Professor Lovemore Gwanzura v Professor LM Nyagura & 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/429/13
HARARE, 5TH JUNE 2013
& 13TH SEPTEMBER 2013
CASE NO. LC/REV/H/144/12
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/429/13

HARARE, 5TH JUNE 2013			CASE NO. LC/REV/H/144/12

& 13TH SEPTEMBER 2013

PROFESSOR LOVEMORE GWANZURA		Applicant

Versus

PROFESSOR LM NYAGURA & 3 OTHERS	Respondent

Before the Honourable L Hove :	Judge

For the Applicant :	D Sibanda (Legal Practitioner)

For the Respondent:  Adv R H Goba (Legal Practitioner)

HOVE J,

The applicant alleges that his contract of employment was terminated without due process.

He applied for review to this court.

When the matter came up for hearing it was argued in limine that s 89 (i)(di) of the Labour Act [Cap 28:01] (“the Act”) does not avail an aggrieved person direct first instance access to the Labour court to review acts, decisions and proceedings in respect of Labour matters without exhaustion of domestic remedies where such are provided elsewhere, or under the Act.

It was argued further that in casu, the applicant had came straight to the Labour court without exhausting domestic remedies provided in terms of the act and there is no good cause shown to allow the applicant direct access to the Labour court. For this reason, it was argued that the application should be dismissed.

Another preliminary point raised in the alternative was that the issue was moot and for that reason as well, the application must be dismissed.

The first issue will be dealt with hereunder:

Must the applicant be allowed to approach the court before exhausting domestic remedies?

The courts have in some cases held that an applicant must first exhaust any remedy provided for in the statute before taking the matter for judicial review but the mere fact that the legislature or contract has provided for an extra-judicial right of review does not Ipso facto preclude an applicant from approaching the court for review.

Zikiti v United Bottlers HH 60-98; Musandu v Chairperson of Cresta Lodge Disciplinary & Grievance Committee HH 115-94.

The court have preferred to retain a discretion as to whether or not an applicant can be allowed to approach the court before exhausting domestic remedies. This would allow the court to assess if a litigant could get effective redress in the domestic remedies available and other various considerations.

But the accepted position is that an applicant is not barred from seeking redress from the courts even in cases where domestic remedies have not been exhausted. This therefore is an issue that is entirely in the court’s discretion and the applicant is not automatically barred.

In casu the court’s review powers are wide in relation to labour disputes. The court can exercise the same review powers as would be exercised by the High Court.

The legislature has not sought to exclude the jurisdiction of the court or to restrict it.

A litigant can approach the High Court for review at any time during proceedings that are sought to be challenged or after the said proceedings have been concluded. There is no hard and fixed rule that review cannot be sought before domestic remedies have been exhausted. As already indicated the court, after considering the circumstances of each case and convenience to itself, can allow a litigant to approach it before domestic remedies have been exhausted.

The circumstances of this case are in my opinion such that the interests of justice are best served by the court hearing this matter. It has the necessary jurisdiction in the same way the High Court can exercise its discretion in favour of hearing a review application even before a litigant has exhausted domestic remedies available.

The second issue of muteness is one that cannot be decided on without me considering the merits of the matter.

The argument advanced is that the applicant was engaged on a fixed term contract basis and he would not have had any reasons or basis to expect that his contract would be renewed beyond the fixed term. In the event that the court finds that the termination, was unlawful and unprocedural, there would be no need to order damages as he was paid up to the time the contract would have expired. He therefore suffered no damages.

For the court to investigate the issues of whether or not there was no legitimate expectation for the renewal of the contract, it would need to look into the merits of the matter but these have not yet been argued before me. I would therefore decline to decide this point until such a time as all the issues have been placed before me. This point will thus be decided together with the merits of the review application.

Since the court has found that it has jurisdiction to hear the matter even though the applicant has not exhausted his domestic remedies. I will make the following order:

That the first point in limine be dismissed.

That the Registrar will set the matter down for hearing of the merits at the next available date.

That the second point raised in limine be decided together with the merits.

HOVE J

JUDGE – LABOUR COURT

Sibanda & Partners, applicant’s legal practitioners

Ziumbe & Partners, respondent’s legal practitioners