Court name
Supreme Court of Zimbabwe
Case number
SC 42 of 2005
Civil Appeal 221 of 2004

Midlands State University Council v Midlands State University Lecturers Association (21/04) (SC 42 of 2005, Civil Appeal 221 of 2004) [2005] ZWSC 42 (02 October 2005);

Law report citations
Media neutral citation
[2005] ZWSC 42


REPORTABLE (35)




















Judgment No
SC 42/05


Civil Appeal No 221/04

















MIDLANDS
STATE UNIVERSITY COUNCIL v MIDLANDS STATE
UNIVERSITY LECTURERS ASSOCIATION











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ, CHEDA
JA & ZIYAMBA JA


HARARE MAY 5 &
OCTOBER 3, 2005








J.C. Andersen S.C.,
for the appellant





G.M. Gijima, for
the respondent









CHIDYAUSIKU CJ: The facts of this matter, which are common
cause, are as follows. The respondent is an association of
lecturers
employed by Midlands State University. The Midlands State
University is represented in this matter by the appellant which is
the
Council of the University.





A dispute arose
between the parties as to the benefits payable by the appellant to
the respondent’s members. The respondent’s
members engaged in a
collective job action. The appellant applied for a show cause order
to the Labour Court. The parties consented
to the matter being
referred to compulsory arbitration in terms of the Labour Act
[Chapter 28:01] (hereinafter referred to as the
Act). The consent
order provides as follows:-






“1. The respondent’s members’ Collective Job Action embarked on
on the 22nd August 2003 and terminated on the 6th
October 2003 was illegal and unlawful for want of compliance with the
provisions of the Labour Act.





2. Both parties consent
to the issue that gave rise to the Collective Job Action being
referred to compulsory arbitration in terms
of Part XII of the Act.





3. On or before the
14th October 2003 each party appoints its own arbitrator
and the two arbitrators appointed shall appoint a third arbitrator
who shall
be the chairperson.





4. Arbitration on the
matter shall commence by the 20th October 2003.






5. The arbitrators shall determine the matter on or before the 21st
November 2003.”









Three arbitrators were duly appointed to determine the dispute and
made the following award:-






“1. We award for the lowest grade lecturer, a staring salary of $1
200 000 per month, plus 15% transport allowance and 15% housing
allowance, a total package of $1 560 000 per month, with effect from
1 July 2003.





2. We award for each of
the other grades of academic staff as shown in the table set out in
the circular letter to State Universities
from the Permanent
Secretary for Higher and Tertiary Education dated 22 August 2003, a
proportionate increase.





3. We award an
increment of 30% on basic salaries with effect from 1 October 2003.”









In making the determination the arbitrators admitted to facing a
number of constraints. Among the constraints the arbitrators faced
were firstly, that the government or more specifically the Minister
of Higher and Tertiary Education was not a party to the proceedings
and yet, in their view, it lurked in the background as it is the
paymaster of all State Universities. Secondly, separate arbitration
awards had been made to other State Universities and thirdly, both
parties indicated that they did not wish to address the arbitrators
in support of their cases. The parties left it to the arbitrators
to decide the matter on the papers.





The arbitrators adopted
the following approach to these constraints:-






“The chain of financial authority for state universities is one of
the major weaknesses. The staff have to negotiate with the
University authorities. The University authorities have to
negotiate with the Ministry of Higher and Tertiary Education. They
are not even allowed to increase their incomes by charging students
economic fees. Fees are controlled by Government at ridiculously
low levels. And finally that Ministry has to negotiate with the
Ministry of Finance and Economic Development. It is apparent
to us
that the University authorities in the present case are in sympathy
with the claims of the academic staff. The only objection
they have
put in the face of those claims is that they fear they will not get
the funds from the Ministry to pay the salaries and
allowances
sought.





We have no indication
as to where lie the sympathies of the Ministry of Higher and Tertiary
Education, but we know they are constrained
ultimately by the Budget,
and we have heard the views of the Minister of Finance on the
question of a Supplementary Budget.





Our mandate from the
Labour Court is simply to arbitrate upon the issues which gave rise
to the dispute. Those issues were salaries
and allowances. We are
therefore required to determine what are fair and reasonable salaries
and allowances payable to academic
staff at Midlands State University
with effect from 1 July 2003. We cannot be influenced by the
attitude of a third party. And
in any event, insofar as that third
party is the government of the country, we must assume that the
government is prepared and indeed
anxious to see academic staff
adequately rewarded so that University standards are not just
maintained, but significantly improved.
Our Universities are in an
appalling state. They need a rescue operation, not a financial
garrote.





We cannot assume that
the government will follow political policies regardless of the
economic impact of those policies upon its people.
We will
therefore proceed on the basis that some means will be found to fund
the level of salaries and allowances we award as fair
and
reasonable.”









Having adopted this approach the arbitrators made the determination
I have set out above.










The appellant was dissatisfied with the determination of the
arbitrators and noted an appeal to the Labour Court. The appeal
was
noted in terms of s 98(10) of the Act. In terms of the Labour
(Settlement of Disputes) Regulations Statutory Instrument 217/03
an
appeal has to be noted within 14 days. The determination was handed
down on the 19th December 2003. The appellant noted its
appeal on 17 February 2004. Thus the appeal was out of time. The
appellant’s legal
practitioner was under the mistaken belief that
the appellant had 3 months within which to note an appeal in terms of
s 98 of the
Arbitrators Act [Chapter 7:15]. Upon realizing the
mistake the appellant applied for condonation of the late noting of
an appeal
or for an extension of time within which to note an appeal.
The application was made to the Labour Court. The Labour Court
accepted
that the delay was not in-ordinate and the explanation for
the delay plausible. However, the Labour Court was of the view that
the appellant’s prospects of success on appeal were non-existent
and refused the application on that basis.





The appellant was
dissatisfied with the outcome and appeals to this Court upon the
following grounds set out in the Notice of Appeal:-






“1. The learned Honourable President of the Labour Court (herein
called The President) erred and was completely misdirected when
he
dismissed the appellant’s application for condonation to file its
Notice of Appeal out of time on the basis that the appeal
had no
prospects of success as it was based on a question of fact, and not
law.





2. The learned
Honourable President erred and was misdirected when he ruled that the
Labour Court could ‘not order the Government
to do what it (was)
not legally obliged to do’ whereas there was absolutely no argument
nor prayer for the Labour Court to order
Government to do anything.
The application was among other grounds, for the Arbitral Award, to
be set aside on the basis that Government,
an interested party and
the true paymaster of the respondent was not a participant in the
Arbitration proceedings. The argument
was that this was a basis
upon which the Arbitral Award should be set aside.





3. The court a quo
erred and was misdirected when it made a finding that appellant had
used the wrong forum in that the basis of its appeal was based
on a
question of fact and not law.





4. The learned
Honourable President erred in completely ignoring, and not
addressing, nor alluding to, nor distinguishing, nor discrediting,
nor applying his mind to the plethora of eminent legal authorities
that were furnished to him, that clearly, in no uncertain terms,
made
it clear that appellant’s Grounds of Appeal were based on a
question of law, and not fact. This misdirection is made grossly
glaring by the fact that not even one single legal authority was
furnished by the court a quo in support of its insupportable
finding.





5. The Honourable
President erred and misdirected himself when he made an order for
costs against appellant.”









The above grounds of appeal were subsequently amended without, in
my view, adding substance to the issues that fall for determination
by this Court.





The issue that falls
for determination by this Court is aptly summarised by Mr Andersen,
for the appellant, in paragraph 12 of his Heads of Argument which
reads:-






“The essential issue between the parties is as to whether it was
competent for an award to be made for increases which had not
been
approved by the responsible Minister.”









In dismissing the application for the extension of time in which to
note an appeal the learned President of the Labour Court reasoned
thus:-






“However applicant has difficulties concerning the merits of its
case. The heart of applicant’s case on the merits is set out
in
Mr Manners Jaravaza’s supporting affidavit dated 26th
March 2004 which in paragraph 12 reads as follows:






‘Applicant submits that it has bright prospects of success on
appeal as it is obvious that the salary dispute can never be resolved
without the inclusion and participation of Government. It is a
matter of common knowledge and public record that applicant relies
on
funding from Government. Applicant on its own is hopeless in
addressing or enforcing the Arbitral Award.’






The same point is applied in the grounds of appeal by the averment
that the award should be set aside because of respondent’s failure
to cite the Government when it initiated proceedings in this matter.
But the point, which is well made in respondent’s Heads
of
Argument, is that the Government is not legally obliged to
assist the applicant financially. The applicant was established in
terms of the State University In The Midlands Act [Chapter
25:21] (promulgated the Act 4 of 1999 hereafter called the Act). In
terms of section 4(2) of the Act the applicant itself
is given powers
to enter into contract, to appoint its staff, to take fees and to
borrow monies for any purpose which applicant’s
council thinks fit.
The Act gives the applicant legal responsibility for its
financial affairs. Nowhere in the Act is the Government saddled
with an obligation to bankroll the applicant.
Given this scenario
joinder of the Government does not achieve anything. The
arbitrator/s of this court cannot order Government
to do what it is
not legally obliged to do. Government may well have been
funding the applicant and applicant may have no other source of
funding but that does
not change the legal position.”









In essence the learned President concluded that the appellant was a
legal persona with capacity to employ the respondent and
determine the respondent’s salaries without the consent of the
Minister.





Mr Andersen
submitted that it is a requirement of the law that the Minister’s
consent be obtained before the appellant can increase the salaries
of
the respondent’s members. In this regard he relied on the case of
PTC Management Employees Workers’ Committee v PTC & Anor
1998 (1) ZLR 440 (H) at 450A-B. He argued that in that case it was
pointed out that in terms of s 39 of the Audit and Exchequer
Act
[Chapter 22:03] increases in salary could not be made without the
Minister’s approval. He also sought to rely on sections
34,35,36
and 37 of the Audit and Exchequer Act and s 109(6) of the
Constitution of Zimbabwe.





Section 33 of the Audit
and Exchequer Act reads:-






“33. No payment of expenditure to be incurred without approval





Subject to this Act,
no designated corporate body shall commit itself to or incur –





(a) …






(b) expenditure other than capital expenditure unless provision
therefore has been made in revenue and expenditure budget approved
in
terms of this part or such expenditure has been approved by the
appropriate Minister.”









Section 34 provides for the submission of budgets in respect of
revenue and expenditure for approval and budgets approved may be
varied in terms of sections 36 and 37. The Constitution provides
generally that there be no expenditure from the consolidated revenue
or other public funds without approval. Section 109(6) of the
Constitution in particular provides that no law shall increase
or authorise an increase in salaries in respect of the “Public
Service” unless the Minister has agreed thereto.
Mr Andersen
also argued that “Public Service” is widely defined in s 12 as
the service of the State which would include the state Universities.






Mr Gijima on the other hand submitted that s 109(6) of the
Constitution cannot apply to members of the respondent because
“Public Service”
as defined in s 113 of the Constitution does not
include the members of the respondent. He argued that the members
of the respondent
were not included in the definition of “Pubic
Service” which reads in the appropriate parts that:-







“’Public Service’ means the service of the State but does not
include –






(c) service as a member of any Commission established by this
Constitution or body corporate established directly by or under any
Act of Parliament for special purposes specified in that Act …”









He submitted that the Midlands State University was established in
terms of the Midlands State University Act [Chapter 25:21],
Act 4 of
1999 for special purposes specified in that statute. Accordingly
this section of the Constitution does not apply to the
parties in
this matter. Mr Gijima noted, quite correctly in my view,
that this section of the Constitution is concerned with the making of
a law and not salary increments
which are at issue in this case.





Mr Gijima
further submitted that the appellant is not a parastatal but a body
corporate with an independent legal persona. It is run by
the Council whose functions are set out in s 11 of the Midlands State
University Act, in particular, s 11(1)(g) of
that Act provides that:-






“(1) Subject to this Act and the Statutes, the Council shall –





(g) cause to be
prepared annually estimates of income and expenditure for the
following financial year.”









There is no provision in the Midlands State University Act for
requiring the Council to submit any statements of financial estimates
to the Minister nor is there a provision for the approval of the
Minister to be sought for any financial purpose unless he has
designated
certain employees. The employees designated are those in
grade one and two and some in grade 3. The respondent’s members,
as
lecturers, are not included and are in grade 6.





Mr Gijima further
submitted that the Audit Act does not further the case of the
appellant as Part VI of the Act deals with statutory bodies.

Section 32 of the Audit Act reads:-






“In this Part –





‘designated corporate
body’ means –





(a) any statutory body;
or






(b) any corporate body or company in which the State has a
controlling interest, whether by virtue of holding or controlling
shares
therein by virtue of a right of appointment of members to the
controlling body thereof or otherwise;






and which is prescribed to be a designated corporate body for
the purposes of this Part.”









Mr Gijima contended that it had not been argued or averred
by the appellant that the Midlands State University is included in
the description
of designated corporate body that was prescribed.





It would appear to me
that the legal propositions made by both counsel are correct. Mr
Andersen’s submissions were predicated on the assumption
that the Midlands State University is a designated corporate body
which is prescribed
. There is no basis for the court to make
that assumption without which Mr Andersen’s contention
cannot succeed. The PTC Management Employees Workers’
Committee
case, supra, which Mr Andersen sought to
rely on involved a designated corporate body which was prescribed.
I accept, as correct, Mr Gijima’s contention. On that
basis I agree with the conclusion of the learned President of the
Labour Court that the appeal has no prospects
of success and the
application for condonation was correctly dismissed on that basis.





The appellant also
argued that it was impossible for it to pay the award. I agree with
the learned President of the Labour Court
that the issue of the
capacity of the appellant to pay the award is an issue of fact that
could only be determined by the arbitrators
and no appeal to the
Labour Court on an issue of fact can be entertained by the Labour
Court. The appellant elected not to give
evidence of its capacity
to pay the demanded salary increments. It elected to have the
arbitrators determine that issue as best
as they could on the papers.
There is nothing on the record to show that on the papers before the
arbitrators, the appellant had
established its inability to pay the
increases.





The President of the
Labour Court was correct in concluding that in terms of the Midlands
State University Act, the Minister or
the government has no legal
obligation to pay the salary increases to the respondent. Neither
the arbitrators, nor the Labour Court
nor indeed this Court can issue
an order obliging the government to pay the salary increases to the
respondent. The remedy to the
anomaly making the government the de
facto
paymaster while the appellant is the de jure
paymaster of the respondent is in the hands of the government that
should amend the law to remove the anomaly.





In the result the
appeal is dismissed with costs.


















CHEDA
JA: I agree.











ZIYAMBI JA: I
agree.











Dzimba, Jaravaza &
Associates
, appellant's legal practitioners


Danziger &
Partners,
respondent's legal practitioners