Is the Labour Court to blame for delays?
THIS is the second part of a three parts series article that explores why there are delays in concluding Labour Cases at the Labour Court, more specifically it looks at provisions of section 93(5) and related challenges and brings up legal arguments around these conflicting provisions of the Labour Act.
Section 93(5)(C) go against provisions of section 98(5)(b) which read ‘‘ the labour officer, after consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to conciliate the dispute; as the case may be, shall appoint as an arbitrator a person whose name appears on a list referred to in subsection (6):
Provided that the labour officer who attempted to con ciliate the dispute which is referred to arbitration shall not be appointed as the arbitrator in that dispute.”
In my reading of the law, the separation of roles of conciliator and arbitrator is clear.
Yes, one might argue that in terms of section 93(5)(C) one is not arbitrating but adjudicating, the problem with that argument is that if we go to the spirit of the legislation and the intention of Parliament, the two are not different as they are governed by the same principles in terms of procedure and right to be heard.
We find guidance in the matter Tamanikwa and Others vs Zimbabwe Manpower Development Fund SC33/13 where the Supreme Court said “It is a well established canon of construction that courts should endeavour to reconcile prima facie conflicting statutes as well as apparently conflicting provisions in the same statute.
“Courts therefore do not readily come to the conclusion that there is a conflict and by using all means at their disposal they attempt to effect a reconciliation.
“It is also an established canon of construction that different parts of the same statute should, if possible, be construed so as to avoid a conflict between them.
“See Amalgamated Packaging Industries Ltd v Hutt & Anor 1975 (4) SA 943 at 949H.
“Accordingly, where there are two sections in an Act which seem to clash but which can be interpreted so as to give full force and effect to each, then such an interpretation is to be preferred as opposed to an interpretation that will partly destroy the effect of one of them.
“It is also an elementary principle of construction that the Legislature will not be presumed to take away any acquired rights.
“The intention to do so must be expressed or very clearly implied from the language of the statute. In Principal Immigration Officer v Bhula 1931 AD 323 WESSELS JA stated: <file:///C:sers\Takudzwa\ Documents\ZIMLII\2014\2013%20SC%20 JUDGMENTS\33-13.docx>
“It would be extremely difficult in such a case to say that Parliament has by implication in a later section modified rights which in an earlier section it safeguarded explicitly.
“The implied intention of Parliament must be so clear as to leave no doubt whatever in the mind of the Court. The Legislature is presumed to be consistent with itself”.
In the present case the latter section 93(5) in not capable of being reconciled with the earlier provisions of section 93(5).
This argument is the one that persuades many labour consultants to argue that the Labour Court should have long told Labour Officers and Designated Agents that the latter provisions of section 93(5) are expunged and thus they must stick to the original provisions.
Moreso, given the fact that the latter provisions take away acquired rights of a fair hearing and that was not the intention of the legislature.
At law, acquired rights of citizens cannot be taken away by latter amendments.
Further, it is clear that the latter section 93(5) of the Labour Act sits in conflict with provisions of 98(5)(b) which reads ‘the labour officer, after consulting any labour officer who is senior to him ad to whom he is responsible in the area in which he attempted to conciliate the dispute; as the case may be, shall appoint an arbitrator a person whose name appears on a list referred to in subsection (6).
Provided that the labour officer who attempted to conciliate the dispute which is referred to arbitration shall not be appointed as the arbitrator in that dispute (my emphasis).
This section of the Act is also not capable of being reconciled with the latter section 93(5) which empowers the labour officer and designated agent who conciliated to also adjudicate a thing that prejudices one party given the fact that at conciliation the adjudicator will have expressed an opinion, for reasons given the earlier section 93(5) should prevail over the latter section 93(5) meaning that the latter should be expunged.
Had the Labour Court read the law as I read it, we would not be in the problems we are in.
That is also the thinking of many labour practitioners. We might all be wrong and stand to be corrected.
It is settled practice in interpretation of statutes that where statutes are unclear, vague, or ambiguous the literal rule of interpretation has to be abandoned and the rule of purposive interpretation is resorted to as is in the present case.
Dr K.R Chandrate in his paper “Essential Rules of Interpretation of statutes for company secretaries” wrote Harmonius interpretation of two conflicting provisions in a statute.
“The provisions of a statute should be so interpreted as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them (my emphasis).
“The Court should, when it seeks to ascertain the legislative intent, construe all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole Act, considering every provision in the light of the general purpose and object of the Act itself, and endeavouring to make every part effective, harmonious, and sensible. This means, that the Court should attempt to avoid absurd consequences in any part of the statute (my emphasis) and refuse to regard any word, phrase, clause or sentence superfluous, unless such a result in clearly unavoidable.
“Harmonious interpretation rule is used when two provisions on the same subject are in conflict and cannot be reconciled with each other on plain reading.
“The endeavour in such a situation is to give effect to both and not render either redundant or useless or a dead letter.
“So, if there appears inconsistency between two sections of the same Act, the principle of harmonious interpretation should be applied to avoid a head-on-clash; it should not be assumed that what Parliament has given with one hand, it took away with the other”.
Davies Ndumiso Sibanda can be contacted on: email: stratwaysmail@yahoo. com <mailto:email@example.com> Or cell No: 0772 375 235