Cainos Chingombe and Tendai Kwenda v City of Harare and Others

The applicants were employed by the City of Harare (first respondent) as Human Capital Director and Finance Director respectively, making them senior officials under the Urban Councils Act. Following a Ministerial audit in 2016 that found negative audit observations, and a subsequent special tribunal led by retired Justice Smith that found irregularities, misconduct and potential fraud, a Special Council Meeting on 20 December 2017 resolved to suspend the applicants. The third respondent (Acting Town Clerk) issued suspension letters dated 31 December 2017 in terms of section 6(1) of the Labour (National Employment Code of Conduct) Regulations, SI 15/2006. The applicants were required to appear before a disciplinary committee. The applicants challenged the validity of their suspensions, arguing they should have been dealt with under section 140 of the Urban Councils Act as senior officials, not under the Labour Act.

• Whether the High Court has jurisdiction to determine the matter or whether it falls under the exclusive jurisdiction of the Labour Court
• Which legislative framework applies to the disciplinary proceedings against senior municipal officials: section 140 of the Urban Councils Act or the Labour Act and National Employment Code
• Whether there is an inconsistency between section 140 of the Urban Councils Act and the Labour Act, and if so, which prevails
• Whether the suspensions issued in terms of the Labour Act regulations were lawful

The application was dismissed. Each party was ordered to bear its own costs.

The Labour Act [Chapter 28:01] applies to all employers and employees in Zimbabwe except those specifically excluded by section 3 (civil servants under the Public Service Act and members of disciplined forces). Municipal employees, including senior officials of local authorities, fall within the scope of 'all employers and employees' under section 3(1). Where two statutes are inconsistent and cannot be reconciled, section 2A(3) of the Labour Act provides that it prevails over any other enactment inconsistent with it. Section 140 of the Urban Councils Act, which provided for summary dismissal and different disciplinary procedures for senior municipal officials, is inconsistent with the Labour Act and has been impliedly repealed by it. The principle of lex posterior derogat priori applies. Disciplinary proceedings against municipal employees, including suspensions, must be conducted in terms of the Labour Act and the National Employment Code (SI 15/2006), not the Urban Councils Act.

The court noted that section 140 of the Urban Councils Act contained repugnant provisions authorizing summary dismissal which would be inconsistent with the Labour Act's protection of employees against unfair dismissal. The court observed that the elaborate procedure in section 140(3)-(5) only referred to an undefined 'inquiry' and did not provide for a disciplinary hearing recognizing the rules of natural justice, particularly the audi alteram partem rule. Mathonsi J commented that applications raising points in limine regarding Labour Court jurisdiction have become routine, noting that the High Court itself has given conflicting signals on jurisdiction since the 2004 decision in Tuso v City of Harare. The court remarked that the applicants were entitled to bring the application as it raised important legal issues requiring settlement, justifying the decision that each party bear its own costs rather than awarding costs on the superior scale.

This case clarifies the application of labour legislation to municipal employees in Zimbabwe, establishing that senior officials of local authorities are subject to the Labour Act and National Employment Code rather than the Urban Councils Act for disciplinary purposes. It confirms the supremacy of the Labour Act over inconsistent provisions in other statutes by virtue of section 2A(3), and applies the principle of implied repeal where two statutes cannot be reconciled. The judgment demonstrates the broad scope of section 3 of the Labour Act following its 2005 amendment, extending labour law protections to previously excluded categories of employees. It also clarifies the High Court's jurisdiction to grant declaratory orders even in employment-related matters, distinguishing this from the Labour Court's exclusive jurisdiction over labour disputes.