This
is a chamber application for an order for leave for direct access to
the Constitutional Court (“the Court”), made 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 61/2016 (“the Rules”).
FACTUAL
BACKGROUND
The
applicant was employed by the respondent as an English teacher
between 2009 and 2012. Towards the end of 2011, the applicant applied
for a year-long unpaid study leave in order to further his studies at
the University of Witwatersrand in South Africa. The applicant
maintains that the respondent approved the study leave. In January
2013 the applicant reported for duty. It was then that he was advised
by the respondent that he had been absent from work without official
leave as his leave had not been approved. He was advised that his
contract of employment had been terminated. A dispute ensued and the
matter was referred to the National Employment Council for Welfare
and Educational Institutions for arbitration.
On
18 July 2014, the arbitrator ruled that the applicant had been
unlawfully dismissed. The respondent was ordered to reinstate him in
the original position without loss of salary and benefits. The
respondent appealed to the Labour Court (“the court a quo”)
against the arbitral award. The appeal was dismissed by the court a
quo on 24 February 2017. The court a quo found that the National
Employment Council for Welfare and Educational Institutions had no
jurisdiction to deal with the matter. It set aside the arbitral
award. The matter was referred to the National Employment Council for
School Development Associations and Committees of Zimbabwe (“NEC”).
The
respondent raised a preliminary point to the effect that the claim
had prescribed. The point was dismissed by the conciliator. The
applicant sought to have the award confirmed by the court a quo but
the matter was, instead, struck off the roll. The applicant was
aggrieved by the decision of the court a quo. He thereafter filed the
present application for an order for direct access to the
Constitutional Court, alleging that the court a quo breached his
right to fair labour practice and the right to a fair hearing
enshrined in sections 65(1) and 69(3) of the Constitution of Zimbabwe
Amendment (No. 20) 2013 (“the Constitution”) respectively. The
applicant argued that in upholding the special plea of prescription
the court a quo prevented him from approaching that court seeking the
enforcement of the arbitral award.
At
the hearing of the application, the applicant submitted that he was
not attacking the construction and applicability of the Prescription
Act. He said he wanted the Constitutional Court to determine the
question whether the application of the Prescription Act does not
infringe his right of access to courts and the right to a fair
hearing. He argued that the court a quo regarded the arbitral award
as a final judgment, thereby impacting his right to fair labour
practice as he cannot find redress in any other fora.
The
applicant argued that he had approached the Supreme Court with the
intention of noting an appeal, but had been told that if he wanted to
note such an appeal he would have to be a party to the proceedings
against which he intended to appeal. He stated that the Registrar of
the Supreme Court told him that it was the Designated
Officer
in the matter before the court a quo who was the party to the
proceedings. He said he was told that he lacked locus standi to note
an appeal. The applicant further submitted that he had conducted
research and learnt that he could not appeal against the decision of
the court a quo, because the court had struck the matter off the
roll. He argued that the only available remedy in the circumstances
was to approach the Constitutional Court in terms of section 85(1) of
the Constitution.
The
applicant asserted that there was need for the Constitutional Court
to understand the spirit of the law, particularly that where
fundamental rights have been infringed a litigant ought to have the
right to approach the Constitutional Court. He argued that his right
to approach the Constitutional Court was vindicated by the relief he
is seeking, which is a declaratur to the effect that the proceedings
before the court a quo were not fair, that they be set aside and that
the matter be remitted to the court a quo.
The
applicant averred that when he approached the court a quo he was told
that he could not get a copy of the judgment, and, as such, he had no
clear understanding of why the matter was struck off the roll. He
further argued that an application for rescission is a recourse where
there is a patent error in the judgment and this was not the case in
casu. He argued that the respondent was creating a fictitious dispute
of fact, having agreed in its papers that there was no dispute of
fact as the court a quo properly applied the Prescription Act.
The
applicant further indicated that the respondent had always been at
fault, and, in the circumstances, he was justified in seeking relief
from the Constitutional Court. He argued that the respondent had
raised the issue of jurisdiction in the court a quo. He complained
that in the present application the respondent was raising another
technicality to stop him from being granted relief by the
Constitutional Court. He said that his claim is not frivolous because
he was unfairly dismissed without any hearing. He urged the
Constitutional Court to go beyond the technicalities as his case had
prospects of success….,.
In
response, counsel for the respondent argued that the applicant had
made three admissions. The first was that he can get redress in the
Supreme Court. The second was that he wanted the matter to be
remitted to the court a quo thereby accepting that the Constitutional
Court was a court of last resort. Counsel for the respondent said
that the order given by the court a quo was by consent of the
parties. He drew the attention of the Court to the fact that the
applicant had attached Annexure One, which showed that an order by
consent was made in the proceedings before the court a quo. He took
the argument further to say that the order striking the matter off
the roll said nothing about the issue of prescription. He argued that
the order which the applicant was trying to constitutionalise was not
constitutional in any manner; as such, the applicant had no right to
approach the Constitutional Court.
Counsel
for the respondent argued that in any event the applicant had the
option to apply for rescission of judgment or have it altered in
terms of Rule 40 of the Labour Court Rules, 2017 if he felt that the
consent order was granted in error. That option did not need the
intervention of the Constitutional Court.
He
argued that the application was not properly before the
Constitutional Court as it did not raise any constitutional matter
and there was no constitutional issue raised for determination by the
court a quo.
Counsel
for the respondent submitted that, in terms of Practice Direction
3/2013, where a matter has been struck off the roll a party can
correct the defect within thirty days and request that it be brought
back before the court. He argued that, instead of approaching the
Constitutional Court, the applicant ought to have used the prescribed
remedy….,.
DETERMINATION
OF THE ISSUES
WHETHER
THE MATTER RAISES A CONSTITUTIONAL QUESTION
The
applicant took the view that the application raised constitutional
issues. According to him, the interpretation of the Labour Act
[Chapter 28:01] (“the Act”) automatically raises constitutional
questions. He argued that the Labour Act gives effect to section 65
of the Constitution and it therefore follows that its application
raises constitutional issues. He also indicated that he was aware
that, due to the fact that the court a quo has jurisdiction on labour
issues, it follows that not every labour matter is to be brought
before the Constitutional Court. He quoted Paulsen and Another v Slip
Knot Investments 777 (Pty) Limited [2015] ZACC 5 (CC).
The
Constitution clearly provides that the Constitutional Court hears and
determines only constitutional matters and issues connected with
decisions on constitutional matters. In order to deal with the
question, the Constitutional Court has to have regard to the
complaint or cause of action raised by the applicant. The applicant
pointed out that he filed the application:
“…,
in order to challenge the Labour Court order upholding the special
plea of prescription based on the Prescription Act.”
The
applicant further alleged that the decision of the court a quo
violates his rights guaranteed under sections 65(1) and 69(3) of the
Constitution.
It
is apparent that what the applicant seeks to challenge is the
decision of the court a quo. It is therefore important that the
Constitutional Court looks at whether the said judgment violates a
constitutional right.
The
applicant attached to his application an order of the court a quo,
which he claimed violated his constitutional rights. He did not
attach the full judgment, indicating that he was not provided with
the judgment after requesting for it from the court a quo. What is
clear is that the application filed by the applicant in the court a
quo was an application for confirmation of a ruling by the Designated
Agent of the NEC in the matter between Garikai Kamanga and Prince
Edward High School SDA. The order indicates that the matter was
struck off the roll.
A
failure by the applicant to show that there was a constitutional
matter before the court a quo for determination renders the
application void ab initio, as the Constitutional Court has
jurisdiction to decide only constitutional matters and issues
connected with decisions on constitutional matters.
In
Meda v Sibanda & Ors 2016 (2) ZLR 232 (CC) the Court stated the
following….,:
“The
facts on which the allegation is based must, of course, appear in the
founding affidavit. Whether or not the allegation is subsequently
established as true is a question which does not arise in an enquiry
as to whether the matter is properly before the Court in terms of
section 85(1) of the Constitution.”
It
is trite that an application stands or falls on the founding
affidavit. The following is stated in HERBSTEIN & Van WINSEN:
'The Civil Practice of the High Courts of South Africa' 5ed…,.:
“The
general rule which has been laid down repeatedly is that an applicant
must stand or fall by the founding affidavit and the facts alleged in
it, and that although sometimes it is permissible to supplement the
allegations contained in that affidavit, still, the main foundation
of the application is the allegation of facts stated there because
those are the facts that the respondent is called upon either to
affirm or to deny.”
In
the applicant's founding affidavit filed of record, he made
allegations to the effect that the decision of the court a quo was
incorrect. He indicated that the court a quo:
“…,
should have interpreted the word 'judgment' in section 19(3)(b)
of the Prescription Act in a way that would least intrude on the
applicant's right to fair labour standards.”
In
Williams and Another v Msipha N.O. and Others 2010 (2) ZLR 552 (S)…,
the Court observed as follows:
“The
Constitution guarantees to any person the fundamental right to the
protection under a legal system that is fair but not infallible.
Judicial officers, like all human beings, can commit errors of
judgment. It is not against the wrongfulness of a judicial decision
that the Constitution guarantees protection. A wrong judicial
decision does not violate the fundamental right to the protection of
the law guaranteed to a litigant because an appeal procedure is
usually available as a remedy for the correction of the decision.
Where there is no appeal procedure, there cannot be said to be a
wrong judicial decision because only an Appeal Court has the right to
say that a judicial decision is wrong. See Maharaj v A G of Trinidad
& Tobago (No.2) [1979] AC 385 (PC) at 399D–H; Boordman v A G of
Trinidad & Tobago [1996] 2 LRC 196 at 205i–206b.”
The
applicant's complaint was that the decision of the court a quo is
wrong. It is only an Appeal Court that can declare that a decision of
a subordinate court is wrong. As such, regardless of the correctness
or otherwise of the decision of the court a quo, the applicant's
rights were not violated by its alleged “wrongness”. The
Constitutional Court does not have the power to determine whether the
decision of the court a quo was correct or wrong, particularly since
the decision was on non-constitutional matters. The Supreme Court
concerns itself with the correctness or otherwise of the decision of
the Labour Court; as such, it is the proper forum for the applicant's
matter.
The
position is clearly set out in the Labour Act [Chapter 28:01] as
follows:
“92F
Appeals against decisions of Labour Court
(1)
An appeal on a question of law only shall lie to the Supreme Court
from any decision of the Labour Court.”
The
applicant has a remedy available to him in the Supreme Court. In as
much as the applicant is convinced that the decision of the court a
quo is wrong, that does not create a right of appeal in the
Constitutional Court. The jurisdiction of the Constitutional Court is
clearly set out in the Constitution as follows:
“167
Jurisdiction of Constitutional Court
(1)
The Constitutional Court -
(a)
Is the highest court in all constitutional matters, and its decisions
on those matters bind all other courts;
(b)
Decides only constitutional matters and issues connected with
decisions on constitutional matters, in particular, references and
applications under section 131(8)(b) and paragraph 9(2) of the Fifth
Schedule; and
(c)
Makes the final decision whether a matter is a constitutional matter
or whether an issue is connected with a decision on a constitutional
matter.”
The
present application is an appeal against the decision of the court a
quo disguised as a constitutional application for an order for leave
for direct access. The applicant admitted that he is aware that this
is an issue for appeal. Despite his submissions that he tried to note
an appeal, he does not have the right of appeal under section 85(1)
of the Constitution. The applicant should have noted an appeal to the
Supreme Court against the decision of the court a quo if he had valid
grounds for noting the appeal.
In
Prosecutor-General v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC)
the Constitutional Court dealt with a similar application, in which
the applicant requested the Constitutional Court to set aside a
Supreme Court decision. The Constitutional Court noted…, that:
“I
find the dicta cited above to be eminently apposite in casu. This is
because while the applicant did not specifically state so in his
application, in reality, the matter was an appeal brought to this
Court under the guise of an application. This is abundantly evident
from the relief that is outlined in his draft order. It is even more
evident from his summary of the background to the intended
application as already indicated. He indicated that he wished to
approach this Court 'for an order setting aside the Supreme Court
judgment on the basis that it interferes with the independence of his
office, and, as such, it is ultra vires provisions of section 260 of
the Constitution of Zimbabwe…,.' Like in the case referred to
above, the issue that I have underlined, and others that the
applicant sought to bring before this Court, similarly 'arose'
after the Supreme Court judgment was pronounced. They could not have
been, and in fact were not, raised before the Supreme Court, and,
needless to say, not determined by it as constitutional matters. The
issues therefore did not meet the requirement for inclusion into
'matters over which the Constitutional Court has jurisdiction'.”
This
means that the applicant cannot trigger the jurisdiction of the
Constitutional Court by disguising an appeal against a decision of a
subordinate court on a non-constitutional issue as a constitutional
matter. The applicant should follow the proper avenue for relief. The
Constitutional Court finds that the application is not properly
before it. It would not be in the interest of justice to grant an
order for leave for direct access to the Constitutional Court over a
matter in respect of which it has no jurisdiction.
DISPOSITION
In
the result, it is ordered that:
“The
application be and is hereby dismissed with costs on a legal
practitioner and client scale.”
