1.
MALABA
CJ: After
hearing submissions by counsel in the application, the Court made the
following order by consent:
“IT
IS ORDERED BY CONSENT THAT:
1.
The order of the court a quo given in terms of section
175(1) of the Constitution
declaring section
93(5a) of the Labour Act [Chapter 28:01]
to be in conflict with sections
56(1),
68(1)
and 69(3)
of the Constitution
is not confirmed in terms of section
167(3) of the Constitution.
2.There
shall be no order as to costs.”
INTRODUCTION
2.
Notwithstanding the fact that the matter was disposed of on the basis
of an order by consent, a written judgment was necessary to clarify
the law on the issue behind the interpretation of section
93(5a) of the Labour Act [Chapter
28:01]
(“the Act”).
3.The
constitutional matter that was brought before the Constitutional
Court (“the Court”) was whether section
93(5a) of the Act
is in conflict with sections
56(1),
68(1)
and 69(3)
of the Constitution of Zimbabwe
Amendment (No.20) Act, 2013 (“the Constitution”).
The
matter came to the Court by way of the procedure laid down in section
175(1) of the Constitution
for confirmation of orders concerning the constitutional invalidity
of any law or any conduct of the President or Parliament made by
another court.
4.
The High Court (“the court a
quo”)
made an order declaring section
93(5a) of the Act
to be in conflict with sections
56(1),
68(1)
and 69(3)
of the Constitution
and therefore invalid.
5.Section
56(1) of the Constitution
entrenches the right of every person to equality and to equal
protection and benefit of the law. Section
68(1) of the Constitution
protects the right of every person to administrative justice. Section
69(3) of the Constitution
safeguards the fundamental right of every person to access the
courts, or to some other tribunal or forum established by law for the
resolution of any dispute.
6.
In terms of section
175(1) of the Constitution,
any declaration of invalidity of any law or any conduct of the
President or Parliament made by a competent court has no force until
it has been confirmed by the Court. This section is complemented by
section
167(3) of the Constitution,
which provides that the Court makes the final decision on whether an
Act of Parliament is constitutional and must confirm an order of
invalidity made by another court. The sections serve distinct yet
harmonious purposes, with the emphasis being placed on the express
oversight of the Court over orders of constitutional invalidity of
legislation made by other courts.
7.
The order of constitutional invalidity of section
93(5a) of the Act
made by the court a
quo
had to be reviewed by the Court. The Constitution
entrusts the Court with the duty of supervising the exercise by other
courts of the power to declare laws inconsistent with it.
8.
The Court is also not bound by the order of constitutional invalidity
made by the court a
quo.
In S
v Chokuramba
19-CC-001,
the Court held at paras 14-15 and p6 of the cyclostyled judgment as
follows:
“The
Court is empowered to confirm an order of constitutional invalidity
only if it is satisfied that the impugned law or conduct of the
President or Parliament is inconsistent with the Constitution.
It must conduct a thorough investigation of the constitutional status
of the law or conduct of the President or Parliament which is the
subject-matter of the order of constitutional invalidity. The Court
must do so, irrespective of the finding of constitutional invalidity
by the lower court and the attitude of the parties.
Thorough
investigation is required, even where the proceedings are not opposed
or even if there is an outright concession that the law or the
conduct of the President or Parliament which is under attack is
invalid. The reason for this strict requirement is that invalidity of
the law or the conduct of the President or Parliament is a legal
consequence of a finding of inconsistency between the law or the
conduct in question and the Constitution.
Inconsistency is a matter of fact, on the finding of which the court
a quo and the Court may differ.”
(the underlining is for emphasis)
9.
The Court still retains the power to decline an order of confirmation
of constitutional invalidity, particularly where it is convinced that
the order will have no practical effect or where the party
challenging it has failed to show that he or she or it is injured by
the operation of the impugned law.
THE
BACKGROUND FACTS AND THE PROVISIONS OF THE LEGISLATION, THE
CONSTITUTIONALITY OF WHICH IS IMPUGNED
10.
The order of constitutional invalidity of section
93(5a) of the Act
was made by the High Court in the following circumstances.
11.
On 10 February 2015 the applicant was suspended from work in terms of
the Labour (National Employment Code of Conduct) Regulations, 2006
(S.I.15
of 2006)
(“the Code of Conduct”), on allegations of theft by conversion of
US$100 meant to be paid to his employer. A disciplinary hearing was
conducted in terms of section
6(4) of the Code
of Conduct. The applicant was found guilty of the acts of misconduct
with which he was charged. He was dismissed from employment with
effect from the date of suspension. He was advised that he had a
right in terms of section
8 of the Code
of Conduct to appeal against the decision to dismiss him.
12.
On 12 March 2015 the applicant referred the matter to a labour
officer in terms of section
8(6) of the Code
of Conduct. The section provides a remedy to a person aggrieved by a
decision or manner in which an appeal is handled by an employer or
the appeals officer or the Appeals Committee, as the case may be, to
refer the case to a labour officer. Section
8(7) of the Code
of Conduct provides that the labour officer to whom a matter is
referred in terms of subs (6) of section
8
shall process the case as provided for under section
93(1) of the Act,
which section deals with the conciliation of disputes.
13.
The labour officer did not dispose of the matter within the 30-day
period prescribed under section
93(3) of the Act,
leading to the applicant approaching the Labour Court in terms of
section
93(7) of the Act.
On 24 September 2015 the Labour Court made an order referring the
matter back to the labour officer and directing him to appoint an
arbitrator. Compulsory arbitration was no longer available as a
remedy for the resolution of disputes of right or unfair labour
practices which are disputes of right, following the enactment of the
Labour Amendment Act
No.5 of 2015.
14.
The matter was referred back to the Labour Court for directions on
how to proceed in light of the amendment to the provisions of section
93 of the Act.
On 14 March 2016 the Labour Court directed that the matter be heard
by the labour officer in terms of section
93(5)(c) of the Act.
Section
93(5)(c) of the Act
empowers a labour officer, who has issued a certificate of no
settlement following a conciliation process relating to a dispute of
right or unfair labour practice which is a dispute of right, to make
a ruling relating to the matter specified thereunder.
15.
On 10 May 2016 the labour officer declined jurisdiction over the
matter on the basis that it was improperly before him. He held that
he had no jurisdiction to hear the matter since it was referred to
him from the Disciplinary Authority and not from the appeals officer
or the Appeals Committee. In his ruling the labour officer noted that
the applicant should have proceeded by way of an appeal to the Labour
Court in terms of section
92D of the Act
instead of pursuing remedies provided for in section
8 of the Code
of Conduct.
16.
On 20 September 2016 the applicant made an application for
condonation of late noting of an appeal to the Labour Court. The
application was dismissed for failure to exhaust local remedies. The
dismissal caused the applicant to file an appeal against the decision
of the Disciplinary Authority to the appeals officer/Appeals
Committee. He also sought condonation for the late noting of the
appeal.
17.
Without referring the matter to the appeals officer or the Appeals
Committee, the General Secretary of the applicant's former
employer, acting on legal advice, sent a letter to the applicant
advising him that his matter could not be heard as there was no
provision in the Code of Conduct empowering the employer to hear an
application for condonation. The applicant appealed to the labour
officer, who upheld the decision of the employer.
18.
When the matter went for confirmation before the Labour Court, it
refused to confirm the labour officer's ruling. It instead referred
the matter to the employer with a direction to set up an appeal
structure to hear the matter, failing which the applicant would be
deemed to have been reinstated without loss of salary.
19.
Dissatisfied with the decision of the Labour Court, the employer
lodged an appeal to the Supreme Court. It contended that in terms of
section
93(5a) of the Act,
the labour officer can only approach the Labour Court for
confirmation of his or her ruling when he or she has ruled against
the employer. The contention was that the Labour Court had
entertained a matter over which it had no jurisdiction. The applicant
conceded the point. The matter was struck off the roll on the ground
that the Labour Court had no jurisdiction over the matter.
20.
The applicant filed an application in the court a
quo
alleging that section
93(5a) of the Act
violated his right to equal protection of the law, enshrined in
section
56(1) of the Constitution.
The contention was that section
93(5a) of the Act
affords to the employer access to the remedy of testing the
substantive correctness or fairness of a labour officer's draft
ruling by subjecting it to confirmation proceedings but deprives an
employee of access to the same remedy.
21.
The contentions of the applicant found favour with the court a
quo.
It found that section
93(5a) of the Act
violates sections
56(1),
56(3),
68(1)
and 69(3)
of the Constitution.
22.
The question for determination is whether or not the issue of the
constitutionality of section
93(5a) of the Act
was properly before the court a
quo.
WHETHER
THE QUESTION OF THE CONSTITUTIONALITY OF SECTION 93(5a) OF THE ACT
WAS PROPERLY BEFORE THE HIGH COURT
23.
Confirmation proceedings are in the nature of a review. The Court, as
the highest court in constitutional matters, is endowed with the
power to review orders of constitutional invalidity made by lower
courts in order to control declarations of constitutional invalidity
made against the highest organs of State. See Pharmaceutical
Manufacturers Association of South Africa and Anor: In re Ex parte
President of the Republic of South Africa and Others
2000
(2) SA 674 (CC)
at paras 55-56.
24.
It is a general rule that a court should not decide constitutional
matters unless it is necessary to do so and the order of the court
will have a practical effect on the parties.
25.
In dealing with confirmation proceedings, the Court is required to
firstly establish whether the constitutional question decided by the
subordinate court was properly before it. The facts of the case must
have justified a challenge to the validity of the legislative
provision. In S
v Chokuramba
supra
at para 12 and p5 of the cyclostyled judgment the Court held as
follows:
“The
Court must first decide the question whether the constitutional
validity of the law or conduct of the President or Parliament in
respect of which the order of invalidity was made was a matter
properly before the court a quo for determination, regard being had
to the circumstances of the case: Zantsi v Council of State, Ciskei
and Ors 1995
(4) SA 615 (CC)
para 8.”
26.
For a matter raising the question of the constitutionality of
legislation to have been properly before a court of law, certain
principles would have been observed. A party complaining of the
invalidity of a legislative provision must be able to demonstrate
that he or she or it has been harmed by the operation of the law the
constitutionality of which is sought to be impugned, and that the
order of the court will have some practical effect on the protection
of his, her or its rights.
27.
In Ashwander
v Tennessee Valley Authority
297 U.S. 288 (1936) at 346-347, the Supreme Court of the United
States of America held that:
“1.
The Court will not pass upon the constitutionality of legislation in
a friendly, non-adversary, proceeding, declining because to decide
such questions 'is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy
between individuals. It never was the thought that, by means of a
friendly suit, a party beaten in the legislature could transfer to
the courts an inquiry as to the constitutionality of the legislative
act.'
Chicago
& Grand Trunk Ry. v Wellman, 143 U.S. 339, 143 U.S. 345. Compare
49 U.S. Veazie, 8 How. 251; Atherton Mills v Johnston, 259 U.S. 13,
259 U.S. 15.
2.
The
Court will not 'anticipate a question of constitutional law in
advance of the necessity of deciding it'.
Liverpool,
N.Y. & P. S.S. Co. v Emigration Commissioners, 113 U.S. 33, 113
U.S. 39; [Footnote 2/5] Abrams v Van Schaick, 293 U.S. 188; Wilshire
Oil Co. v United States, 295 U.S. 100.
'It
is not the habit of the Court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case.'
Burton v United States, 196 U.S. 283, 196 U.S. 295.
3.
The
Court will not 'formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied.'
Liverpool, N.Y. & P. S.S. Co. v Emigration Commissioners, supra;
compare Hammond v Schapp Bus Line, 275 U.S. 164, 275 U.S. 169-172.
5.
The
Court will not pass upon the validity of a statute upon complaint of
one who fails to show that he is injured by its operation.”
(the underlining is for emphasis)
28.
In Liverpool,
New York and Philadelphia Steamship Co v Commissioners of Emigration
113 U.S. 33 (1885) the Supreme Court of the United States of America
at p39 held that:
“It
has no jurisdiction to pronounce any statute, either of a State or of
the United States, void because [it is] irreconcilable with the
Constitution
except as it is called upon to adjudge the legal rights of litigants
in actual controversies. In the exercise of that jurisdiction, it is
bound by two rules, to which it has rigidly adhered: one, never to
anticipate a question of constitutional law in advance of the
necessity of deciding it; the other, never to formulate a rule of
constitutional law broader than is required by the precise facts to
which it is to be applied.”
29.
An analysis of the facts of the case shows that the applicant was
aggrieved by his dismissal from employment by his former employer in
terms of section
6 of the Code
of Conduct. While he was advised by his former employer to appeal in
terms of section
8 of the Code
of Conduct, that provision does not provide for appeals against
decisions in disciplinary hearings conducted under section
6 of the Code
of Conduct. He ought instead to have appealed to the Labour Court in
terms of section
92D of the Act.
The section provides that:
“92D
Appeals to the Labour Court not provided for elsewhere in this Act
A
person who is aggrieved by a determination made under an employment
code, may, within such time and in such manner as may be prescribed,
appeal to the Labour Court.”
30.
The facts illustrate that, due to a misunderstanding of the law, the
applicant pursued wrong remedies. He referred the matter to the
labour officer in terms of section
8(6) of the Code
of Conduct. The labour officer correctly decided that the applicant
had used a wrong remedy because section
8(6) of the Code
of Conduct created a right of appeal in respect of decisions of the
employer, the appeals officer or the Appeals Committee. The matter of
the complaint would have had to relate to the decision of the body
concerned on an issue before it on appeal or the manner in which it
handled the appeal. There must have been an appeal before the body
concerned.
31.
Section
8(6) of the Code
of Conduct reads as follows:
“(6)
A person or party who is aggrieved by a decision or manner in which
an appeal is handled by his or her employer or the Appeals Officer or
Appeals Committee, as the case may be, may refer the case to a Labour
Officer or an Employment Council Agent, as the case may be, within 7
working days from the day of receipt of such decision.”
32.
The applicant had not appealed to a body constituted for the purposes
of section
8(6) of the Code
of Conduct. He could not have approached the labour officer in terms
of section
8(6) of the Code
of Conduct in respect of a matter not arising from the exercise of
powers by any of the bodies referred to in the subsection.
33.
The Labour Court was required to consider the application for
condonation of non-compliance with the rules governing the noting of
appeals to it and extension of time within which to appeal. It failed
to determine an issue that was before it. The failure vitiated the
order given. See PG
Industries (Zimbabwe) Ltd v Bvekerwa and Ors
16-SC-053,
at p7 of the cyclostyled judgment.
34.
The applicant's matter did not at any time fall within the ambit of
the provisions of section
93(5a) of the Act.
What is provided for under section
93(5a) of the Act
are acts which a labour officer, who would have made a draft ruling
and order in terms of subsection (5a) of section
93,
must do in accordance with the procedure prescribed for reference of
the draft ruling and order to the Labour Court for confirmation.
Section
93(5a) of the Act
cannot be viewed in isolation from the other provisions of section
93 of the Act,
particularly subsections (3), (5) and (5c), from which it derives the
cause for its subject matter. No acts which were performed, or which
were required to be performed, by a labour officer fell under the
relevant provisions of section
93 of the Act
to give rise to the question of the constitutionality of section
93(5a).
35.
It is not apparent how the impugned section injured the applicant, as
the root of his grievance stemmed from the decision to dismiss him
made by the Disciplinary Authority. A declaration of constitutional
invalidity would not in any way benefit the applicant. It would not
change the status of his dismissal. Nor would it provide him with a
remedy.
36.
In Uthukela
District Municipality and Others v President of the Republic of South
Africa and Others
2003
(1) SA 678 (CC)
at paras 11-12 it was held that:
“If
its order will have no practical effect, this Court will not deal
with confirmation proceedings. If the order may, despite the repeal
of the legislation under consideration, have some practical effect on
the parties or on others, the Court will in its discretion decide
whether or not to deal with the confirmation. In doing so all the
circumstances of the case will be taken into account. Factors that
must be taken into account include the nature and extent of any
practical effect the order may have, 'the importance of the issue
raised, its complexity, and the fullness of the argument on the
issue'.”
There
is no proper order for confirmation in terms of section
175(1) of the Constitution.
GARWE
JCC: I agree
MAKARAU
JCC: I agree
GOWORA
JCC: I agree
PATEL
JCC: I agree
GUVAVA
JCC: I agree
MAVANGIRA
JCC: I agree
MAKONI
JCC: I agree
BERE
JCC: I agree
Civil
Division of the Attorney General's Office, respondents legal
practitioners
