Econet Wireless, a cellular communications company, received a letter on 9 December 2010 from the National Employment Council Communications and Allied Services (third respondent) requiring it to register. The letter contained a Certificate of Registration purportedly issued under sections 65 and 67 of the Labour Act, which had been repealed in 2002. After correspondence raising concerns about the validity of the certificate, a "corrected certificate" was issued reflecting sections 59 and 61 of the Act, but maintaining the original dates. On 9 January 2012, the applicant was advised of the promulgation of Statutory Instrument 1 of 2012 (a Collective Bargaining Agreement) which required employees in the industry to register with the third respondent and pay dues. The applicant refused to register or pay dues, contending that the third respondent was not validly registered and that the certificate had been unlawfully corrected. The applicant sought review of the Registrar of Labour's decisions and the Minister's decision to publish the CBA, as well as condonation for late filing if necessary. The applicant claimed it was proceeding under section 4 of the Administrative Justice Act rather than Order 33 of the High Court Rules.
1. The points in limine raised by the respondents succeed. 2. The court withholds its jurisdiction until such time as the applicant complies with the law. 3. The applicant to pay the respondents' costs on an attorney-client scale.
1. Applications brought under section 4 of the Administrative Justice Act [Chapter 10:28] are sui generis and are not subject to the procedural requirements and time limits of Order 33 of the High Court Rules, which govern review applications. 2. Only the High Court has jurisdiction to entertain applications under section 4 of the Administrative Justice Act and to grant declaratory relief; the Labour Court does not have such jurisdiction. 3. A court will withhold its jurisdiction from hearing a challenge to administrative action where the applicant has failed to comply with the law it seeks to challenge. The principle is that citizens must 'obey the law and argue afterwards.' 4. The Administrative Justice Act does not suspend the operation of laws pending a review of the administrative action leading to their promulgation; compliance with the law remains mandatory until the law is invalidated or set aside.
The court noted that it disagreed with the obiter statement in Mudisi & 4 Ors v Tomana & Ors HH 121/12 suggesting that applications under the Administrative Justice Act should be brought under Order 33 Rule 258. The court observed that if the legislature intended such applications to be brought under Order 33, it would have specifically provided for this. The court also noted that the applicant had multiple options available to avoid non-compliance: it could have challenged the process of promulgation when Government Gazette notices were published in 2006 and 2010, or it could have registered and paid dues while simultaneously mounting its legal challenge. The court observed that not applying the 'clean hands' doctrine would result in chaos and anarchy. The court distinguished the Chikadaya case on the basis that questions of mala fides do not arise when considering compliance with the law—the issue is objective compliance, not subjective intent.
This case is significant in Zimbabwean administrative and labour law for several reasons: (1) It clarifies that applications brought under section 4 of the Administrative Justice Act are sui generis and not subject to the time limits and procedural requirements of Order 33 of the High Court Rules governing reviews; (2) It reaffirms and applies the 'clean hands' doctrine in the context of administrative law challenges, holding that litigants must comply with the law they seek to challenge ('obey the law and argue afterwards'); (3) It establishes that the Administrative Justice Act does not suspend the operation of laws pending review of their validity; (4) It demonstrates the limits of access to justice where a party refuses to comply with statutory obligations, even where the validity of those obligations is challenged. The judgment balances the right to administrative justice with the principle of the rule of law and respect for statutory obligations.