Before: MALABA CJ, In Chambers
AN APPLICATION FOR AN ORDER FOR LEAVE FOR DIRECT ACCESS TO THE
CONSTITUTIONAL COURT
This is a chamber application in
terms of section 167(5) of the Constitution of Zimbabwe Amendment
(No. 20) Act 2013) (“the Constitution”), as read with Rule 21(2)
of the Constitutional Court Rules SI 21/2016 (“the Rules”), for
an order for leave for direct access to the Constitutional Court
(“the Court”).
In the event that the application
is granted, the substantive application would seek an order setting
aside the decision of the Supreme Court in the case of Vengesai
Chirasha v National Foods Ltd SC20/18. The applicant alleges that the
decision of the Supreme Court (“the court a quo”) violated the
following of his fundamental rights – the right to equality before
the law and equal protection of the law, the right to fair labour
standards, the right to a fair trial, and the right of access to
courts, as protected by sections 56(1), 65(1), 69(1) and 69(3) of the
Constitution respectively.
No opposing papers were filed on
behalf of the respondents. At the hearing, Ms Makumbe and Mr Muchada
of Dube, Manikai & Hwacha appeared on behalf of the first
respondent, as a matter of courtesy. The Court was told that the
application had been served on Dube, Manikai & Hwacha, who at
times represent the first respondent. However, in this matter they
did not have instructions to represent the first respondent. That
development was communicated to the applicant at the time that the
legal practitioners were served with the application. Nonetheless,
the notice of set down was served on Dube, Manikai & Hwacha.
The applicant produced a document
which he said was a return of service of the application on the first
respondent, following the communication from Dube, Manikai &
Hwacha. The applicant informed the Court that he served the
application at the first respondent's place of business. The
document did not indicate who received the application on behalf of
the first respondent.
There was no proper proof of
service of the application on the second and third respondents.
Rule 9(2)(b) of the Rules
provides that, where service is effected by a litigant himself or
herself or itself, proof of such service shall be by way of an
affidavit by the litigant that the document concerned was served by
him or her or it on the party concerned. The affidavit of service
must inform the Court how the service was effected. That was not done
in this case.
The Court, however, proceeded to
hear the matter despite the circumstances, because it was the
applicant who bore the onus of proving his case.
FACTUAL BACKGROUND
The applicant was employed by the
first respondent as a cashier at its depot in Victoria Falls. He was
charged with “wilful loss” of company stock, misappropriation of
company property and disobedience to a lawful order. A disciplinary
hearing was conducted. He was found guilty as charged and dismissed
from employment. The applicant appealed to the Disciplinary
Sub-Committee. The Sub-Committee dismissed the appeal.
The applicant was dissatisfied
with the outcome of the internal appeal and noted an appeal against
that decision to the Labour Court. The appeal was dismissed. The
applicant alleged that the first respondent committed certain acts of
corruption by facilitating the issuance of food hampers to a number
of State agencies, including the Labour Court officials. The
applicant alleged that, as a result of the alleged corruption, his
appeal was dismissed in the Labour Court “on an unclear basis.”
Aggrieved by the decision of the
Labour Court, the applicant noted an appeal to the court a quo. The
appeal was also dismissed. The applicant was aggrieved by the court a
quo's decision, the constitutionality of which he intends to
challenge in the substantive application on the ground that it
violated his fundamental rights enshrined in Chapter 4 of the
Constitution. The applicant argued that some of his former workmates
were not charged with the acts of misconduct that he faced. It is on
that basis that he alleged that his right to equal protection of the
law was violated. He stated that the Labour Court ought to have taken
note of the difference in the manner in which he was treated and set
aside the decision to lay charges against him and his subsequent
dismissal.
The applicant contended that his
rights to fair labour standards and a fair trial were violated.
The applicant's interpretation
of section 65(1) of the Constitution was that where misconduct arises
at a workplace necessitating the taking of disciplinary action, an
employer is expected to charge all persons directly associated with
the alleged acts of misconduct. His contention was that as the first
respondent did not charge his workmates with acts of misconduct
together with him the right to fair labour standards was violated.
The applicant stated that the
court a quo ought to have set aside the Labour Court's decision.
According to him, the decision of the court a quo violated his right
of access to courts protected by section 69(3) of the Constitution.
In the substantive application
the applicant seeks to file should an order for direct access be
granted, he would seek an order in the following terms:
“WHEREUPON after reading
documents filed of record and/or hearing the parties:
IT IS DECLARED that:
1. The applicant's fundamental
rights as enshrined in sections 56(1); 65(1); 69(1) and 69(3) of the
Constitution of Zimbabwe were violated.
2. The decision of the Supreme
Court in part 2 in SC 20/28 (sic) which related to dismissal; the
whole decision of the Labour Court in LC/MT/52/12 and the decisions
by the first respondent's appeal and disciplinary committees are
set aside and replaced with an order directing the first respondent
to re-instate the applicant to his original position without loss of
salary and benefits.
3. The first respondent to pay
costs.”
At the hearing, the applicant
conceded that a decision of the court a quo on a non-constitutional
matter was final and cannot be appealed against. He, however,
insisted that the Court had to inquire into the question whether his
dismissal was proper, as there were allegations of corruption on the
part of the first respondent which allegedly had a bearing on his
dismissal.
According to the applicant, his
case involved issues of corruption which “eats the pillars of the
Constitution”, therefore direct access had to be granted to enable
the Court to address the issues of corruption. The applicant further
submitted that, since no opposing papers were filed on behalf of the
first respondent, the issues of corruption were to be taken as
admitted.
The applicant also submitted that
there was discrimination in the manner in which the charges of
misconduct were preferred against him alone, yet there were two other
employees who could have been charged together with him. According to
the applicant, there was selective application of the law, which
resulted in the violation of his right to a fair trial. He argued
that direct access had to be granted to enable the Court to determine
the question of discrimination which the court a quo had failed to
address in its judgment.
ISSUE ARISING FOR
DETERMINATION
WHETHER IT IS IN THE INTERESTS
OF JUSTICE THAT DIRECT ACCESS BE GRANTED
In an application of this nature,
it is imperative to satisfy the requirements of Rule 21(3), as read
with Rule 21(8), of the Rules.
Rule 21(3)(a) of the Rules
provides that the founding affidavit in an application for an order
for direct access must show the grounds on which it is contended that
it is in the interests of justice that an order for direct access be
granted. The requirement in Rule 21(3)(a) is peremptory. If the
founding affidavit does not satisfy the requirement, the application
has no basis. The applicant failed to meet the requirement of Rule
21(3)(a).
In determining whether it is in
the interests of justice to grant an order for direct access, the
Court is directed by, but not limited to, the considerations in Rule
21(8) of the Rules. The rule provides as follows:
“(8) In determining whether or
not it is in the interest of justice for a matter to be brought
directly to the Court, the Court or Judge may, in addition to any
other relevant consideration, take the following into account -
(a) the prospects of success if
direct access is granted;
(b) whether the applicant has any
other remedy available to him or her;
(c) whether there are disputes of
fact in the matter.”
It is imperative that the
requirements of Rule 21(3), as read with Rule 21(8), of the Rules are
met because, as a matter of principle, direct access to the Court is
an extraordinary procedure granted in deserving cases that meet the
requirements prescribed by the relevant rules of the Court. See
Liberal Democrats and Ors v President of Zimbabwe and Ors CCZ 7/18;
Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd
and Anor CCZ 11/18.
After reading the papers filed of
record and hearing submissions from the applicant, the Court was
satisfied that it is not in the interests of justice that direct
access be granted, because there are no prospects of success for the
substantive application should direct access be granted.
Although the applicant denied
that he seeks direct access in order to challenge the correctness of
the decision of the court a quo, it is evident from the grounds of
the application that he seeks to do so. It is also clear from the
terms of the draft order the substantive application would seek as
the relief from the Court should an order for leave for direct access
be granted.
Paragraph 5 of the draft order
sought as the relief in the substantive application is intended to
set aside the decision of the court a quo and ipso facto the
decisions of all the lower tribunals finding the applicant guilty of
the acts of misconduct charged against him. The draft order is clear
that the intention is to have the applicant reinstated into
employment with the first respondent without loss of salary and
benefits. The nature and content of the relief intended to be sought
by the substantive application show that the intended application is
an appeal disguised as an application in terms of section 85(1) of
the Constitution.
In terms of section 169(1) of the
Constitution, as read with section 26(1) of the Supreme Court Act
[Chapter 7:13], decisions of the Supreme Court are final except in
matters over which the Court has jurisdiction. See Williams and Anor
v Msipha N.O. and Ors 2010 (2) ZLR 552 (S); Nyamande and Anor v Zuva
Petroleum (Pvt) Ltd and Anor 2015 (2) ZLR 351 (CC);
Prosecutor-General Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR
422 (CC); The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1)
ZLR 14 (CC).
The applicant seeks to approach
the Court in terms of section 85(1) of the Constitution alleging
infringement of fundamental rights by the court a quo in its decision
upholding his dismissal, should an order for direct access be
granted. Section 85(1) provides:
“85
Enforcement of fundamental human rights and freedoms
(1) Any of the following persons,
namely -
(a) any person acting in their
own interests;
(b) any person acting on behalf
of another person who cannot act for themselves;
(c) any person acting as a
member, or in the interests, of a group or class of persons;
(d) any person acting in the
public interest;
(e) any association acting in the
interests of its members;
is entitled to approach a court,
alleging that a fundamental right or freedom enshrined in this
Chapter has been, is being or is likely to be infringed, and the
court may grant appropriate relief, including a declaration of rights
and an award of compensation.” (emphasis added)
The Court in the Lytton case
supra outlined the requirements which a party seeking to challenge
the constitutionality of a decision of the court a quo on the ground
that it violated his or her or its fundamental right must satisfy. At
p 19 of the cyclostyled judgment, the Court had this to say:
“The facts must show that there
is a real likelihood of the Court finding that the Supreme Court
infringed the applicant's right to judicial protection. The Supreme
Court must have failed to act in accordance with the requirements of
the law governing the proceedings or prescribing the rights and
obligations subject to determination. The failure to act lawfully
would have to be shown to have disabled the court from making a
decision on the non-constitutional issue.”
The Court further stated that the
founding affidavit must state that the court a quo failed to
determine the non-constitutional matter because it failed to take
into account factors it was required to consider by the law governing
the conduct of the proceedings and determination of the
non-constitutional matter.
The applicant has not placed any
facts before the Court to show that the conduct of the court a quo
disabled it from making a decision on the non-constitutional issue
that was for its determination.
The matter for determination by
the court a quo was whether there was sufficient evidence before the
Labour Court on the basis of which it concluded that the guilt of the
applicant of the acts of misconduct charged against him had been
proved on a balance of probability. It is common cause that the
matter for determination by the court a quo was not a constitutional
matter.
It would not become one just
because the applicant has chosen to approach the Court in terms of
section 85(1) of the Constitution, alleging infringement of his
fundamental rights by the court a quo through the decision it
rendered.
The applicant was not aggrieved
by the conduct of the court a quo in dealing with his matter. He was
aggrieved that he did not receive a judgment that was in his favour.
He seeks a second bite at the cherry. However, the law does not allow
the Court to undertake such a course to review decisions of the court
a quo on non-constitutional matters. That is so because decisions of
the court a quo are final, except in matters where the court a quo
makes a determination on a constitutional matter. The applicant
cannot be allowed to approach the Court in order to attack the
correctness of the decision of the court a quo on a
non-constitutional matter.
Once it is accepted that the
court a quo's decision was on a non-constitutional matter, the
question of the constitutionality of the decision falls outside the
jurisdiction of the Court. The jurisdiction of the Court cannot be
exercised over the matter of the correctness or otherwise of the
decision of the court a quo on a non-constitutional matter because
doing so would not serve the purpose and objective for which the
narrow and specialised jurisdiction was conferred on the Court as a
product of the Constitution.
The Court must also address the
issues of corruption that the applicant alleged the court a quo
failed to address in its judgment. It is not true that the court a
quo did not address the allegations of corruption on the part of the
first respondent with the Labour Court officials. At pp 5-8 of the
cyclostyled judgment, the court a quo dealt with the allegations of
corruption as follows:
“The appellant makes even more
serious allegations that the respondent's Group Human Resources
Director and others were busy issuing food hampers to labour
officers, arbitrators and registrars of labour courts, including Mr
Muna, on or about the time that he was allegedly misled into filing a
review instead of an appeal.
In his answering affidavit in the
application for leave to appeal to this Court the appellant states:
'18. Firstly, the applicant
approached the Labour Court with appeal papers against the
arbitrator's award, the papers were manipulated by the Assistant
Registrar. The respondent used and still uses that manipulation as
its chief argument. It later emerged that the same respondent,
through the office of the deponent, was issuing hampers to the same
Assistant Registrar and other administrative authorities.'
And in his heads of argument, the
appellant focused on this issue in the following manner:
'In casu, the respondent
patronised and colluded with Court officers to mount controversy on
the appellant's papers which in turn the respondent sought and
still seeks to rely upon in having the matter thrown away on a legal
technicality. I refer to pp 54 and 55 of the appeal record SC38/14,
wherein the respondent's Group Human Resources Director and others
were discussing and subsequently issuing food hampers to Labour
Officers, Arbitrators and Registrars of the Labour Court to induce an
obvious outcome.'
The appellant then attached
copies of e-mail messages exchanged between employees of the
respondent, as follows: …
And each of these food hampers
was by no means a trifling parcel but consisted of significant
grocery items as follows: 5 x 2kg Flour, 6 x 400g Peanut Butter, 6 x
500g mixed jam, 3 x 2 litres Mazoe Orange Crush and 1 x 5kg Roller
Meal.
The appellant pointed out that
his appeal at the Labour Court was heard on 19 September 2011 and
judgment was reserved. The flurry of e-mails quoted above occurred
the very next morning 20 September following the hearing, raising
suspicion in his mind that the 'gifts' were intended to influence
the outcome of his appeal. He was unsure, however, as to when the
giving out of the hampers had commenced or how widespread the
practice was. There was no evidence or allegation that the presiding
judge a quo or the arbitrator concerned had received any of these
hampers. It appears that this alleged interference affected only that
aspect of his appeal pertaining to the challenge of the arbitral
award.
Mr Maguchu, for the respondent,
did not deny that the respondent had distributed food hampers as
alleged, but simply submitted that the practice had long since ceased
and should have no relevance to the current proceedings.
However, in my view, the above
allegations, though untested, are of a very serious nature. The
approach by the courts in circumstances of alleged financial bias is
that the existence of the slightest financial interest in a matter by
an adjudicator would nullify the proceedings. The learned author
Lawrence Baxter in his seminal work, Administrative Law, Juta &
Co Ltd, 1984 explains this apparently stricter test for bias where
pecuniary interest is involved as follows:
'Where pecuniary interest is
alleged it is usually said that, if shown to exist, the “smallest”
or “slightest” pecuniary interest will be sufficient to vitiate
the decision. This has led many commentators to argue that the test
for bias in cases of pecuniary interest, as opposed to other cases of
bias, is stricter than usual. There seems to be no need to adopt such
a distinction: it is perfectly consistent to interpret the cases as
stipulating that the slightest pecuniary interest will give rise to
an apprehension by the reasonable man of a real likelihood of bias.'
I can find no reason why this
principle cannot apply to the current case provided all the
allegations are properly proved. Had such proof been available, and
the administrator shown to have had an indirect financial interest in
the outcome of the matter, having been promised or received the food
hamper for the purpose of subverting the appellant's case, any
reasonable person, under such proven circumstances, would perceive a
real likelihood of bias on his part in the carrying out of his
responsibilities. However, such critical proof and linkage between
the administrator's actions and the respondent's conduct remained
too elusive on the record for this court to make a definitive
determination.
Furthermore, the matter was not
helped by the appellant's own inconsistent submissions. For
example, in his heads of argument the appellant, in one paragraph,
maintains that what was placed before the court below was an appeal
and the court grossly erred in treating it as a review, but in the
very next paragraph claims that his papers were manipulated to turn
his intended appeal into a review.
Be that as it may, the
allegations and circumstances of this case are of such a serious
nature that they cannot simply be glossed over. For any party to seek
to influence Labour Court officials in such a blatantly vile manner
to decide matters in its favour or misdirect litigants for its
benefit as was allegedly done here is abhorrent in the extreme. It
strikes at, suffocates and fouls the very source and wellspring of
justice. Accordingly, one is left with no choice but to refer this
matter to the appropriate authority, the Judicial Service Commission,
to investigate and make the necessary decisions.”
The court a quo clearly made a
decision that the allegations of corruption raised by the applicant
had to be investigated by the Judicial Service Commission. That was a
course open to the court a quo in terms of the law in making its
decision. The court a quo was clear on its finding that the decision
of the Labour Court was based on consideration of the facts of the
case and was not in any way tainted by the gifts allegedly given to
members of staff. That was a decision on a non-constitutional matter.
It is not a decision for the Court to review.
The applicant asked that the
Court express a view on the allegations of corruption.
The decision of the court a quo
on the matter is final as a matter of law. The Court has no
jurisdiction to inquire into that aspect of the finding of the court
a quo.
It is not in the interest of
justice to grant an order for direct access as the decision of the
court a quo, the constitutional validity of which is sought to be
impugned, was on a non constitutional matter.
DISPOSITION
“The application is dismissed
with no order as to costs.”
PATEL JCC: I agree
GUVAVA JCC: I agree
