) as read with section 89 (2) (c) (ii) and section 2A (1) (a) and (f) of the Act.

As already pointed out, section 92E (3) of the Act is clearly limited to applications for interim relief pending the outcome of an appeal. What is pending before the court is an application for conversion of damages from Zimbabwean dollars to United States dollars. The application pending before the court is not an appeal. So the application cannot be in terms of section 92E(3).

Section 2A does not deal with applications for interim awards and is therefore not a basis for bringing this application. It is on the purpose of the Act.

Section 89 (2) (c) (iii) does not give authority for filing of applications for interim relief as it is talking of applications made in terms of section 93 (7)(i) of the Act and this current application is not in terms of that section.

In view of the above, the preliminary points are upheld. The court has no jurisdiction and also the application itself is not authorized or provided for interms of the Act.

The application is accordingly dismissed.

Atherstone & Cook	-	Respondent’s Legal Practitioners