Court name
Supreme Court of Zimbabwe
Case number
SC 109 of 2004
Civil Appeal 101 of 2004

Mabuwa v Circle Cement Ltd. (01/04) (SC 109 of 2004, Civil Appeal 101 of 2004) [2004] ZWSC 109 (13 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 109













Judgment
No. SC 109/04


Civil
Appeal No. 101/04








DAVID
MABUWA v CIRCLE CEMENT LIMITED








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GWAUNZA  JA


HARARE,
SEPTEMBER 14 &








The
appellant in person





G
V Mamvura
, for the respondent









ZIYAMBI JA: This is an appeal
against a decision of the Labour Court.





The
appellant, who was employed by the respondent as a credit
administrator, was on 23 November 1998 suspended on full pay and
benefits from his employment. The purpose of the suspension was
stated to be to facilitate investigations into acts of misconduct.

The letter of suspension was silent on the duration of the
suspension.







On 18 December 1998 the
respondent referred the matter to a labour relations officer in terms
of s 101(6) of the Labour
Relations Act [Chapter 28:01]
(“the Act”). The appellant, through his then legal
practitioners, objected to the referral on the basis that the
registered
Code of Conduct (“the Code”) provided for the handling
of disciplinary matters and that recourse to the labour relations
officer
should only be had after exhaustion by the parties of all the
internal procedures.







The respondent agreed with the
appellant’s legal practitioner and thereafter the appellant was, in
terms of the Code, charged with,
and found guilty on, eight counts of
misconduct. He was dismissed on the recommendations of the Hearing
Committee. An appeal
was lodged with the Grievance and Disciplinary
Committee, which heard the matter on 10 September 1999 and
confirmed the appellant’s
dismissal. No appeal was lodged with
the Labour Relations Tribunal despite the fact that the appellant was
advised of his rights
of appeal.







Meanwhile, in June 2000, the
appellant and two other employees were, on the basis of the earlier
referral, invited to appear before
the labour relations officer.
The respondent did not attend the hearing, having received no
notification thereof. The labour
relations officer ruled in favour
of the appellant and ordered his reinstatement. The respondent
appealed to the senior labour
relations officer, who referred the
matter to another labour relations officer for hearing afresh. The
labour relations officer
ruled that, since the parties had by mutual
agreement proceeded in terms of the Code, he had no jurisdiction to
intervene in the
matter.







Once again an appeal was lodged
with the senior labour relations officer who set aside the
determination of the labour relations officer.







The matter was taken on appeal to
the Labour Court which set aside the determination of the senior
labour relations officer, being
of the view that the labour relations
officer was correct in holding that he had no jurisdiction to
entertain the matter by virtue
of its having been concluded in terms
of a registered Code of Conduct.







Before us, the appellant raised
the point, in limine, that in terms of s 97(3) of the
Act, as amended, and as read with s 47(5) of the Labour
Relations Amendment Act 2002, No. 17
of 2002 (“the Amendment
Act”), the respondent ought first to have complied with the
determination of the senior labour relations
officer before the court
a quo could determine the appeal.







This point was first raised by
the appellant’s legal practitioner at the conclusion of his
submissions before the Labour Court.
He then stated that:






“… for
the sake of progress he had merely chosen to raise the point in order
for the court to take note of the legal position.” (record
p 10).






The
point was noted by the Court, but not considered relevant for the
determination of the appeal before it since when the appeal
was noted
the Amendment Act had not yet been brought into effect.





It
is apparent from the record that the appeal to the Tribunal was noted
by the respondent on 29 January 2002. At that time
the law in
force, namely s 97(3) of the Act, provided that:






“(3) An appeal in terms of subs
(1) shall have the effect of suspending the determination or decision
appealed against.”







The Amendment Act came into
effect on 7 March 2003. Section 97(3) of the Act was
amended to read:






“(3) An appeal in terms of
subs (1) shall not have the effect of suspending the
determination or decision appealed against.”







The general rule to be applied in
a case such as this is that a statute regulates future conduct. See
Minister of Interior v Confidence Property Trust (Pty) Ltd and Ors
1956 (2) SA 365, where CENTLIVRES CJ at pp 372H-373A stated
the position thus:






“Counsel for the appellant also
contended that the land had become forfeited to the State in terms of
the Group Areas Act. Reliance
was placed on secs 8, 18 and 19 of
that Act. I am strongly inclined to the view that in interpreting
those sections the general
rule must be applied viz: a
statute regulates future conduct and must be construed, unless there
is a clear indication to the contrary, as operating only
on cases or
facts which came into existence after the Statute came into
operation. Nova constitutio futuris formam imponere debet non
praeteritis
(meaning a new law ought to make provision for the
future, not the past).”







See also Nkomo and Anor v
Attorney General and Ors
1993 (2) ZLR 422 (SC) at pp 428H-429C
of the report where GUBBAY CJ remarked:






“It is a cardinal rule in our
law, dating probably from Codex 1:14:7, that there is a
strong presumption against a retrospective construction. See Agere
v Nyambuya
1985 (2) ZLR 336 (S) at 338G-339G. Even where a
statutory provision is expressly stated to be retrospective in its
operation, it
is not to be treated as in any way affecting acts and
transactions which have already been completed, or which stand to be
completed
shortly, or in respect of which action is pending or has
been instituted but not yet decided, unless such a construction
appears
clearly from the language used or arises by necessary
implication. See Bell v Voorsitter van die Rasklassifikasieraad
en Andere
1968 (2) SA 678 (A) at 684 E-F; Bellairs v
Hodnett and Anor
1978 (1) SA 1109 (A) at 1148 F-G; Pretorius
v Minister of
Defence 1980 ZLR 395 (A) at 401 F-G, 1981 (1)
SA 1174 (ZA) at 1177H; Adampol (Pty) Ltd v Administrator,
Transvaal 1989 (3) SA 800 (A) at 805F-806D. Care must always be
taken to ensure that the retrospectivity is confined to the exact
extent which the section of the Act provides. See Attwood v
Minister of Justice and Anor
1960 (4) SA 911 (T) at 914F; Lentell
v Registrar-General and Anor (2)
1979 RLR 465 (A) at 470 F-G.”






Subsection (3)
of s 17 of the Interpretation Act [Chapter 1]
provides:






“(3) Where an enactment repeals
and re-enacts, with or without modification, any provision of any
other enactment, all proceedings
commenced under any provision so
repealed shall be continued under and in conformity with the
provision so repealed”.









Thus, in the present case, the
proceedings having commenced before the Amendment Act became
operative, s 97(3) of the Act, as
amended, did not apply and the
respondent was under no obligation to comply with the ruling of the
senior labour relations officer
pending the determination of the
appeal.










The transitional provision
introduced by s 47(5) of the Amendment Act, which reads:






“Any proceedings that were
commenced in terms of Part XII of the principal Act before the
date of commencement of the Labour Relations
Amendment Act, 2002, or
were pending before the Labour Relations Tribunal on that date, shall
be deemed to have been commenced in
terms of the appropriate
provisions of the principal Act as amended by the Labour Relations
Amendment Act, 2002, and shall be proceeded
with accordingly.”,







was enacted for administrative
reasons and not intended to affect existing rights. Had the
legislature intended otherwise, this
would have been made clear by
the enactment of specific provisions in the body of the Amendment Act
as opposed to a transitional
provision of an administrative
character.






Accordingly this ground of appeal
fails.







The second ground of appeal was
that the Labour Court misdirected itself at law by holding that the
procedure adopted in dismissing
the appellant was proper in the
circumstances.







This ground of appeal strikes me
as odd since it is the appellant, through his legal practitioners,
who suggested, correctly in my
view, that the proceedings be
conducted in terms of the applicable Code of Conduct. This being
so, it is difficult to understand
the cause for the appellant’s
complaint.







The final ground of appeal,
namely, that there was no agreement that the matter should proceed in
terms of the Code of Conduct, raises
no question of law and is not
properly before this Court.







In the result the appeal is
without merit and it is dismissed with costs.



SANDURA JA: I agree.


GWAUNZA  JA:
I agree.


Scanlen
&
Holderness, respondent's legal practitioners