Kamunga S Cynthia v Financial Gazette (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/668/2016
HARARE, 22 JULY 2016 &
CASE NO LC/H/LRA/56/2016
21 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/668/2016

HARARE, 22 JULY 2016 &				  CASE NO LC/H/LRA/56/2016

21 OCTOBER 2016

In the matter between

KAMUNGA S CYNTHIA							APPLICANT

And

FINANCIAL GAZETTE (PVT) LTD					RESPONDENT

Before the Honourable Mhuri & Muchawa JJ

For the Applicant	T Marume (Legal Practitioner)

For the Respondent	T Manjonjo (Legal Practitioner)

MUCHAWA J:

This is a counter application by the respondent for referral of certain constitutional issues to the Constitutional Court, in terms of section 175 (4) of the Constitution of Zimbabwe 2013 (“The Constitution”).

The respondent, Financial Gazettee (Private) Limited is a company which employed twelve employees, L Chigodora and 11 others, hereinafter referred to as the claimants. They were employed in various capacities at divers times. All their contracts of employment were terminated on the 31st October 2015 on three months’ notice.

The claimants approached the National Employment Council for the Printing, Packaging and Newspaper Industry claiming a minimum retrenchment package in terms of section 12 C (2) of the Labour Act [Chapter 28:01] (“The Act”) as amended. The applicant found that the claimants were indeed entitled to the minimum retrenchment package.

The ruling by the applicant came before this court for confirmation by way of an application in terms of section 93 (5a) and (5b) of the Act.

The respondent opposed the application for confirmation of the ruling and also filed this counter application.

The Court confirmed the application, having found that it was in line with the relevant provisions of the Act.

After hearing the parties’ submissions on the counter application, we reserved our ruling. Hereunder is the ruling.

Constitutional issues raised for referral

The constitutional issues raised by the respondent in the counter application relate to the following issues:

That the retrospective application of section 12 (4)(a) as provided by section 18 of the Labour Amendment Act No 5 of 2015 (Amendment Act) is unconstitutional..

That the procedure prescribed by the new section 93 (5) of the Act as amended, allowing a designated agent to approach the Labour Court to enforce its own ruling is unconstitutional and contrary to the principles of natural justice.

That a litigant who loses a matter before the same designated agent no longer has a right of appeal and this is unconstitutional.

The Respondent’s Submissions

Mrs Manjonjo, counsel for the respondent made the following submissions in support of the counter application;

Re: retrospectivity

That the new section 12 (4)(a) of the Act is unconstitutional as it relies on a retrospectivity clause introduced by section 18 of the Amendment Act. Section 18 provides that the amended section 12 applies to every employee whose services were terminated on three months’ notice on or after 17 July 2015.

That by so doing the legislature effectively made what was once lawful (termination of employment contracts by notice), unlawful and thus took away a substantive right that reposited in the respondent, whilst conferring benefits to the employee which did not exist at the time of termination.

That this violates section 56 (1) of the Constitution as the right to equality before the law and equal protection and benefit of the law is infringed.

That there is a violation of the due respect for vested rights which is part of the principles of good governance binding on the State and all institutions and agencies of government as set out in section 3 (2) (k) of the Constitution.

Re: Legality of section 93 (5) of the Act

In her submissions on section 93 (5) of the Act,  Mrs Manjonjo takes issue with the procedure introduced.

She argued that a litigant who loses a case before a labour officer or designated agent no longer has a right of appeal to any court as the ruling is only subject to confirmation, with or without amendment before the Labour Court. Such confirmation procedure is alleged to be neither a review nor an appeal.

She submitted that the taking away of the right of appeal against such a ruling runs contrary to section 169 (1) of the Constitution which states that the Supreme Court is the final court of appeal in Zimbabwe except in matters where the Constitutional Court has jurisdiction.

She also argued that the new procedure does not ensure independence, impartiality, substantive and procedural fairness, as the same labour officer who conciliates over a dispute in terms of section 93 (1) of the Act proceeds in terms of section 93 (5)(c), where a dispute is a dispute of right, to make a ruling over the dispute. After making a ruling, the same labour officer is enjoined to apply to the Labour Court for confirmation of the draft ruling and order in terms of section 93 (5a) and (5b). Thereafter the labour officer will submit the confirmed order for registration.

She submitted that the elevation of the labour officer from conciliator to judge then litigant is unconstitutional and that it violates sections 68 (1) and 69 (2) of the Constitution as it takes away the independence, impartiality, substantive and procedural fairness that are guaranteed in those provisions.

The Applicant’s submissions

Mr Marume, for the applicant made the following submissions in opposition of the counter application:

Re:  Retrospectivity

It was submitted that the key thing to be considered is the intention of the legislature in introducing the retrospectivity clause. The Court was referred to the context within which the Labour Amendment Act No 5 of 2015 was passed.

Mr Marume submitted that after the Supreme Court decision in Don Nyamande v Kingstone Donga v Zuva Petroleum (Pvt) Ltd (“The Zuva case”) SC-43-15 which confirmed the lawfulness of termination of contracts of employment on notice, several companies went on massive terminations of contracts of employment on notice. The legislature’s intention was said to have been to arrest the spiral effect of the Zuva case which was handed down on 17 July 2015, by including the retrospectivity clause.

It was contended for the applicant that the court should uphold the notion of parliamentary supremacy and protect the rights of the employees.

Re:  Legality of Section 93 (5) of the Act

On the question of the alleged loss of the right of appeal, Mr Marume submitted that such right has not been lost as any litigant can raise issues during confirmation proceedings.

As to the alleged lack of independence, impartiality, substantive and procedural fairness in the new procedure, Mr Marume submitted that there is no partiality as the role of the labour officer is limited to confirming his ruling and how he arrived at it and that he is not an interested party.

Disposition

Section 175 (4) of the Constitution, in terms of which this counter application is made, provides as follows:

“If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.”

The inquiry to be made is therefore whether the request, in the light of the constitutional matters raised, is merely frivolous and vexatious.

I am guided in this process by the case of Martin v AG & Anor 1993 (1) ZLR 153 (S) at 157 C – F wherein GUBBAY CJ (as he then was) defined the terms “frivolous” and “vexatious”. He stated:

“In the context of section 24 (2) the word “frivolous” connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it. The word “vexatious”, in contradiction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in full appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless …”

I turn now to apply this to the issues raised for referral.

Ad Retrospectivity

The court is being asked to consider whether the law giver’s intention to take away accrued rights such as the respondent’s right to give notice without paying a minimum retrenchment package violates section 56 (1) as read with section 3 (2)(k) of the Constitution.

In the case of Barclays Bank v Nyahuma SC 86-04 the Supreme Court stated the existence of the presumption against retrospectivity of statutes unless the amending statute expressly provides for retrospectivity in order to rebut the presumption.

I have found no basis for the applicant’s parliamentary supremacy argument. Instead section 2 of the Constitution enshrines the supremacy of the Constitution and provides that any law, practice, custom or conduct inconsistent with the Constitution is invalid to the extent of the inconsistency.

One cannot therefore say the question of retrospectivity raised is marked by a lack of seriousness or is groundless. It is also not just being raised for the purpose of causing annoyance to the applicant.

Ad Legality of Section 93(5) of the Act

As to the right of appeal, it is apparent from the Act in section 93 (5a) and (5b) that the labour officer is given the right to apply for confirmation of the ruling and order he made on notice to the person against whom the ruling and order is made.

The Labour Court’s role is to grant the application for confirmation of the order with or without amendment in terms of section 93 (5b).

It is apparent that there is no clearly spelt out right and procedure of appeal. A request for referral of this issue is therefore not frivolous and vexatious.

The new procedure set out clearly starts off with the labour officer as conciliator, then adjudicator and finally litigant in the same matter. It cannot be said to be a groundless and meritless argument to require the Constitutional Court to inquire into the effect of this regarding independence, impartiality, substantive and procedural fairness. Neither can it be said that this is meant to simply harass the opposing party. This too cannot be found to be frivolous and vexatious.

I am alive to the case of S V Dhlamini & Ors CC7/2014 which held that a referral was incompetent where a lower court had already rendered a decision to remand the applicants and they should have requested a referral before that decision.

In casu, though the ruling and order of the applicant were confirmed, the Court did not go into the constitutional issues which are sought to be referred.

I therefore find that the request for a referral is not frivolous and vexatious and it is competent.

Accordingly it is ordered as follows:

The counter application by the respondent for referral of the constitutional issues set out in paragraphs 2.1 to 2.2 hereunder is granted.

2.1	Whether or not section 18 of the Labour Amendment Act No 5 of 2015 violates sections 56 (1) and 3 (2)(k) of the Constitution of Zimbabwe, 2013, and should therefore be struck down.

2.2	Whether or not section 93 (5) of the Labour Act, as amended, is in contravention of section 68 (1), 69 (2) and 169 (1) of the Constitution of Zimbabwe, 2013.

MUCHAWA J:……………………………..

MHURI J: ……………………………… I agree.

Matsikidze & Mucheche, applicant’s legal practitioners

Lunga Gonese Attorneys, respondent’s legal practitioners