Court name
Supreme Court of Zimbabwe
Case number
SC 83 of 2005
Civil Appeal 25 of 2005

Sagitarian (Pvt) Ltd. t/a ABC Auctions v Workers' Committee of Sagitarian (Pvt) Ltd. (25/05) (SC 83 of 2005, Civil Appeal 25 of 2005) [2006] ZWSC 83 (05 February 2006);

Law report citations
Media neutral citation
[2006] ZWSC 83
















REPORTABLE
ZLR (70)


Judgment
No. SC 83/05


Civil
Appeal No. 25/05








SAGITARIAN
(PRIVATE) LIMITED t/a ABC AUCTIONS





v





THE
WORKERS’ COMMITTEE OF SAGITARIAN (PRIVATE)
LIMITED








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & GWAUNZA JA


HARARE,
NOVEMBER 1, 2005 & FEBRUARY 6, 2006








E
Mushore
, for the
appellant





J
Mambara
, for the
respondent









GWAUNZA JA: The appellant noted
an appeal to the Labour Court against an arbitral award made in
favour of the respondent. Pending
the determination of the appeal,
the respondent sought interim relief in the form of an order for the
enforcement of the arbitral
award, in terms of the old s 97(4) of
Labour Relations Act [
Chapter
28:01
]. The court a
quo
made an order for
the partial payment of the award to the respondent.






The appellant was dissatisfied
with the order and has now appealed to this Court.





The
appellant gives three grounds of appeal, namely, that the Labour
Court erred in holding:






(i) that it had jurisdiction to
hear the application for interim relief;



(ii) that the balance of
convenience favoured the granting of the interim relief sought by the
respondent; and


(iii) that
the appellant did not have good prospects of success on appeal.





In
relation to the first ground of appeal the appellant contends, and is
not seriously challenged by the respondents, that its appeal
to the
Labour Court had the effect of suspending the enforcement of the
arbitral award. The respondent’s application for interim
relief
pending the determination of the appeal to the Labour Court, is in
effect evidence of its acceptance of this principle.






The real dispute between the
parties concerns the interpretation of s 97(4) of the Labour
Relations Act which,
albeit
now repealed, was then applicable to the case. It is pertinent to
note that even though s 97 of the Act was entitled “Appeals
to the
Labour Court” it listed in its subsection (1) four specific
instances in which an aggrieved person could appeal to the Labour
Court under that section. Its subsection (2) outlined the powers of
the Labour Court when considering an appeal filed in terms
of
subsection (1). Subsection 3 of s 97 specifically provided that an
appeal filed in terms of subsection (1) would not have the
effect of
suspending the determination or decision appealed against.






Subsection 4 made no reference to
subsection (1) and read as follows:





(4)
Pending the determination of an appeal the Labour Court may make
such interim determination in the matter as the justice of the
case
requires.





The
appellant’s argument is that subsection (4) referred only to an
appeal filed in terms of s 97. The arbitral award, the appellant
contends, was made in terms of s 98 of the Act and therefore fell
outside the ambit of subsection (4) of s 97.






The respondent is of a different
view, it being its contention that subsection (4) of section 97
referred to all appeals filed with
the Labour Court under the Act and
not only those filed under its sub section(1). The President of the
Labour Court was persuaded
by the respondent’s argument. Relying
on a simple reading of the same subsection, the learned President
expressed the view that
had the Legislature intended subsection (4)
of s 97 to apply restrictively, it would have specifically indicated
so by referring
to “an appeal in terms of subsection (1).” She
gave another reason for her conclusion, as follows;





“The
provisions of s 2A (of the Act) give the purpose of the Act as the
advancement of social justice and democracy in the workplace.
It is
thus inconceivable that the Labour Court could be given power to make
interim determinations as the justice of the case requires
in cases
where appeals do not suspend decisions appealed against and not in
any other case where the decisions appealed against are
suspended by
the noting of an appeal.”









On the face of it, the
reasoning of the court
a
quo
points to an
apparent legislative ambiguity in that care seems to have been taken
to specifically restrict the operation of some
of the subsections of
s 97 to appeals outlined in its subsection (1), while no such care
was taken with subsection (4). It was
thus not unreasonable under
such circumstances to conclude that subsection (4) was not meant to
apply restrictively to appeals in
terms of subsection (1) of s 97.







The matter, however does not fall
to be determined solely on what the court
a
quo
referred to as
“the simple grammatical meaning” of the words employed in
subsection (4). There is in my view merit in the appellant’s
contention that the character of the provision in question, that is a
subsection as opposed to a section, raises the need to consider
what
are referred to as other ‘non-linguistic aids’
1
inorder to ascertain the true intention of the Legislature.






The one aid that is more often
referred to is the
context
in which the words to be interpreted, are used. The appellant, in
my view correctly, contends thus in its heads of argument;





“A
subsection is part of a section. It is submitted that in
interpreting a subsection the court must read same in the context,
first
of all, of the section. If the interpretation placed on the
subsection is in contextual harmony with the rest of the section and
does not offend against or contradict any other provisions of the
statute it should be accorded that interpretation.”








I
am in this respect persuaded by the appellant’s contention that
restricting subsection (4) of s 97 to appeals made in terms
of
subsection (1) of the same section would have been in perfect harmony
with the other sections of s 97 and would not have led to
any
absurdity.






Other authorities emphasise the
same point, in different words. In
Thornton’s
“
Legislative
Drafting
” 2nd
edition at p 60, it is stated:





“A
section, of whatever length, must have a unity of purpose. It may
consist of one sentence or more; but if it consists of more
than one
sentence, the general rule is that each should be placed in a
separate numbered subsection. Separate subsections must
all have
some relevance to the central theme which characterises the section.”





Applied
to the facts of the case before us, it is evident that the central
theme characterising s 97 of the Act were the appeals specified
in
subsection (1). Subsection (4), therefore, fell to be interpreted
in such a way that it had relevance to this theme.






Many years earlier, in Director
of Education
(Transvaal)
v McCagie,
1918 AD 616,
INNES
CJ appropriately put the same argument thus:






“Where
general words have a wide meaning, their interpretation must be
affected by what precedes them; general words following upon
and
connected with specific words are more restricted in their operation
than if they stood alone……..
They
are
coloured
by their context
and
their meaning is cut down so as to comprehend only things of the same
kind as those designated by specific words – unless there
is
something to show that a wider sense was intended.” (my emphasis)









In casu,
the words in subsection (4) of s 97 can appropriately be referred to
as general words. Following upon the reasoning of INNES CJ,
above,
the words are and must be “coloured” by their context, such
context being appeals in terms of subsection (1) of s 79.





I
am satisfied this interpretation accords with the intention of the
legislature and that such intention influenced the arrangement
of the
words in a subsection, rather than a “stand alone” section.






Further authority for the
proposition that words alone are not always decisive in ascertaining
the intention of the Legislature is
to be found in “
Principles
of Legal Interpretation – Statutes, Contracts and Wills
”
at p 178 where it is stated;






“In
South Africa, the courts generally follow the theory (referred to as
the subjective or
will
theory) that behind every enactment there is a purpose or intention
(
Regelsberger Pandekten
143 sqq) and principles have evolved as to how to determine that
intention. Account is taken,
inter
alia,
of the meaning of the language, but it is not always decisive.
Non-linguistic indications of meaning such as the
context
in which the language is used, the surrounding circumstances and the
meaning at the date of the enactment, are considered as aids
to
interpretation. Indeed
Grotius
says:





‘The
non-linguistic indications of the purpose of the legislation may be
so lucid that they should be preferred to the literal meaning
of the
language used.’” (my emphasis)






This dictum,
too, can appropriately be applied to the circumstances of this case.
There is little doubt that the purpose of s 97 was to set
out the
context in which certain specific appeals to the Labour Court were to
be prosecuted. I am satisfied the legislature did
not intend
subsection (4) to be given an interpretation that embraced situations
falling outside of this context. Appeals filed
with the Labour Court
in terms of s 98 of the Act, as was the one in
casu,
clearly fell outside the context set out in s 97. It follows that
the Labour Court did not have the authority to hear an application
for interim relief in terms of s 97(4), pending its determination of
an appeal filed in section 98.





One
other matter calls for comment. The learned President of the Labour
Court found it inconceivable that the court could, in
terms of the
Act, be given power to make interim determinations where appeals did
not suspend decisions appealed against and not
in any other case
where decisions appealed against were suspended by the noting of an
appeal.





This
argument, in my view, flows from the presumption that the only
interim determinations envisaged under subsection (4) of s 97
were
those to do with enforcement of the order appealed against. That
clearly cannot be the case. Appeals filed in terms of s
97 did not
have the effect of suspending the determination appealed against.
Considering, as I have found, that subsection (4)
was restricted to
appeals specified in s 97 (1), it can be assumed that the Legislature
must have envisaged other types of interim
relief “as the justice
of the cases required”, for it to have framed subsection (4) of s
97 in the way it did. I am not persuaded
there was anything
“inconceivable” about the powers given to the court under that
provision.





All
in all, I am satisfied there is merit in the appeal, which therefore
succeeds.






The determination on the
appellant’s first ground of appeal makes it unnecessary for me to
consider the other two grounds of appeal.





In
the result, it is ordered as follows:





1. The
appeal succeeds with costs.







2. The decision of the Labour
Court is set aside and substituted with the following:






“The
application be and is hereby dismissed.”






SANDURA
JA: I agree.














CHEDA
JA: I agree.






Wintertons,
appellant’s legal practitioners


Kwenda
& Associates
,
respondent's legal practitioners


















1
See
below at page 7