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Mubita Mwanuka V ArmaGuard Security

The Court of Appeal for Zambia issued a judgment overturning its earlier ruling regarding jurisdiction over employment claims. In its initial ruling, the Court had found that all employment claims must be filed in the High Court's Industrial Relations Division. However, upon further review of precedents from the Constitutional Court and Supreme Court, the Court of Appeal found its earlier ruling to be in error. Specifically, the Constitutional Court had previously held that the Industrial Relations Division maintains its own procedures under the Industrial Relations Act, not the High Court Rules, until new legislation is passed. Therefore, employment claims that were previously filed in the High Court general list could still validly be filed there. As a result, the Court of Appeal set aside its earlier

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428 views3 pages

Mubita Mwanuka V ArmaGuard Security

The Court of Appeal for Zambia issued a judgment overturning its earlier ruling regarding jurisdiction over employment claims. In its initial ruling, the Court had found that all employment claims must be filed in the High Court's Industrial Relations Division. However, upon further review of precedents from the Constitutional Court and Supreme Court, the Court of Appeal found its earlier ruling to be in error. Specifically, the Constitutional Court had previously held that the Industrial Relations Division maintains its own procedures under the Industrial Relations Act, not the High Court Rules, until new legislation is passed. Therefore, employment claims that were previously filed in the High Court general list could still validly be filed there. As a result, the Court of Appeal set aside its earlier

Uploaded by

Nkumbu kaluwe
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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IN THE COURT OF APPEAL FOR ZAMBIA CAZ APPEAL NO.

201/2021
HOLDEN AT LUSAKA CAZ/08/313/2020
(Civil Jurisdiction)

BETWEEN:

An AUG 2022
MUBITA MWANANUKA APPELLANT

AND 50067 •

ARMAGUARD SECURITY LTD RESPONDENT

CORAM: KONDOLO SC, NGULUBE, BANDA-BOBO, JJA


On 15TH June, 2022 and on 3rd and 24th August, 2022

For the Appellant : Ms. M.K. Liswaniso, Legal Aid Counsel- Legal Aid Board
For the Respondent : Mr. V. Kayawe - In-house-Counsel

JUDGMENT

POSTEA 24th August, 2022

On 3rd August, 2022 we delivered the above Judgment in which we omitted to

consider important decisions by the Constitutional Court and Supreme Court

thus falling foul of stare decisis and rendering our Judgment per incuriam.

Our Judgment was to the effect that all employment related cases must be

commenced in the High Court - Industrial Relations Division and not in the

General List. The effect of the Judgment has been understood as divesting the

General list of jurisdiction to receive and determine labour related claims.


It has since been drawn to our attention that the Judgment has created

challenges in the filing of employment related claims in the High Court. The

Judgment in which we overlooked an important jurisdictional issue was

delivered during the course of this month and requires immediate remedial

action, hence this postea.

We have as quickly as possible considered the relevant precedents including the

case of Zambia National Commercial Bank Plc v Martin Musonda &

58 Others (2017/CCZIRO04) Selected Judgment No. 24 of 2018 in

which the Constitutional Court held as follows;

"In its literal interpretation, Article 133 (2) of the

Constitution as amended merely makes the Industrial

Relations Court a division of the High Court and has not

affected wholesale, the provisions of the Industrial and

Labour Relations Act and its Rules to the extent that they

do not conflict with any provision of the Constitution as

amended. Until new legislation is enacted to provide for

the processes and procedures and jurisdiction of the

Industrial Relations Court Division pursuant to Article

120 (3) (a) and (b) of the Constitution as amended, the

Court continues to use the existing processes and

procedures and enjoys the same jurisdiction."

In short, even though the Industrial Relations Court became a division

of the High Court by operation of law, it maintains its distinct character


established by the Industrial Relations Act. The practice and procedure

in the High Court Industrial Relations Division is therefore regulated by

the Industrial Relations Rules and not the High Court Rules and will

continue to do so until new legislation is enacted for the purpose.

The effect of this is that, those employment related matters, that were

previously filed in the High Court, before the divisions were created, can

be competently filed on the general list as was done by the Appellant

herein.

The appeal therefore succeeds and we accordingly set aside our earlier

order granting the Respondent liberty to re-commence the matter in the

High Court Industrial Relations Division. The matter is hereby remitted

to the High Court- General List before another Judge. Each party shall

bear its own costs.

M. M. KONDOLO, Sc
COURT OF APPEAL JUDGE

P.C.M. NGULUBE A.M. BANDA-BOBO


COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE

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