BY ADMORE MARAMBANYIKA  

In a landmark decision that redefines the legal boundaries of Zimbabwean employment law, the Supreme Court has ruled that the Labour Court has no power to grant declaratory orders, overturning a decision that had declared dismissed Masvingo City Council Engineer Tawanda Gozo to still be an employee.

The judgment, delivered by Justice Happias Zhou, firmly establishes that as a creature of statute, the specialized Labour Court can only exercise powers explicitly conferred upon it by Parliament. Because neither the Labour Act nor any other enactment explicitly grants original jurisdiction for declaratory relief to the Labour Court, such remedies remain the exclusive preserve of the High Court.

The ruling allowed an appeal by the Masvingo City Council, setting aside a Labour Court order that had favoured Eng Gozo following a protracted disciplinary dispute.

Eng Gozo, the council’s Director of Engineering Services, was subjected to disciplinary proceedings over the deterioration of municipal water supplies and subsequently dismissed. Under Section 123(1)(c) of the Urban Councils Act, the dismissal of senior municipal officers requires approval from the Local Government Board (LGB).

In September 2022, the board's chairman refused to approve the dismissal and directed his reinstatement. The council successfully challenged that decision in the High Court, which remitted the matter back to the board to strictly determine whether to approve or reject the dismissal.

On July 2, 2024, the LGB chairman again refused to approve the dismissal, but this time did not order reinstatement. When Eng Gozo reported for duty on August 14, 2024, believing his employment relationship was intact, council officials sent him home after two days, maintaining his dismissal remained effective.

Eng Gozo subsequently approached the Labour Court seeking a declaratory order that the board’s refusal meant he remained an employee. The Labour Court ruled in his favour.

On appeal, Council representative Advocate Tawanda Zhuwarara argued that Section 89 of the Labour Act does not grant the Labour Court authority to issue declaratory orders. Opposing counsel, Professor Lovemore Madhuku, countered that Section 172(2) of the Constitution and Section 89 empowered the court to determine all employment disputes, including applications for declaratory relief.

Justice Zhou rejected Madhuku’s argument, stressing that Parliament "plainly knew how to confer a declaratory power when it wished to do so," pointing to Section 14 of the High Court Act which explicitly empowers the High Court to issue such orders.

Crucially, the Supreme Court did not determine whether Eng Gozo remains employed, leaving that substantive question to be decided by a court with proper jurisdiction.

The Supreme Court’s judgment carries far-reaching consequences for human resource professionals, trade unions, legal practitioners, employers, and employees across Zimbabwe:

End to "Forum Shopping" and Procedural Missteps: For years, litigants frequently approached the Labour Court seeking quick declarations on contract validity, termination legality, or employment status. This ruling draws a sharp line: employers and employees can no longer seek declaratory relief in the Labour Court. Filing in the wrong forum will lead to cases being dismissed on jurisdictional grounds regardless of their substantive merits.

Increased Cost and Friction in Employment Disputes: The High Court is generally more formal, litigious, and expensive than the Labour Court. Employees challenging immediate suspension or seeking urgent declarations about their contractual status must now litigate in the High Court under Section 14 of the High Court Act. This creates a higher barrier to entry for individual workers who may lack the financial resources required for High Court litigation.

Strategic Realignment for Disciplinary and Statutory Boards: Employers, particularly local authorities and state enterprises governed by statutory boards, gain temporary procedural leverage. Where statutory approvals (such as LGB determinations) create ambiguity over whether an employee is dismissed or reinstated, employers can maintain the status quo while forcing the employee to initiate costly High Court proceedings to secure a binding declaration.

Need for Legislative Reform or Constitutional Clarification: Justice Zhou explicitly acknowledged conflicting past decisions from the Supreme Court on this issue; disagreeing with the earlier approach in Ming Chang Sino Africa Mining Investments (Pvt) Ltd v Hui Zhang & Ors. The court noted that this fundamental jurisdictional divide ultimately requires definitive clarification by the Constitutional Court or explicit amendment of Section 89 of the Labour Act by Parliament.

Parties with active Labour Court applications seeking declaratory orders should review their pleadings immediately with legal counsel. Where the core relief sought is a declaration of rights, applications must be instituted in the High Court. Standard labour disputes involving unfair labour practices, retrenchment appeals, or arbitral awards remain under the Labour Court's purview.