CIVIL CAUSE NO. 686 OF 2001
HYGHTEN LEMANI MUNGONI..............................PLAINTIFF
THE REGISTERED TRUSTEES OF
CORAM: HON. JUSTICE A.C. CHIPETA
By Originating Summons dated the 15th day of March, 2001 the plaintiff
raised a number of questions for this court to determine. Inter alia,
the plaintiff seeks severance pay for termination of employment and a finding
that the said termination was wrongful or unlawful, as well as a determination
that as such the plaintiff is entitled to compensation. The Originating
Summons is supported by an affidavit.
Before I can venture into an analysis of the arguments advanced herein,
it strikes me that I need to address two points that have so far exercised
my mind in this case. Looking at the issues raised in the Originating
Summons it is clear that what exists between the parties herein is a labour
dispute. Under Section 110(2) of the Constitution original jurisdiction
for such and like matters lies in the Industrial Relations Court.
There is no indication that any attempt has been made to petition that
court before bringing the complaint to this court. Much as this court
enjoys unlimited original jurisdiction in any civil or criminal proceedings
per Section 108(1) of the Constitution, I apprehend that procedurally this
court should not assume original jurisdiction where that is exercisable
by any of its subordinate courts including the Industrial Relations Court.
This employment Act came into operation on 1st September, 2000 (See Govt Notice No. 47 of 2000). There is no indication that the Act was meant to have retrospective effect and where no such retrospectively is conferred an Act operates from the day it comes in force onwards. It is to be particularly borne in mind that severance pay which features highly in this case is a creature of this new Act and that it did not exist under the Employment Act (Cap...........) That was in force prior to 1st September, 2000. It appears to follow in my view that the Originating Summons herein is premised on law that was not yet in force at the time of termination and that some of the remedies it alludes to were then not legally available.
Made in Chambers this 4th day of May, 2001 at Blantyre.