This article is based on Chapter 3 of the “Contemporary Employment Law in Zimbabwe, First Edition”.
1.1. Introduction
The Labour Court plays a crucial role in protecting the rights of workers and ensuring that labour laws are upheld. In some cases, urgent chamber applications may need to be made to the court to address pressing labour issues.[1] An urgent chamber application is a request made to the court for an urgent hearing of a matter that cannot wait for the normal court process. The position regarding urgent applications is outlined in Document Support Centre [Pvt] Ltd v Mapuvire[2] as follows:
“Urgent applications are those where, if the courts fail to act, applicants may well be within their rights to suggest dismissively to the court that it should not bother to act subsequently, as the position would have become irreversible to the prejudice of the applicant.”
Such applications are thus usually made in cases where there is a risk of irreparable harm or where there is a need for urgent relief. Urgent chamber applications are as a result dealt with expeditiously.
1.2. The Relevant rule
Rule 18 outlines what must happen if a party is facing an urgent labour dispute and they feel compelled to urgently approach the Labour Court for relief. A party is required to apply to the court and indicate that the matter is urgent.[3] The application must be accompanied by an affidavit in which the applicant outlines the urgency[4] of their dispute.[5] If a lawyer is representing the applicant, it is expected that a certificate of urgency is filed by the lawyer. Once an urgent matter has been received by the Registrar, the rules require that the matter be brought to the attention of the judge.[6]
A judge may then direct that the application be served on the Respondent(s) upon receiving the application from the Registrar.[7] Rule 18 (5) is quite robust as it allows a judge to ensure that a matter is heard in a manner that the judge considers appropriate. The provision is in our view more robust and highly suits the labour dispute resolution process as it ensures that disputes are resolved as soon as practicable in tandem with the court’s position Document Support Centre [Pvt] Ltd v Mapuvire cited above.
1.3. What constitutes urgency?
What constitutes urgency has been defined and elaborated by the courts.[8] It entails that the Applicant must not delay in the enforcement of their rights. This can best be explained by the South African case of Workforce Staffing (Pty) Ltd v Sadan and Others in which the employer had to hire a private investigator to ascertain if its former employees were violating a restraint of trade agreement entered between the parties. Immediately after the violation was confirmed the Applicant sought recourse on an urgent basis. The court recognized the urgency of the matter under that circumstance.[9] It also recognised that a restraint of trade enforcement is generally an urgent matter.
It is crucial to note that urgent chamber applications should only be made in cases where there is a genuine need for urgent relief.[10] The court will not grant such applications if they are frivolous or vexatious. It is also essential to ensure that all the necessary documents and evidence are provided to the court when making such applications.
In Secretary for Higher and Tertiary Education v College Lecturers Association of Zimbabwe & 14 Others,[11] the court argued that there was no urgency in the matter because the applicant was aware of a judgement that became the subject of urgency for more than a year. Prior knowledge that a matter is urgent and not doing anything about it removes the urgency of the case. Urgency that is self-created by the applicant will not be supported by the courts. In Jiba v Minister of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) paragraph 18, it was remarked that “it is equally trite that an applicant is not entitled to rely on an urgency that is self-created when seeking a deviation from the rules”.
Further, it is noted that an urgent application does not work where there is a proper alternative remedy available. In Maphalle v National Heritage Council and Others,[12] the Labour Court of South Africa dismissed an urgent application on the basis that the applicant had an alternative remedy in the form of unfair dismissal proceedings.
Prejudice against the applicant is not the only factor that may allow for the granting of an urgent application. It has been held that the urgency must not only come from prejudice that the applicant may suffer. The court must be put in a position where it is aware that the matter cannot wait.[13]
1.4. Circumstances that may warrant an urgent application.[14]
There are several situations where an urgent chamber application may be an appropriate procedure to make use of in the Labour Court of Zimbabwe. Each case will depend on its circumstances, but arguably, the following circumstances may warrant the procedure of an urgent chamber application:
- Relief that is Interdictory or declaratory in Nature
An interdict is an order granted by the court to prevent a party from doing something. The Labour Court is not statutorily allowed to grant interdicts or declaratory orders in the manner provided for in the High Court Act. This does not however preclude the court from issuing relief that is interdictory and declaratory in nature.[15] In the labour context, interdictory and declaratory reliefs may be used to prevent an employer from acting against an employee in a manner that may be harmful or discriminatory.[16] An employee who has been unfairly dismissed may seek relief to prevent the employer from replacing him or her before the dispute has been resolved. In the same vein, the employer may want to urgently stop an employee from working for a competitor in violation of a restraint of trade agreement.[17] Every case will depend on its facts.
Urgent reinstatement
In some cases, an employee may seek urgent reinstatement if they have been unfairly dismissed or suspended from work. This may be necessary if the employee is facing financial hardship or if there is a risk of irreparable harm. In such cases, an urgent chamber application may be made to the court to seek an order for immediate reinstatement pending the finalisation of the dispute.
Urgent payment orders
An urgent payment order is a request that can be urgently made to the court for an order to compel an employer to pay outstanding wages or benefits owed to an employee. This may be necessary if the employee is facing financial hardship or if there is a risk of irreparable harm. An urgent chamber application may be made to the court to seek an order for immediate payment pending the finalization of the dispute.
Urgent injunctions
An injunction is an order granted by the court to prevent a party from doing something or to compel them to do something. In the labour context, injunctions are often used to prevent an employer from taking action that may be harmful or discriminatory towards an employee. For example, an employee who has been subjected to sexual harassment may seek an injunction to prevent the employer from continuing such conduct. Further, an employee may urgently want to compel a LO or a DA to finalise a dispute.
1.5. Bottom line
Urgent chamber applications play a crucial role in ensuring that urgent labour issues are addressed promptly by the Labour Court of Zimbabwe. These applications should only be made in cases where there is a genuine need for urgent relief and all necessary documents and evidence should be provided to the court. The court will deal with such applications expeditiously to ensure that justice is served.
[1] In Dilwin Investments [Pvt] Ltd v Jopa Enterprises Co Ltd HH 116/98 the court said: “A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants. For instance, where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”
[2] Document Support Centre [Pvt] Ltd v Mapuvire 2006 [2] ZLR 240 [H].
[3] Rule 18(1) of the Labour Court Rules, 2018.
[4] The importance of an affidavit in urgent applications was explained in Solidarity obo Members and Others v SEESA (PTY) Ltd (J 37/22) [2022] ZALCJHB 111 wherein the South African Labour Court noted that a case of urgency must be shown in the founding affidavit failure of which the application must fail.
[5] Rule 18(2) of the Labour Court Rules, 2018.
[6] Rule 18(3) of the Labour Court Rules, 2018.
[7] Rule 18(4) of the Labour Court Rules, 2018.
[8] See Kalayi Sikhaphakhapha Njini & Berthilde Juliet Njini v Solwayo Ngwenya and Bulawayo City Council HB 190/11 where it was held that: “The court can only exercise its discretion in determining the urgency of the matter at hand and that discretion can only be exercised on the basis of facts.”
[9] See Workforce Staffing (Pty) Ltd v Sadan and Others (J488/23) [2023] ZALCJHB 107 on paragraph 13 wherein the court observed that: “Clearly, the applicant did not rest on its laurels when its letter to the third respondent was not favoured with the response. It went ahead to contract the services of the private investigator and his findings enabled it to launch this application. In my view, the respondent’s contention that urgency has been squandered by the dilatory conduct on the part of the applicant is devoid of merit. I, accordingly, accept that the matter is urgent and deal with it as such.”
[10] Document Support Centre [Pvt] Ltd v Mapuvire 2006 [2] ZLR 240 [H].
[11] Secretary for Higher and Tertiary Education v College Lecturers Association of Zimbabwe & 14 Others LC/H/547/13.
[12] Maphalle v National Heritage Council and Others (J 929 / 2022) [2022] ZALCJHB 99.
[13] See Dexprint Investments (Pvt) Ltd v Ace Property and Investments HH 120/02.
[14] We have deliberately used the word “may” in this subsection because the scenarios we discuss herein are hypothetical but not necessarily remote.
[15] In TN Harlequin Luxaire Limited V Mberikunashe Masvimbo and 14 Others SCB 84-22 it was held: “While s 14 of the High Court Act captures this remedy in its broadest and classical form as a “gentle order” which may be issued with or without any consequential relief, there is absolutely no doubt in my mind that the Labour Court in its daily operations does routinely issue declaratory orders, holding, for example, that an employee has been wrongfully dismissed or certain actions constitute unfair labour practices and then proceeding to grant consequential relief.” (Own Emphasis).
[16] In Chris Stylianou (2) Fred Driver and Sons (Private) Limited (3) D.R. Hendry (Private) Limited v Moses Mubita and 25 Others SC 7/17 it was argued that the Labour Court of Zimbabwe being a creature of statute does not have the powers to issue an interdict.
[17] See Workforce Staffing (Pty) Ltd v Sadan and Others discussed above.