Cainos Chingombe and Tendai Kwenda v City of Harare and Others

The appellants were senior officials employed by the City of Harare. Following a special audit revealing allegations of gross mismanagement, a special council meeting was held on 20 December 2017. Pursuant to a resolution at that meeting, the acting Town Clerk (third respondent) suspended the appellants on 31 December 2017 without pay and benefits under S.I. 15/2006 (National Code of Conduct). They were invited to attend a disciplinary hearing scheduled for 15 January 2018. The appellants launched urgent proceedings to interdict the disciplinary hearing, which were not heard as the matter was deemed not urgent. They then launched an application in the High Court seeking a declaratory order that their suspension was unlawful as it contravened section 140 of the Urban Councils Act, which they argued was the applicable law governing discipline of senior municipal officials. The City of Harare opposed, arguing it had acted lawfully under the Labour Act and National Code of Conduct.

• Whether the High Court had jurisdiction to entertain the matter or whether it fell within the exclusive jurisdiction of the Labour Court
• Whether section 140 of the Urban Councils Act or the Labour Act (read with the National Employment Code of Conduct, S.I. 15/2006) applied to the discipline and suspension of senior officials employed by the City of Harare
• Whether section 140 of the Urban Councils Act had been impliedly repealed by section 2A(3) of the Labour Act
• Whether the application was truly for a declaratory order or was in substance a review of an employment decision disguised as a declaratur

The appeal was dismissed with costs. In exercise of its review powers under section 25(2) of the Supreme Court Act, the Supreme Court set aside the High Court proceedings under HC Number 991/18 for want of jurisdiction.

The High Court does not have jurisdiction to entertain employment disputes, even when framed as applications for declaratory relief, as such matters fall within the exclusive jurisdiction of the Labour Court under the Labour Act. Courts must look to the substance and grounds of an application, not merely the form of relief sought, to determine whether it truly seeks a declaratur or is in reality an employment dispute. Section 2A(3) of the Labour Act provides that the Labour Act prevails over any other enactment inconsistent with it. Employees of municipal authorities such as the City of Harare are subject to the Labour Act unless they fall within the specific exemptions in section 3 (those whose conditions are governed by the Constitution, public service members, or disciplined forces). Where an employer has no employment code of conduct, section 12B of the Labour Act requires that the National Employment Code of Conduct (S.I. 15/2006) applies by default to disciplinary matters. Provisions in other statutes (such as section 140 of the Urban Councils Act) that are inconsistent with the Labour Act's protections against unfair dismissal are superseded by the Labour Act in employment matters.

The Court observed that section 140(1) of the Urban Councils Act contains provisions that appear to authorize summary dismissal without a hearing, which would be repugnant to the principles of natural justice (particularly audi alteram partem) and inconsistent with the Labour Act's protections. The Court noted the appellants' counsel's concession on this point and his suggestion that only subsections (2) and (3) of section 140 should be read together with the National Code of Conduct. The Court remarked that it could not envisage a situation where a tribunal would move between different legislative instruments to find provisions that best suit an employee—only one applicable law can govern. The Court also commented that an interpretation giving the High Court unlimited jurisdiction in all civil cases would lead to absurdity, as it would require the High Court to deal with petty workplace disputes and matters requiring specialist expertise, which was not the legislature's intention.

This case clarifies the jurisdictional boundaries between the High Court and the Labour Court in Zimbabwe following the 2013 Constitution. It confirms that despite section 171 of the Constitution conferring broad original jurisdiction on the High Court over civil matters, this does not extend to labour and employment disputes, which fall exclusively within the specialist jurisdiction of the Labour Court. The judgment reinforces that courts must examine the substance of applications rather than their form, and that an application cannot circumvent the Labour Court's exclusive jurisdiction merely by seeking a declaratory order. The case also establishes that the Labour Act, by virtue of section 2A(3), prevails over inconsistent provisions in other legislation (such as the Urban Councils Act) in relation to employment matters. It confirms that municipal employees, including senior officials, are subject to the Labour Act unless they fall within specific constitutional or statutory exemptions. The decision provides important guidance on statutory interpretation where multiple statutes appear to regulate the same subject matter, affirming the supremacy clause in the Labour Act.