Cosntantine Kafula vs Managing Director Williamson Diamonds Ltd (HC Civil Appeal No. 23 of 1998) [1999] TZHC 325 (7 May 1999)

!N THE HIGH COU:i:{T OF TANZANIA AT .TAJ;lORA (HC) Giv'il APPEAL NO. 23 OF 1998 (from Misc. labour Case No~ 3 of 1998 Shinyunga District C(,)urt) COST.ANTINE KAFULA • 0 0 0 •• o e 0 0 •• VE .t< S U.S APPELLANT THE MANAGING DL'IBCTOR WILLIAMSON DIA}'JONDS Ltd o ao - RESPONDENT JUDGMENT This appeal is be:gqro me on an issue of jurisdictioh, o.;nd I horJe t 0 he ruling is not going to be nil that long. The appelL::,nt Costantine Kafula had been employed as an Assistant Farm Manager at the Willfrunson Diamonds Mines Ltd., and it is said that he was so employed since 2/3/76. It is .said that h0 S~iJ.00. a Contract ~f service with the said Dia.mond Mines to work \iJ-he reRcheJ the age of 55 years. On 3.V12/96 the app0llantie, se:r-viccs ivith the Mines we terminated on ground thct he)~2d reDched the age of 55 years. The appellant disputed thclt a 6 e. He thepefore sent his matter- to the District Court 4,f Shinyanga asking for a lot of things. Becnuse or whn.t is going to be apparentlf.!~l let me quote exactly what he requested in eourt. He asked for: :1.·· 11 (i) Salcu'y from Ja..YJ.uary to June;· l:197 r;: T.Shs.60,500 X 6 = 363,doot=u ( ii) Sa.J:ary fr om July to December, 1997 ToShso8o,ooo X 6 = 480,000/=G (iii) Hl:lHkcting nllowanc0 January to Decernb8r 1 1997 'l'.Shs.,25.,000 X 12 = 300 1 000/= (iv) Meal and Transfer allowance January to December? 1997 ....

2 (v) Medical trec.1.tment allowance anu,ry to June 1997 (vi) Medical trca.tmnt allowance July to December 1997 28,000/= x 6 = 168,000/=· ( vii) l;Jrtt e::r allowance J t'.:l..'1Uary to December· 1997 5,000/= X 12 ~ 60,000/=• (viii) Electricity -9~~sc January to December 1997 5,ooot= x 12 = 60,000/= .. (ix) NPF pe.yment T.Shso95,000/=o (x) CPF paymE:nt TwShs.ll,925/= X 12 = 143,000/=o (xi) Handshake c:.llowance for one year To8hs 0 l2, 000/=• (xii) Electricity and water alJiance for 1995 and 1996 (xiii) 13th wonths salary T.Shs.80,000/=• N~~~--'the District Court of Shinyanga (L, Masolwa)PDM) has struck out th•3 claim saying that the Court - his Court - h:id no jurisdiction to entertain the same as the matt-3r fell under '.lt'he Secnrity of Employment Act No. 62/64. He argued that according to s. 28 of. the said Act, his Court wou.ld hava no jurisdiction., '.I'he appelL:mt disputes and nov appeals to this Court .. The learned Principal Dist4rict Magistrate is right in saying that his Court has no juris<iiction to entert;:.d .... -ri the case. 'i'he Security Employrmmt Act actually de2-ls with disputes between indiiliduals against their employers. It denls with, for exa.mple:- 1,, Summary dismissal. 2. Proposed summuy dismissal. 3o . :geduction of wages by \VD.y of disciplinary penalty. 4. '1 1 erminat ion of employment.

3 The J...o.w, for sure, h~1S provided 2. lnddcr of appeal of such p8ople,. When a person is aggrieved, he Goes to th0 ~onc~~~'2;.!,,.n.r: at the Labour Officeo 'These Boards can do one of the following:-

1. decide whether the swnn1acy dis1;1isaal or any P cn2lty such as reduction 0f "','&ge·:··· 9 ·.,, · """' was JustifiGd. , .. It may therefore confirm, reverse or vc:xy the punishment., 2o Order re-instatement. 3o Order a refund of monies paid as penalty 0 4c. Or may initiate 12.1:ifv..b and a;nicable sttlement of the dispute. Nm1, the arnploye0 who gets dissatisfied \vith any decision of the said Board appe1::ls to the Minister responsible for labour affairs 1:1ho has a final decision$ This explanation of what an employee who finds himself ~ a prudicament should do ,s been explained in so mc.ny cases of this Court. Mr. Rugarabamu, learned adyocate for the respondent h,1s shows one such recent decision,. It is of my bbother Lugakingira J ., (as he then was)• This is the c8.se of Shn.bani H. Mseezi v Nationnl Milling Corporation High Court Civil Appeal No. 44 of 1994 Mvmnza. There is a passage in that judgment which is quot ftll, .··vlev c:tnt to t :1e iG6UG at hand - t er·minat ion of service, not only Summarily but for o:ny othtor cause like redundancy, as it was in that case, or thirJdng thr:t the amplofee:,-;,has renched rat iring age, when the ernployae himself dispute~ Lugakingira J., said: HTo recapitulate, the· appello.nt was not surr.mnrily dis!i!issed ras here Mr. Ea.fulc. argues 7 but was terminated for alleged redundancy ['"here- Mr o I<iafull:Et is t:·~rminnted. for reaching retiring agifj That brought his case under Part lV of the Act. When an employee is terminated, he can t.:-J.(e one of

two option.s: He can Contest the tern1ination by referring the san:f to a Conciliation !!91~,t.c. r1r::J.;> Boo.rd·· under s. I.J-O A(l), and th8 Board rne,y order his re-ilwtc=:ttement;;, Altt::rn2tively, he can cL'.lim stu.tutory compenso.tioii and again refer .. . - . .. his claim to a Boarc ... in accordance with the provisions of So 38e Ip either case a reference lies ~ . .. to the Mi:r1ister whose decision is final O:::..'ld conclusive 11 ; - .. :,., ,)..r .. I am c.wate of some judgments where it was challenged in fact,. that refusing an employee to go to Court the way Mr. I{afula is beinr-; refused in unconstitntior...alo The High Court lns held th,.rt it is not unconst'itutional . . (See for 0xample Chipeta. J"6 jud_0ent in the case of .!!... Mwnki.sr ... mb\·W ~~hire Ac1lth Pμ:t·i?~~!Y ·E..xp~fe··w.Q.h (:'1985J 1 Q .. B .. 152 where something ... rationale · is so.id on d·:i.,6rni$s2.l . ' ~ of employmes-· and ·che i;i;,c:;-;. Qi{ b.:tvini:; these rr,atters adjudicates in q\lasi

• judicial bodie.s.·. -:Jay Lo;-.lted: .. ,,. . ·r. .. :· 11 In the great majority of cases invol:v;i.ng ... /. •,• ;-: .. :): .. diBputes about the dismissal of an einpl'oy0e, by his amployers the most appropriate forum for resolving the dispute is an industrial tri1;iunalo ·-----~~...,, The Courts should not be a stute to hold th.:,t any particular dispute is a.ppropr:iate· for consideration undc,r the judicial revfow procedure, 11 The judge want on to remark, at pnge 170:- "Employment disputes not infr-equently have politicctl or ideological overtones or raise what are often described c..s rnc.tters of·prinoiple: ' th.es€ o.re gener;lly best consideredii-not by the 'Y' . ,.. -~ . ' ,.

' 5 Divisiorta_l Court but by an Industria.l tribunal to the members of which, both lay, and legally qualified, such over tones or matters of principle ar·e common $Urrency.," So, people should be encouraged to go to Tribunals rather than Courts, I think. The Courts are not recepti~e places for discussing and adjudicating labour matters. The Courts have rigid procedures, rigid disciplines. People don't adjudicah, matters over a cup of tea, as would be in a Conciliation Board. L'1deed, as I sa::i.d before, the learned. p:.>:incipal district Magistrate was right in holdiDg thut his Court h:1d no jurisdiction to cntertai.i.1 the matter of the appellu.11t. The appeal is dismissed with costs. At Tabarao Mro Rugarabarrlll for rospondento ' ' / J. E;;' Co MABANCHE JUDGE