Border Timbers International (Private) Limited v The Export Processing Zones Labour Board and Others

Border Timbers International (Private) Limited was an export-oriented door manufacturing company licensed by the Zimbabwe Export Processing Zones Authority. Following a prolonged wage dispute, employees threatened collective job action on 3 August 2005. The company suspended the employees and charged them with misconduct under s 28(c)(iii) of the Export Processing Zones (Employment) Rules, 1998. Internal disciplinary proceedings found the employees guilty and recommended dismissal. The company applied to the Export Processing Zones Labour Board for authority to terminate the employment contracts. On 25 November 2005, the Labour Board dismissed the applications, finding no misconduct established, and ordered reinstatement with full pay and benefits. The company filed a review application in the High Court on 18 January 2006, seeking to set aside the Labour Board's decision. However, by this time, the Labour Amendment Act No. 7 of 2005 had come into force on 30 December 2005, which repealed s 56 of the Export Processing Zones Act and made the Labour Act applicable to export processing zones, giving the Labour Court exclusive jurisdiction over labour matters including review proceedings.

• Whether the High Court had jurisdiction to hear and determine a review application concerning a Labour Board decision made in November 2005, where the application was filed in January 2006 after the Labour Amendment Act came into force on 30 December 2005
• Whether the company acquired a vested right on 25 November 2005 to institute review proceedings in the High Court within eight weeks
• Whether procedural changes brought about by amending legislation apply retrospectively to pending matters
• Whether changes in forum and procedure constitute interference with substantive vested rights

The appeal was dismissed with costs.

A person cannot acquire a vested right in matters of procedure. Questions relating to which courts and within what time proceedings are to be instituted are questions of procedural law, not substantive law. Enactments dealing with procedure apply to pending actions unless a contrary intention is expressed or clearly implied. When amending legislation changes the forum for adjudication (from one court to another) without affecting substantive rights, this is a purely procedural change that applies retrospectively to all actions, pending as well as future. The Labour Amendment Act No. 7 of 2005, by repealing s 56 of the Export Processing Zones Act and granting the Labour Court exclusive jurisdiction over labour matters including review proceedings through s 89(6) read with s 89(1)(d1) of the Labour Act, effected only a procedural change that applied to all review applications filed after 30 December 2005, regardless of when the underlying cause of action arose.

The Court noted that before the Amendment Act came into force, the Export Processing Zones (Employment) Rules, 1998 did not provide a procedure for challenging Labour Board decisions, but parties could have relied on s 26 of the High Court Act to institute review proceedings in the High Court. The Court also observed that the exclusive jurisdiction given to the Labour Court under s 89(6) is limited to matters specifically set out in s 89(1), not all labour matters generally, though the learned Judge in the court a quo had stated the jurisdiction more broadly than necessary. The Court emphasized that had the legislature intended to preserve High Court jurisdiction concurrently with Labour Court jurisdiction, s 89(6) would have been worded to except both courts from the general prohibition.

This case is significant in Zimbabwean labour and administrative law for establishing important principles regarding: (1) the application of procedural changes brought about by amending legislation to pending matters; (2) the distinction between procedural and substantive rights in the context of statutory amendments; (3) the principle that parties cannot acquire vested rights in matters of procedure, including the right to institute proceedings in a particular forum; (4) the interpretation of exclusive jurisdiction provisions in labour legislation; and (5) the retrospective application of procedural amendments that change the forum for adjudication without affecting substantive rights. The judgment clarifies that when legislation transfers jurisdiction from one court to another, this is a procedural change that applies immediately to all matters, including those where the cause of action arose before the legislative change but proceedings were instituted after the change came into effect.