Nokuthula Moyo v Norman Gwindingwi N.O and Dairiboard Zimbabwe (Pvt) Ltd

The applicant was employed by the second respondent (Dairiboard Zimbabwe) as a quality controller. She was charged with neglect of duty in May 2006 under a code of conduct. Following an internal disciplinary hearing, she was found guilty and dismissed from employment. She appealed to the Manufacturing Director, whose decision was dismissed. Her further appeal to the Director of Corporate Services was also unsuccessful on 22 June 2006, who advised her that her next level of appeal was to the Labour Court in terms of the Code of Conduct. Instead of appealing to the Labour Court, the applicant filed an urgent application in the High Court seeking to review and set aside the dismissal and to prevent eviction from a company house at No. 5 Lourie Road, Burnside, Bulawayo, which she occupied by virtue of her employment. A provisional order was granted on 13 July 2006 interdicting the eviction pending determination of the matter.

• Whether the applicant had exhausted domestic remedies before approaching the High Court
• Whether the High Court had jurisdiction to hear the matter or whether exclusive jurisdiction lay with the Labour Court in terms of section 89(6) of the Labour Act [Chapter 28:01]
• Whether the occupational right over the company house was sufficiently intertwined with the employment contract to constitute special circumstances justifying bypassing domestic remedies
• Whether the cause of action and remedy were provided for in the Labour Act or at common law

The application was dismissed with costs. The provisional order granted on 13 July 2006 was discharged.

The binding legal principles established are: (1) Domestic remedies in employment disputes include appeals to the Labour Court as provided for in codes of conduct and must be exhausted before approaching other courts unless special circumstances exist. (2) Section 89(6) of the Labour Act [Chapter 28:01] expressly and unambiguously ousts the jurisdiction of all courts other than the Labour Court in matters falling under its purview. (3) Where the cause of action and remedy are provided for in the Labour Act, the Labour Court has exclusive jurisdiction and the High Court's jurisdiction is ousted. (4) An employee's occupational right to employer property that is interdependently linked to the employment contract falls within the exclusive jurisdiction of the Labour Court, as one cannot be decided without deciding the other. (5) The intertwining of employment termination and occupational rights does not constitute special circumstances justifying bypassing domestic remedies and approaching the High Court early.

The court made obiter observations disagreeing with the decision in Chawora v Reserve Bank of Zimbabwe, which had criticized the approach in Tuso v City of Harare. Mathonsi J stated that he respectfully disagreed with the view that there is no specific provision ousting the High Court's jurisdiction, commenting that 'This court does not possess the machinery to jealously guard its inherent jurisdiction where the legislature has specifically taken it away.' The court also expressed approval for the interpretations in Tuso v City of Harare, DHL International Ltd v Madzikanda, and Medical Investments Ltd v Pedzisayi regarding the Labour Court's exclusive jurisdiction. The court noted that it granted a consolidation order to save the applicant's case after she had failed to comply with a previous directive to file a separate review application.

This case is significant in Zimbabwean labour law jurisprudence for clarifying the exclusive jurisdiction of the Labour Court over employment-related disputes under section 89(6) of the Labour Act [Chapter 28:01]. It reinforces the principle that litigants must exhaust domestic remedies, including appeals to the Labour Court, before approaching the High Court. The judgment also clarifies that where an employee's occupational rights to employer property are interdependently linked to the employment contract, the Labour Court has exclusive jurisdiction over both matters. The case contributes to the development of the doctrine that the High Court's jurisdiction is ousted in matters where the cause of action and remedy are provided for in the Labour Act, even where property rights are involved.