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Court name
Constitutional Court of Zambia
Case number
4 of 2017

Zambia National Commercial Bank PLC v Musonda and Others (4 of 2017) [2018] ZMCC 12 (13 June 2018);

Law report citations
Media neutral citation
[2018] ZMCC 12
Headnote and holding:

Civil procedure – Industrial Relations Division – Processes, procedure and jurisdiction after enactment of amendments to constitution
Civil procedure – Industrial Relations Division – How a division of the High Court is constituted under Article 135 of the Constitution of Zambia (Amendment) Act No 2 of 2016
Civil procedure – Industrial Relations Division – Transitional provisions of constitution to apply until new court rules promulgated
Civil procedure – Industrial Relations Division – Existing processes, procedure and jurisdiction to continue until law provides otherwise
Civil procedure – Industrial Relations Division – Whether distinct character has been retained after amendments to constitution
Constitutional law – Interpretation of constitution during transitional period – Good order and stability of legal system paramount considerations
Civil procedure – Statutory construction – Statutory instruments to continue in application until expressly repealed

The Respondents applied in the Industrial Relations Division for leave to file a complaint out of time pursuant to Rule 47 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. The Applicants raised a preliminary issue questioning whether or not the Respondents can constitutionally file process in the High Court using the procedure set out in the Industrial Relations Court Rules, Statutory Instrument No. 206 of 1974. The issue was referred to the Constitutional Court under Article 128 (2) of the Constitution.
The Applicant's contention was that the amendments to the constitution had fundamentally altered and changed the operations of the Industrial Relations Court from a labour tribunal that dispensed substantial justice to a division of the High Court for Zambia. That having become a division of the High Court for Zambia, the Industrial Relations Court as established by section 84 of the Industrial and Labour Relations Act had effectively been abolished. The Applicant cited Part XI of the Industrial and Labour Relations Act as being inconsistent with the Constitution of Zambia (Amendment) Act No 2 of 2016 (the “Constitution”) by providing for the establishment of the Industrial Relations Court. The Applicant further argued that having been converted to a division of the High Court, the rules that automatically apply to this division
are the rules of the High Court as prescribed by the Chief Justice of the Republic of Zambia pursuant to Article 136 (2) (e) of the Constitution.
The Respondents argued that until the rules governing the Industrial Relations Court Division of the High Court are promulgated, the Industrial Relations Court Rules contained in Statutory Instrument No. 206 of 1974 will still be applicable. It was further argued that there were no rules promulgated following the enactment of the Constitution, which guide litigants on the manner in which actions are to be commenced in the Industrial Relations Division of the High Court.

Held
1. It is clear from the provisions of Article 120 (3) (a) and (b) that the processes, procedures, jurisdiction, powers and sittings of the Industrial Relations Court Division should be provided for in an Act of Parliament.
2. Article 135 of the Constitution as amended which provides for the sittings of the High Court stipulates that the High Court shall be constituted by one judge or such other number of judges as the Chief Justice may determine. Article 135 of the Constitution therefore settles the question of the composition of a division of the High Court when sitting to determine a matter before the Court.
3. The transitional provisions as provided for under section 6 (1) of the Constitution of Zambia Act No 1 of 2016 apply to the Industrial Relations Court Division until specific rules of procedure for the Court are prescribed.
4. 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.
5. By virtue of separation, the Industrial Relations Court Division maintains its distinct character which is the raison d'etre for its existence which enables its specialisation in this particular area of law to be discharged more efficiently and effectively than would otherwise be the case.
6. The good order and stability of our legal system is a paramount consideration in the transitional period following the enactment of the Constitution of Zambia (Amendment) Act No 2 of 2016. A reading of Articles 1, 120, 133 and 136 of the Constitution with section 3 of the High Court Act and section 6 of the Constitution clearly shows that the
Industrial Relations Court now exists as a division of the High Court. That its rules continue to apply, read with necessary modifications to suit its new structure until the said rules are revised by the Chief Justice pursuant to the new legislation to be enacted. This position is fortified by reference to Article 267 (3) of the Constitution which requires interpretation of the Constitution in a manner that ensures that the law is continuously in force. Henry Kapoko v The People, Selected Judgment No. 43 of 2016 followed
7. A statutory instrument issued under any written law remains in force unless it has been repealed by another statutory instrument issued or made under the provisions of such repealing written law. The commencement of actions in the Industrial Relations Court Division of the High Court is still governed by the Industrial Relations Court Rules until legislation is enacted to provide for the processes, procedures, jurisdiction, powers and sittings of the Industrial Relations Court Division in accordance with Article 120 (3) (a) and (b) of the Constitution.
Referral dismissed.

Coram
Sitali, JCC
Mulembe, JCC