Court name
Supreme Court of Zimbabwe
Case number
SC 44 of 2005
Civil Appeal 342 of 2003

Zimbabwe Phosphate Industries Ltd. v Matora and Others (42/03) (SC 44 of 2005, Civil Appeal 342 of 2003) [2005] ZWSC 44 (09 October 2005);

Law report citations
Media neutral citation
[2005] ZWSC 44



8


SC
44/05












REPORTABLE
ZLR (38)



Judgment No. SC 44/05


Civil
Appeal No. 342/03








ZIMBABWE
PHOSPHATE INDUSTRIES LIMITED





v






(1) ELIAS MATORA (2)
CHAMUNORWA MBEU (3) NKOSANA MARUFU (4) K. JANI
(5) CHENJERAI MUTANGADURA
(6) SADSON TAYENGWA
(7) HUPENYU MUTANDIKO








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
MALABA JA & GWAUNZA JA


HARARE,
JANUARY 27 & OCTOBER 10, 2005





G
V Mamvura
, for the
appellant





G
T Chapwanya
, for the
respondents









MALABA JA: This appeal
raises the question whether upon a true construction of s 47(5) of
the Labour Relations Amendment Act
No. 17 of 2002 (“Act 17”) the
intention of the Legislature in enacting s 97(3) repealing and
substituting s 97(3) of the Labour
Relations Act [
Chapter
28:01
] (“the
principal Act”) was to retrospectively take away rights vested in
an appellant in an appeal noted in terms of the appropriate
provisions of the principal Act and pending determination by the
Labour Court on the date Act 17 was promulgated.




The question has to be determined
on these facts:






The appellant instituted
disciplinary proceedings against the respondents who were its
employees, in terms of the employment Code
of Conduct. The
allegation made against the respondents was that they had engaged in
unlawful collective job action. They were
found guilty by the
Disciplinary Committee and dismissed from employment. An appeal to
the Appeals Committee of the Employment
Council for the Chemicals and
Fertilizer Manufacturing Industry (“the Appeals Committee”) by
the respondents was upheld on 25
November 2002 and their
reinstatement ordered.





On
5 December 2002 the appellant appealed to the Labour Relations
Tribunal (“the Tribunal”) in terms of s 97(1) of the principal
Act which gave a person aggrieved by the determination or decision of
a disciplinary body acting under a registered Code of Conduct
a right
to appeal against the determination or decision to the Tribunal
within such time and in such manner as may be prescribed.






At the time the appeal was
noted s 97(3) of the principal Act provided that:





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








On noting the
appeal against the decision of the Appeals Committee the appellant
acquired the right not to reinstate the respondent
pending
determination of the appeal by the Tribunal.






On 7 March 2003 and whilst the
appeal was pending before the Tribunal, Act 17 was promulgated.
Section 83 of the principal Act
which had established the Tribunal
was repealed and substituted with s 84(1) establishing a new court
called the Labour Court.
Section 97(1) of the principal Act was
repealed and substituted with a section bearing the same number, the
provisions of which also
gave a person aggrieved by a determination
or decision made under an employment Code of Conduct the right to
appeal against such
determination or decision to the Labour Court
within such time and in such manner as may be prescribed.






Section 97(3) of the principal
Act now provided that:





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








Section
47(5) of Act 17 which formed part of the savings and transitional
provisions enacted that:





“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”.








It is common
cause that the appeal noted by the appellant against the decision of
the Appeals Committee was a proceeding pending
before the Tribunal on
the date of the commencement of Act 17. On 31 July 2003 the
respondents applied to the Labour Court for
an interim order
directing the appellant to reinstate them in employment without loss
of salary and benefits pending determination
of the appeal against
the decision of the Appeals Committee.






The basis of the application
was the construction of the new s 97(3) of the principal Act by the
respondents as having been intended
to operate retrospectively and
take away the right vested in the appellant at the time it noted the
appeal against the decision of
the Appeals Committee, not to
reinstate them pending determination of the appeal.






On 22 October 2003 a panel of
three Presidents of the Labour Court was persuaded to accept as a
correct statement of the law, the
contention that s 97(3) of Act 17
retrospectively took away the right vested in the appellant not to
reinstate the respondents pending
determination of the appeal and
granted them the interim order. The learned President who wrote the
judgment of the court said:







“The
argument by Mr
Chapwanya
that the legislature intended s 97(3) to have retrospective effect
thereby taking away existing rights is supported by the words
used by
the legislature. In this section and again in s 47(5) the words
used are clear and unambiguous and admit of no other meaning
other
than that the Legislature intended retrospectivity. While the cases
cited by Mr
Mamvura
support the position that there is a general presumption against a
statute being construed as having retrospective effect, all these
cases have a proviso that the general presumption can be rebutted
where a statutory provision is expressly stated to be retrospective
in its operation. In our view s 47(5) clearly expressed this as the
intention of the Legislature…



It
is our finding therefore that s 97(3) as read with s 47(5) has
retrospective effect”.






At the appeal hearing Mr
Mamvura argued
that there was nothing in the language of s 47(5) of Act

17 to
support the
construction adopted by the court

a quo
. Although Mr
Chapwanya
for the respondents, presented a spirited argument in support of the
decision appealed against, the contention that the true construction
of s 47(5) does not reveal an intention on the part of the
Legislature to have s 97(3) operate retrospectively and take away the
right not to reinstate the respondents pending determination of the
appeal is correct.





The
principles applicable in the determination of the question whether or
not a statute is intended to operate retrospectively and
take away
accrued rights have been stated in numerous cases.






In Curtis
v Johannesburg Municipality
1906
TS 308 at 311 INNES CJ said:





“The
general rule is that, in the absence of express provision to the
contrary, statutes should be considered as affecting future matters
only; and more especially that they should if possible be so
interpreted as not to take away rights actually vested at the time of
their promulgation”.






In Bell
v Voorsitter Van Die
Rasklassifikasieraad En Andere

1968(2) SA 678(A) which is in Afrikaans the head note states that:





“It
is clear that our law accepts the rule that, where a statutory
provision is amended, retrospectively or otherwise, while a matter
is
pending, the rights of the parties to the action, in the absence of a
contrary intention, must be decided in accordance with the
statutory
provisions in force at the time of the institution of the action”.






In Agere
v Nyambuya
1985 (2)
ZLR 336 (S) at 338 G – 339A GUBBAY JA (as he then was) stated the
general rule as follows:





“It
is a fundamental rule of construction in our law, dating probably
from Codex 1:14:7, that there is a strong presumption that
retrospective
operation is not to be given to an enactment so as to
remove or in any way impair existing rights or obligations unless
such a construction
appears clearly from the language used or arises
by necessary implication. For instance, where it is expressly
retrospective, or
deals with past events, or concerns a matter of
procedure, practice or evidence. The supposition is that the
Legislature intends
to deal only with future events and
circumstances”.






Lastly in Nkomo
and Anor v Attorney-General and Ors

1993 (2) ZLR 422 (S) GUBBAY CJ at 429 C said:





“Care
must always be taken to ensure that retrospectivity is confined to
the exact extent which the section of the Act provides”.









In holding that s 47(5)
expressed as being the clear intention of the Legislature that the
retrospective effect of the new s 97(3)
of the principal Act 17 was
to take away the right vested in the appellant at the time of its
promulgation not to reinstate the respondents
pending determination
the of appeal the court
a
quo
overlooked the
structure of s 97 of the principal Act.






Section 97(1) was a separate
provision from s 97(3). Its provisions gave a person aggrieved by a
determination or decision of
a disciplinary body the right to appeal
to the Tribunal. The new section 97(1) of the principal Act also
gave a similar right
in respect of appeals to the Labour Court.
Except for the body to which the appeal lay there was no difference
in the substance
of the right created by s 97(1) to the extent that
in s 47(5) of Act 17 the Legislature provided that appeals which were
pending
before the Tribunal on the date of the commencement of Act 17
were to be deemed to have been commenced in terms of the appropriate
provisions of the principal Act as amended. The only appropriate
provision of the principal Act as amended in terms of which the
appeal pending before the Tribunal could be deemed to have been
commenced before the Labour Court was s 97(1).





Section
97(3) of the principal Act before and after the amendment did not
deal with commencement of proceedings or the noting of
appeals to the
Tribunal.






Section 97(3) of the principal
Act before it was amended gave the appellant a clear right not to
reinstate the respondents in their
employment pending determination
of the appeal. In my view s 47(5) which dealt with the commencement
of proceedings or the noting
of appeals in terms of s 97(1), was not
intended to affect the rights vested in the appellant in terms of s
97(3) of the principal
Act at the time of the commencement of Act 17.
An obligation was now imposed on an appellant to act in accordance
with the requirements
of the determination or decision appealed
against pending determination of the appeal.






One cannot construe the
provisions of s 97(3) dealing with substantive rights and obligations
of an appellant as the “appropriate
provisions of the principal Act
as amended” by Act 17 in terms of which proceedings pending before
the Tribunal at the commencement
of Act 17 were to be deemed to have
been commenced. The language of s 47(5) of Act 17 does not support
the contention that it was
the intention of the Legislature to have
the retrospective effect of s 97(3) of the principal Act as amended
take away the right
vested in the appellant not to reinstate the
respondents pending determination of the appeal.






On the question of costs Mr
Mamvura
conceded that each party pay its own costs.







The appeal is allowed. It is
ordered that the decision of the Labour Court dated 24 October 2003
be and is hereby set aside and
substituted with the following order:





“The
application is dismissed with

each party paying its own costs”.






















SANDURA JA: I agree.






























GWAUNZA JA: I agree.















Scanlen & Holderness,
appellant’s legal practitioners






Tizirai-Chapwanya
& Mabukwa
,
respondents’ legal practitioners