Retrospectivity is a ground for holding civil legislation invalid only if it contravenes one of the provisions of the Constitution which enshrine fundamental human rights and freedoms.
One of the grounds on which the alternative case was advanced by the applicants for the alleged unconstitutionality of the transitional provision was that, in retrospectively imposing the new financial obligation on employers who terminated employees' contracts on notice, the Legislature impaired the employer's right to terminate the contract of employment on notice without treating the employee in a similar manner.
The contention was that the law of contract provided equal protection to the employer and employee engaged in a contract of employment by giving them the freedom to terminate the relationship upon giving each other the requisite notice. The allegation was that, in violation of section 56(1) of the Constitution, the retrospective application of section 12 of the Labour Act, by the transitional provision, denies employers the protection provided to both parties by the law of contract of the right to terminate the employment relationship on notice.
Section 44(1) of the Constitution imposes on the Legislature an obligation to respect, protect, promote and fulfil the fundamental human rights and freedoms enshrined in Chapter IV when exercising the legislative powers in terms of section 117(2)(b) of the Constitution.
RIGHT TO EQUAL PROTECTION OF THE LAW
The gist of the argument presented by counsel for the applicants was that the financial obligation imposed on the applicants violates their right to equal protection of the law because it is imposed retrospectively under the transitional provision.
As with any law, retrospective legislation enjoys a presumption of constitutionality. The challenger bears the burden of proving that the retrospective legislation violates the protection of the fundamental human right or freedom guaranteed to him or her or it by the Constitution. If infringement is established and the right or freedom is derogable, the State has the burden of justifying the limitation of the fundamental human right or freedom in terms of section 86(2) of the Constitution.
Section 56(1) of the Constitution provides as follows:
“56 Equality and non-discrimination
(1) All persons are equal before the law and have the right to equal protection and benefit of the law.”
It is common cause that the purpose behind the retrospective application of the legislation was the protection of employees whose contracts were terminated on notice from uncompensated loss of employment at the initiative of the employers. The content of the purpose was the provision of the mechanism and formula for the payment of compensation to employees whose contracts were terminated on notice for loss of employment and the imposition on employers, who terminated the employees' contracts on notice, of the obligation to pay the compensation calculated by reference to length of service. The purpose was to ensure that the employment that was lost by termination on notice, at the initiative of the employer, on or after 17 July 2015, was compensated.
There is no doubt that the welfare of employees, upon termination of employment on notice, is a matter of public interest deserving of legislative protection. The law cannot be interpreted against the employees unless the objective is shown to be unconstitutional or the means chosen for its achievement are disproportionate to it. At no time did counsel for the applicants suggest, in the argument advanced to the Court, that the purpose of the retrospective application of the legislation to the applicants was not legitimate.
The raison d'etre of Constitutional Law is the human being. Section 56(1) of the Constitution enshrines three separate but related fundamental human rights. The rights are: the right to equality before the law; the right to equal protection of the law; and the right to benefit of the law.
The contents of the rights must be available and claimable under any measure which meets the standard of legality. Article 1 of the Universal Declaration of Rights declares that:
“All human beings are born free and equal in dignity and rights.”
Equality is a fundamental human right and a principle of social justice. Every person is, by virtue of being human, entitled to equal access to the remedies, protection and benefits provided under the law. As all human beings are equal, they are entitled to equal treatment as such under the law. This idea of equality of human beings and equal treatment as such underlies all modern, democratic and humanitarian legal systems.
Whilst section 56(1) of the Constitution requires respect and protection of human equality as a foundational value, it does not mean that identically the same rules of law should be applicable to all persons in every instance, regardless of differences of factual circumstances and conditions. Section 56(1) of the Constitution does not protect a right to identical treatment. The right to equality is violated when the State makes an unjustified distinction between people or situations. Section 56(1) of the Constitution is not about formal equality, as formal equality is already part of the Constitution. The fundamental principle of the rule of law to the effect that all State power is bound by law and that everyone is bound by law means that there is equal application of law since the very nature of law demands universal application. Section 56(1) of the Constitution speaks to substantive equality.
Human beings may be equal yet act differently in different situations or circumstances. Need may arise for the enactment of a law, the specific object of which is the prohibition of the recurrence of harmful acts to protect public interest. A Legislature empowered to make laws on a wide range of subjects must of necessity have the power of making special laws to attain particular objectives. Such a law would have a specific objective and be aimed only at a section of people who would commit the prohibited conduct. For the reason of the specific objective and the nature of the prohibited acts, such a law would be based upon a creation of a class of people to which it applies. By exclusion, it would create a different class of people to which it does not apply.
The Legislature has undoubtedly a wide field of choice in determining and classifying the subject matter of its laws. It must be presumed that a Legislature understands and correctly appreciates the needs of its own people. The power to classify or particularise objects of legislation must, in the nature of things, be left to the law-making authorities.
REASONABLE DIFFERENTIATION AND EQUAL PROTECTION OF THE LAW
The right to equal protection of the law, enshrined in section 56(1) of the Constitution, does not prohibit the enactment of law based on reasonable differentiation of groups of people for different treatment in respect of the purpose of the legislation. Section 56(1) of the Constitution leaves it to the courts to decide when a classification of persons is prohibited under its provisions. The doctrine of classification evolved by the courts is not a paraphrase of section 56(1) of the Constitution. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore a violation of the right of the claimant to equal protection of the law. See E P Royappa v State of Tamil Nadu 1974 SCR 248.
If unequal treatment of various groups of people addressed by the retrospective legislation is to be upheld under section 56(1) of the Constitution, there must be differences of such a type and weight that they can justify the difference of treatment. Unequal treatment and justification must be adequately related to each other.
The purpose of the right to equal protection of the law enshrined in section 56(1) of the Constitution is to ensure that those in similar circumstances and conditions who are the subjects of the legislation are treated equally, both in the privileges and in the liabilities imposed. There should be, as between them, equal protection of the law. The right does not require equal treatment of people who are in different circumstances. The difference must exist, characterised by objective factors relevant to the achievement of the legislative purpose. The different treatment must correspond to the nature of the difference.
No legislation, in any practical sense, is possible without some kind of classification. The very nature and purpose of every legislation depend on the choice of some subject to the exclusion of the rest and some arena for its operation. This selective quality is inherent and implicit in every legislation. The constitutional guarantee of the right to equal protection of the law cannot be understood and construed in such a manner as to make legislation impossible for all practical purposes. To what class or classes of persons or things a statute should apply is, as a general rule, a legislative question. The Legislature is the best judge of the needs of the particular classes.
Given that the criterion for the imposition of the financial obligation was termination of an employee' contract on notice and that the object of the obligation, retrospectively imposed, was payment of compensation for loss of employment, there had to be a differentiation of treatment between employers and employees. The effect of the retrospective application of the statute had to be the classification of people in employment relationships into employers who terminated employees' contracts on notice on or after 17 July 2015 and the employees whose contracts were terminated on notice.
As long as the retrospective application of the change is rationally related to a legitimate legislative purpose, the constraints of equal protection of the law have been honoured - even when the legislation imposes a new obligation based on past acts.
It readily becomes apparent that retrospectivity of the effect of an obligation alone does not make it a source of infringement of the fundamental right. The right to equal protection of the law, enshrined in section 56(1) of the Constitution, does not prohibit legislative differentiation of people resulting from retrospective imposition of a new obligation on members of one class for the benefit of members of the other class, provided the classification is in respect of a legitimate purpose and is based on reasonable and objective criteria. In other words, such a retrospective differentiation of treatment of persons who are the subjects of the legislation can be undertaken by the Legislature without infringing the right to equal protection of the law enshrined in section 56(1) of the Constitution.
Differentiation of treatment legitimately aimed at ameliorating the economic conditions of a disadvantaged group, like employees whose contracts are terminated on notice without compensation for loss of employment, cannot be held to be in contravention of section 56(1) of the Constitution simply because it is retrospectively imposed on the employers who terminated the employees' contracts on notice.
Article 26 of the International Covenant on Civil and Political Rights (“ICCPR”) recognises and protects the right to equal protection of the law by providing as follows:
“All persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Commenting on non-discrimination, as it relates to the right to equal protection of the law, the United Nations Human Rights Committee on the International Covenant on Civil and Political Rights (“ICCPR”), in General Comment 18, adopted on 10 November 1989, stated as follows:
“13. Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”
Judge Tanaka of the International Court of Justice, giving a dissenting opinion in the South-West Africa Cases (Ethiopia v South Africa; Liberia v South Africa); Second Phase, International Court of Justice (ICJ), 18 July 1966, said:
“To treat different matters equally in a mechanical way would be as unjust as to treat equal matters differently. We know that law serves the concrete requirements of individual human beings and societies. If individuals differ one from another, and societies also, their needs will be different, and, accordingly, the content of law may not be identical. Hence is derived the relativity of law to individual circumstances….,.
We can say, accordingly, that the principle of equality before the law does not mean the absolute equality, namely, equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely, the principle to treat equally what are equal and unequally what are unequal….,.
The question is, in what case equal treatment or different treatment should exist.
If we attach importance to the fact that no man is strictly equal to another and he may have some particularities, the principle of equal treatment could be easily evaded by referring to any factual and legal differences and the existence of this principle would be virtually denied. A different treatment comes into question only when and to the extent that it corresponds to the nature of the difference. To treat unequal matters differently according to their inequality is not only permitted but required. The issue is whether the difference exists. Accordingly, not every different treatment can be justified by the existence of differences, but only such as corresponds to the differences themselves, namely, that which is called for by the idea of justice – 'the principle to treat equal equally and unequal according to its inequality, constitutes an essential content of the idea of justice' (Goetz Hueck, Der Grundsatz der Gleichmassigen Behandlung in Privatrecht, 1958, p. 106) [translation]….,.
Briefly, a different treatment is permitted when it can be justified by the criterion of justice. One may replace justice by the concept of reasonableness generally referred to by the Anglo-American school of law. Justice or reasonableness, as a criterion for the different treatment, logically excludes arbitrariness. The arbitrariness which is prohibited means the purely objective fact and not the subjective condition of those concerned. Accordingly, the arbitrariness can be asserted without regard to motive or purpose….,.
All human beings are equal before the law and have equal opportunities without regard to religion, race, language, sex, social groups, etc. As persons, they have the dignity to be treated as such. This is the principle of equality which constitutes one of the fundamental human rights and freedoms which are universal to all mankind. On the other hand, human beings, being endowed with individuality, living in different surroundings and circumstances are not all alike, and they need, in some aspects, politically, legally and socially different treatment. Hence, the above-mentioned examples of different treatment are derived.
Equal treatment is a principle but its mechanical application, ignoring all concrete factors, engenders injustice.
Accordingly, it requires different treatment taken into consideration of concrete circumstances of individual cases. The different treatment is permissible and required by the considerations of justice; it does not mean a disregard of justice….,.
Different treatment must not be given arbitrarily; it requires reasonableness, or must be in conformity with justice…,.”
McCRUDDEN C and PRECHAL S, in an article entitled “The Concepts of Equality and Non-Discrimination in Europe: A Practical Approach”, European Network of Legal Experts in the Field of Gender Equality, November 2009, refer to the Aristotelian conception of equality applied in Europe which has two dimensions: like cases should be treated alike, and different cases should be treated differently. An example of Cyprus is given where it is stated that the Supreme Constitutional Court of that country accepts that the:
“…,. Right to equality is subject to reasonable differentiations between inherently different situations. On the other hand, arbitrary unreasonable differentiations, not justified by the intrinsic nature of things, will contravene the equality principle.”
The authors go on to write that:
“In France, the Constitutional Council has held that the principle of equality does not preclude legislation from laying down different rules for categories of persons in different situations or legislation from laying down different rules where the difference of treatment is justified by general interest and where the difference of treatment is compatible with the purpose of the legislation. In Poland, too, the Constitutional Court has interpreted the constitutional principle of equality to mean that all subjects characterized by a certain feature or belonging to a certain category must be treated equally, without any differentiation, neither in a discriminatory manner, nor more favourably.”
The acceptance of different treatment of people in different positions as a means to achieve equality in India was made clear in the case of V.M. Syed Mohammad and Company v The State of Andhra 1954 AIR 314, [1954] SCR 1117…,. The right to equal protection of the law in India is provided for under Article 14 of its Constitution, which provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
In V.M. Syed Mohammad and Company v The State of Andhra 1954 AIR 314 [1954] SCR 1117 a complaint was made to the effect that an impugned Act singled out for taxation purchasers of certain specified commodities only but left out purchasers of all other commodities. In interpreting the right to equal protection of the law, the court stated as follows:
“It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14, it has been said, does not forbid classification for legislative purposes, provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. As pointed out by the majority of the Bench which decided Chiranjitlal Chowdhury's case ([1950] S.C.R. 869), there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins.”
In the same jurisdiction, the court, in the case of Budhan Choudhry v The State of Bihari [1955] 1 SCR 1040, accepted that the creation of classes for purposes of legislation is legal, which is the same as the treatment of different people in different positions. The court said:
“It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely;
(i) That the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and
(ii) That that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration…,. It is also well established that the Legislature is not bound to extend a legislation to all cases which it might possibly reach. It may take into consideration practical exigencies, it may recognise degrees of harm, and confine the legislation where the need is greatest, and that a law which hits evil where it is most felt will not be overthrown because there are other instances to which it might have been applied; that the Legislature may proceed cautiously step by step;…,.”
In America, the right to equal protection of the law is found in the Fourteenth Amendment to the United States Constitution, under section 1. Among other things, the section provides that no State in America shall deny to any person within its jurisdiction the equal protection of the laws.
As far back as 1897, the United States Supreme Court, in the case of Gulf, Colorado & Santa Fe Ry. Co. v Ellis 165 U.S. 150 (1897) held that equal protection of the laws means subjection to equal laws applying alike to all in the same situation. In 1910, the same court, in Southern Railway Co. v Greene, 216 U.S. 400 (1910) made the point that while reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed. Classification cannot be arbitrarily made without any substantial basis. Arbitrary selection cannot be justified by calling it classification.
CURRIE & De WAAL: “The Bill of Rights Handbook”, 6ed, Juta…., explain that classification of people for purposes of legislation does not violate the right to equal protection when it is based on reasonable grounds. The learned authors state as follows:
“The equality right does not prevent the State from making classifications and from treating some people differently to others. This is because the principle of equality does not require everyone to be treated the same, but simply that people in the same position, from a moral point of view, should be treated the same. Laws may therefore classify people and treat them differently to other people for a variety of legitimate reasons. Indeed, laws almost inevitably differentiate between persons. It is impossible to regulate the affairs of the inhabitants in a country without differentiation and without classifications that treat people differently and that impact on people differently. Not every differentiation can, therefore, amount to unequal treatment. If it did, the courts could be called on to review almost the entire legislative programme.”…,.
In Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) the Constitutional Court of South Africa explained that mere differentiation without a rational relationship to the legislative purpose, and not based on objective criteria, would constitute a violation of the right to equal protection of the law. The court said…,:
“In regard to mere differentiation, the constitutional State is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest 'naked preferences' that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of a constitutional State. The purpose of this aspect of equality is, therefore, to ensure that the State is bound to function in a rational manner…,.
Accordingly, before it can be said that mere differentiation infringes section 8 [IC] (now section 9(1) of the South African Constitution) it must be established that there is no rational relationship between the differentiation in question and the government purpose which is proffered to validate it. In the absence of such rational relationship the differentiation would infringe section 8.”
From the case law and commentaries from other jurisdictions, it can be concluded that for justice to be done, classes may be created retrospectively by a law which appears to favour one class over another. The classification must have a rational relation to the purpose sought to be achieved by the legislation. The classification must be based on reasonable grounds that are related to the matters marking the differences in the circumstances of the people classified. In other words, when a law retrospectively creates a classification, its purpose must clearly and logically be beneficial. Good reason must exist for the instrumentality of the retrospective classification. Once classification is done, for the legitimate purpose of legislation, and is based on reasonable and objective criteria, the law cannot be said to violate one's right to equal protection of the law.
The transitional provision created two classes.
(i) The first class was that of employees whose contracts of employment were terminated on notice after the Zuva Petroleum judgment (Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC43-15, 2015 (2) ZLR 186 (SC)). They were to benefit from the payment of the minimum retrenchment packages under section 12 of the Labour Act [Chapter 28:01].
(ii) The second class was that of the employers upon whom the obligation to pay the retrenchment packages to the employees whose contracts were terminated on notice was imposed.
The Legislature was free to classify employers who terminated employees' contracts on notice. It was free to choose to impose the financial obligation on them. The Legislature was also free to classify employees whose contracts were terminated on notice and grant them the benefit of compensation for loss of employment. The Legislature reacted to the direct adverse impact on the economic lives of employees whose contracts were terminated on notice at the initiative of employers who exercised their right to terminate the contracts of employment on notice.
The applicants, who belong to a class of persons obliged to pay minimum retrenchment packages, cannot allege unequal protection of the law against employees who are in a different class from theirs. The employees whose contracts were terminated on notice are not comparable to employers who terminated their contracts on notice for the purpose of the legislation retrospectively applied to the parties. The employer cannot, in the circumstances, claim equality with the employee whose employment he or she or it terminated on notice.
Although the applicants suffered a disadvantage, by having the financial obligation imposed on them retrospectively, they did not share relevant characteristics with the employees whose contracts they terminated on notice for the purposes of the legislation. The applicants were not similarly situated as the employees whose contracts they terminated on notice for the purposes of the retrospective imposition of the financial obligation to pay the employees whose contracts were terminated the minimum retrenchment package. Equality means sameness in treatment of people who are similarly situated or placed. Only when people in a similar circumstance are treated differently can it be alleged that the right to equal protection of the law has been violated.
That was not the position in the present case.
