GOWORA
AJCC:
This
is an application for leave to appeal to the Constitutional Court
(“the Court”) against a decision of the Supreme Court (“the
court a
quo”)
made in terms of Rule 32(2) of the Constitutional Court Rules, 2016
(“the Rules”).
The
premise on which the application is based is that the decision of the
court a
quo
violated the applicant`s fundamental rights.
FACTUAL
BACKGROUND
The
facts of this matter are largely common cause. The applicant was
employed by the respondent as a personal assistant to the Managing
Director, Transport Division. By letter dated 15 June 2009, the
applicant was notified that the respondent had restructured its
divisions to avoid going into insolvency and that the restructuring
had resulted in the abolishment of her post. Consequent thereto, she
was offered two options, viz: a retrenchment package or
alternatively, placement on garden leave pending redeployment to any
other available post within the respondent. Altogether, the exercise
affected nine other employees in the respondent's transport
division whose posts had been similarly abolished.
The
applicant expressed her displeasure with the respondent's decision
by issuing a memorandum to her employer requesting a grievance
hearing. The hearing did not take place. Aggrieved by the
respondent's failure to arrange the hearing, the applicant referred
the dispute to a labour officer. The matter proceeded to conciliation
but no settlement was reached and the dispute was referred to
compulsory arbitration under the provisions of section 93 of the
Labour Act [Chapter
28:01]
(“the Act”).
On
30 October 2009, the arbitrator issued an arbitral award and ordered
that the applicant be reinstated without loss of salary and benefits,
and that, if reinstatement was no longer tenable, the parties should,
within 30 days, negotiate a severance package in lieu of
reinstatement. The respondent failed to reinstate the applicant
within 30 days but thereafter offered the applicant a position as
personal assistant to the warehouse director. She accepted the offer.
However,
the applicant was still dissatisfied with her conditions of service.
She raised new grievances arising from her new workstation, namely,
lack of access to the internet, the requirement that she share a
printer, and the general condition of her office.
At
the end of March 2010, the applicant resigned from employment after
having worked a mere six days of that month. She averred that the
office allocated to her made her ill. Consequent to that, the
applicant approached a labour officer alleging that she had been
constructively dismissed by the respondent. The dispute was
conciliated to no avail and the matter was once again referred to
arbitration.
The
arbitrator found that the applicant had failed to prove her claim for
constructive dismissal and found for the respondent. Aggrieved by
that decision, the applicant noted an appeal to the Labour Court on
the ground that the arbitrator had grossly misdirected himself by
concluding that there was no evidence to prove constructive
dismissal. The Labour Court dismissed the appeal on the basis that
the applicant had failed to prove how the absence of access to the
internet, use of a communal printer, the belated reinstatement, the
condition of the office and alleged unilateral variation of her
conditions of service, could be interpreted as an attempt to
constructively dismiss her from employment.
The
applicant was still aggrieved and noted an appeal to the court a
quo.
The
issue for determination before that court was whether or not the
applicant had been constructively dismissed.
The
court a
quo
held that the Labour Court had not misdirected itself in finding that
the applicant had failed to prove her claim that she had been
constructively dismissed by the respondent. The appeal was, as a
consequence, dismissed with an appropriate order of costs.
The
applicant has approached this Court seeking leave to appeal against
the decision of the court a
quo.
She
alleges that the court a
quo`s
decision made “conflicting and incorrect findings which
cumulatively denied the applicant the benefit of her constitutional
rights and negated the granting of the relief prayed for.”
It
is also alleged that the court a
quo
disregarded the constitutional matters raised before it, mainly that
the applicant was deliberately housed in an inhabitable office which
was making her ill.
The
decision of the court a
quo
is also impugned on the basis that it allegedly condoned the
respondent's “reprehensible conduct” in forcing the applicant
to use a staircase which she said was not gender-sensitive and, in
the process, subjecting her to an acute invasion of the most intimate
core of her privacy and impaired her dignity.
In
that regard, the applicant claims that her fundamental rights as
enshrined in sections 51, 56(1), 69(1), and 164(1) of the
Constitution were violated by the decision of the court a
quo.
The
application is opposed.
The
respondent avers that there was no constitutional matter before the
court a
quo
and, therefore, no proper appeal may lie against its decision. The
respondent also submitted that the applicant is simply aggrieved by
the general decision of the Supreme Court on the legal issue
pertaining to her constructive dismissal. Lastly, the respondent
prays that the application is ill-conceived and prays for its
dismissal.
ISSUE
FOR DETERMINATION
The
crisp issue for determination is whether or not the application for
leave to appeal is properly before the Court.
THE
LAW AND THE FACTS
Section
167(5(b)
of
the Constitution provides that the Rules must allow a person, when it
is in the interests of justice and with, or without leave of the
court, to appeal directly to the Court from any other court. Rule
32(2) is the pertinent rule in that regard and it gives effect to
section 167(5(b)
of
the Constitution. It reads:
“(2)
A litigant who is aggrieved by the decision of a court of subordinate
court on
a constitutional matter only,
and wishes to appeal against it to the Court, shall within fifteen
days of the decision, file with the Registrar an application for
leave to appeal and shall serve a copy of the application on the
other parties to the case in question, citing them as respondents.”
(emphasis added)
In
The
Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni
2017 (1) ZLR 14 (CC) the Court eloquently set out the requirements
which ought to be satisfied in an application of this nature at
p15H-16E as follows:
“The
requirements for leave to appeal to the Court from a subordinate
court are these:
(a)
Firstly, there must be a constitutional matter for determination by
the Constitutional Court on appeal. The reason is that in terms of
section 167(1) of the Constitution the Constitutional Court is the
highest court in all constitutional matters and decides only
constitutional matters and issues connected with decisions on
constitutional matters. Rule 32(2) of the Constitutional Court Rules
makes it clear that only a litigant who is aggrieved by the decision
of a subordinate court on
a constitutional matter only
has a right to apply for leave to appeal to the Constitutional Court
(the underlining is for emphasis).
Rule
32(3)(c) of the Constitutional Court Rules requires that the
application for leave to appeal should contain or have attached to it
'a statement setting out clearly and concisely the constitutional
matter raised in the decision.'
In
other words, there must have been a constitutional matter raised in
the subordinate court by the determination of which the dispute
between the parties was resolved by that court.
If
the subordinate court had no constitutional matter before it to hear
and determine, no grounds of appeal can lie to the Constitutional
Court as a litigant cannot allege that the subordinate court
misdirected itself in respect of matter it was never called upon to
decide for the purposes of the resolution of the dispute between the
parties. See Nyamande
& Anor v Zuva Petroleum
CCZ
8/15.
Under
section 332 of the Constitution, a constitutional matter is one in
which there is an issue involving the interpretation, protection, or
enforcement of the Constitution. Absence of an issue raised in the
proceedings in the subordinate court requiring the interpretation,
protection, or enforcement of a provision of the Constitution in its
hearing and determination would invariably be sufficient evidence of
the fact that no constitutional matter arose in the subordinate
court.
(b)
Secondly, the applicant must show the existence of prospects of
success for leave to be granted. In Nehawu
v University of Cape Town
2003 (2) BCLR 154 (CC), the Constitutional Court of South Africa held
that the applicant must show that there are reasonable prospects that
the Constitutional Court 'will reverse or materially alter the
judgment if permission to bring the appeal is given.'”
These
requirements were aptly summarised in Bonnyview
Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor
CCZ 6/19 at p 5 of the cyclostyled judgment as follows:
“1.
The applicant must intend to apply for leave to appeal against a
decision of a subordinate court on a constitutional matter.
2.
The constitutional question must be clearly and concisely set out.
3.
The applicant must demonstrate prospects of success on appeal.”
The
requirement that an applicant must intend to appeal against a
decision of a lower court on a constitutional matter only must be
rationalized in juxtaposition with section 167(1) of the Constitution
which outlines the narrow jurisdiction of the court. Section 167(1)
states the following:
“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 para 9(2) of the Fifth Schedule.” (emphasis added)
In
the same respect, the Court in Sadziwani
v Natpak (Pvt) Ltd & Ors
CCZ
15/19, emphasized its special jurisdiction in the following terms at
pp17-18 of the cyclostyled judgment:
“The
Constitutional Court is a specialised court endowed with the
purposefully narrow jurisdiction to determine constitutional matters
only. The language of section 167(1)(b) of the Constitution is clear
enough in this respect. The Court is established in terms of section
166 of the Constitution and section 167 provides for the jurisdiction
of the Court.
In
the
Lytton
Investments case supra,
at p9 of the cyclostyled judgment, the Court emphasised the special
jurisdiction of the Court in the following terms:
'The
Court is a specialised institution, specifically constituted as a
constitutional court with the narrow jurisdiction of hearing and
determining constitutional matters only. It is the supreme guardian
of the Constitution and uses the text of the Constitution as its
yardstick to assure its true narrative force. It uses constitutional
review predominantly, albeit not exclusively, in the exercise of its
jurisdiction.'
Where
no constitutional issues are pertinent, the jurisdiction of the Court
under section 167 of the Constitution
is
not triggered. In Brink
v Kitshoff NO
1996
(4) SA 197 (CC), the South African Constitutional Court had the
following to say at p213E-F:
'[28]
The jurisdiction of this Court is limited to the interpretation,
protection, and enforcement of the provisions of the Constitution (in
terms of section 98(2) of the Constitution) and any other matter over
which it is expressly given jurisdiction. Neither the question of
when an estate becomes entitled to the proceeds of a life insurance
policy in terms of section 44 nor the question of when a concursus
creditorum
will be initiated, are constitutional questions. This Court
accordingly does not have jurisdiction over such matters.'
The
Court is a specialist court and not a court of general jurisdiction.
The
principle of constitutional supremacy ensures that the jurisdiction
of the Court, as defined in section 167 of the Constitution, is
narrowly defined and given constitutional protection. In addition,
the very definition of a constitutional matter itself, in terms of
section 332 of the Constitution, presupposes that not every matter is
a constitutional matter. If the resolution of a matter does not
require the protection, interpretation or enforcement of the
Constitution, it is not a constitutional matter and the Court cannot
assume jurisdiction over it.”
Rule
32 makes it clear that a party must intend to apply for leave to
appeal against a decision of a subordinate court on a constitutional
matter only. Further to that, the applicant must clearly and
concisely set out the constitutional question that was raised before
and determined by the lower court and lastly the applicant must
demonstrate prospects of success on appeal.
To
succeed, therefore, the applicant must first demonstrate that the
court a
quo
made a decision on a constitutional matter which decision is
appealable to the court in terms of Rule 32.
In
considering this issue, the remarks in the Cold
Chain
case are pertinent. In that case, the court discussed the test to be
applied in determining whether or not the court a
quo
determined a constitutional matter. It held as follows at p17A-B:
“The
principles to be applied in the determination of the question whether
the Supreme Court determined a constitutional matter are clear. It is
not one of those principles that the court against whose judgment
leave to appeal is sought should have referred to a provision of the
Constitution. There
ought to have been a need for the subordinate court to interpret,
protect or enforce the Constitution in the resolution of the issue or
issues raised by the parties. The constitutional question must have
been properly raised in the court below. Thus, the issue must be
presented before the court of first instance and raised again at or
at least be passed upon by the Supreme Court, if one was taken.”
(emphasis added)
In
casu,
it is apparent that the court a
quo
did not make a determination on a constitutional matter. What was
before it was a simple matter of labour law, more specifically
relating to the issue of whether or not the applicant had been
constructively dismissed by the respondent. It identified the issue
for determination in the following words at p12 of the cyclostyled
judgment:
“WHETHER
OR NOT THE COURT A
QUO
CORRECTLY FOUND THAT THE APPELLANT WAS NOT CONSTRUCTIVELY DISMISSED?
The
appellant is challenging the findings of the court a
quo.
The
position of our law on such a challenge is settled. The findings of a
lower court cannot be interfered with unless it is proven that they
are grossly irrational. The law was clearly stated in
ZINWA v Mwoyounotsva
SC
28/15, where this Court held that:
“It
is settled that an appellate court will not interfere with factual
findings made by a lower court unless those findings were grossly
unreasonable in the sense that no reasonable tribunal applying its
mind to the same facts would have arrived at the same conclusion; or
that the court had taken leave of its senses; or, put otherwise, the
decision is so outrageous in its defiance of logic that no sensible
person who had applied his mind to the question to be decided could
have arrived at it, or that the decision was clearly wrong.
In
determining this appeal I will assess the correctness or otherwise of
the determinations of the court a
quo
under the subheads it used in determining the appeal before it.”
In
deciding that the applicant had not been constructively dismissed by
the respondent, the court a
quo
did not interpret, protect or enforce the provisions of the
Constitution.
There
was, before the court, no constitutional issue for determination.
Instead,
the issue before the court was principally one on employment and it
considered and applied the law on constructive dismissal as contained
in section 12B(3)(a) of the Labour Act [Chapter
28:01].
As
such, the issue of whether or not the applicant was constructively
dismissed is a matter that fell entirely in the realm of employment
law.
The
conclusion, therefore, is that the court a
quo
did not decide a constitutional matter.
From
a perusal of the papers filed by the applicant, it appears that she
is dissatisfied with the findings of the court a
quo.
The gravamen of her attack on the court a
quo's
decision evinces a classic dissatisfaction with the findings of the
court and nothing more.
The
grounds of appeal and the relief that the applicant seeks should
leave to appeal be granted are telling in this regard. They are
couched in the following manner:
“GROUNDS
OF APPEAL
1.
The court a
quo
erred in finding that the appellant was not constructively dismissed.
2.
The court a
quo
erred by condoning a deliberate breach of statutory duty and
violation of constitutional rights by the respondent.
3.
The court a
quo
made a gross misdirection on the facts, amounting to a misdirection,
in overlooking evidence, not exercising its equitable discretion at
all, notwithstanding facts proffered which manifested good cause for
the relief sought for constructive dismissal. (sic)
4.
The court a
quo
committed a serious misdirection and acted capriciously by failing to
exercise its discretion properly through an award of costs against
the appellant where there were no exceptional or substantial reasons
which warranted the same. (sic)
WHEREFORE,
after the documents filed of record and hearing counsel:
1.
The appeal succeeds with costs.
IT
IS DECLARED:
2.
That the applicant's right to protection of the law enshrined in
section 56(1) of the Constitution of Zimbabwe was infringed by the
Supreme Court of Zimbabwe, in Judgment No. SC149/20 in the matter
between Rita
Marque Mbatha v National Foods (Pvt) Ltd,
SC686/19, in that the Supreme Court failed to appreciate that it was
obliged to set aside the Labour Court judgment No. LC/H/306/2019
based on the doctrine of stare decisis.
ACCORDINGLY,
IT IS ORDERED:
3.
That the Judgment No. SC149/20 of the Supreme Court in Case No.
SC686/19 be and is hereby declared null and void and of no force or
effect and is set aside.
4.
The appeal [against the Labour Court`s finding that the applicant was
not constructively dismissed] is allowed with costs.
5.
The arbitral award handed down on the 21st
of August 2010 is hereby varied to read as follows:
(a)
The claimant was constructively dismissed.
(b)
The respondent is ordered to pay claimant damages for dismissal.
(c)
Each party to bear its own costs.
6.
In the event that parties fail to agree on the quantum of damages
payable to the appellant, either party may approach the Labour Court
on a matter of urgency for quantification thereof.”
What
emerges from the above is that the applicant does not seek relief
from an allegation of a perceived violation of her fundamental rights
as enshrined in the Constitution. She does not seek relief where the
enforcement, protection, or interpretation of the Constitution is the
cause for determination.
What
she essentially seeks is the setting aside of the decision of the
court a
quo
on
the merits of the dispute between herself and the respondent, that of
alleged constructive dismissal. Consequently, absent a constitutional
issue that was raised before and determined by the court a
quo,
the applicant cannot successfully approach the Court for an order for
leave to appeal.
The
institution of an application for an order for leave to appeal to the
Court presupposes that there is a constitutional matter which was
determined by a lower court, which matter is appealable to the Court.
The purpose of the application would be to show that it is in the
interests of justice that the constitutional matter concerned be
heard and determined by the Court, it being common cause that section
167(5)(b) of the Constitution makes
the interests of justice a paramount consideration in determining
whether or not the leave to appeal against a decision of a lower
court should be granted.
Having
considered all of the above, it cannot be gainsaid that no
constitutional issues arise for determination consequent to the
alleged infringements of the applicant's constitutional rights. The
remarks of MALABA DCJ (as he then was) in Chiite
and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central
Trust
CCZ10/17 are apposite. He stated the following at pp5-6 of the
cyclostyled judgment:
“What
the Court has before it are disgruntled litigants who have attempted
to try and obtain redress under the guise of an appeal on a
constitutional matter. Their criticism of the judgment of the Supreme
Court set out in what purports to be grounds of appeal is no more
than a raging discontent over the factual findings of the Supreme
Court. The grievances of the losers in the Supreme Court have all the
hallmarks of a mere dissatisfaction with the factual findings by that
Court. See De
Lacy and Anor v South African Post Office
2011(a) BCLR 905 (CC) paras 28 and 57.”
Having
found that no constitutional issue was placed before and determined
by the court a
quo,
it follows that its decision was not on a constitutional matter. This
means that the decision is final and non-appealable.
Section
169(1) of the Constitution gives constitutional recognition to the
principle of finality in litigation in non-constitutional matters and
it provides the following:
“169
Jurisdiction of Supreme Court
(1)
The Supreme Court is the final court of appeal for Zimbabwe, except
in matters over which the Constitutional Court has jurisdiction.”
The
above constitutional provision must be read together with section
26(1) of the Supreme Court Act [Chapter
7:13]
which states that:
“26
Finality of decisions of Supreme Court
(1)
There shall be no appeal from any judgment or order of the Supreme
Court.”
The
position of the law as regards the finality of non-constitutional
decisions by the Supreme Court was put beyond dispute by MALABA CJ in
Lytton
Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor
CCZ11/18 at p22 of the cyclostyled judgment as follows:
“A
decision of the Supreme Court on any non-constitutional matter in an
appeal is final
and binding on the parties and all courts except the Supreme Court
itself. No court has the power to alter the decision of the Supreme
Court on a non-constitutional matter. Only the Supreme Court can
depart from or overrule its previous decision, ruling, or opinion on
a non-constitutional matter. The onus
is
on the applicant to allege and prove that the decision in question is
not a decision on the non-constitutional matter.”
The
conclusion I have come to is that there is no proper application for
leave to appeal before this Court.
In
my view, this finding should in ordinary course conclude the matter.
However, the applicant has sought to impugn the decision of the court
a quo, and the nature of the applicant's attack on the decision of
the court a
quo
deserves comment from this Court.
The
basis of the applicant's attack against the decision of the court a
quo
is that it allegedly violated her fundamental rights. As has been
established above, it is common cause that the matter before the
court a
quo
was one involving non-constitutional issues relating to the
applicant`s alleged constructive dismissal. The basis of the present
application is that the conduct of the court a
quo
resulted in a constitutionally objectionable decision.
An
attack against a judgment of a subordinate court on the basis that
the judgment violates a fundamental right of the applicant must be
brought to the court in terms of section 85(1) of the Constitution.
It cannot be brought to court by way of an appeal against a decision
of the court a
quo.
This
position was settled in Lytton
Investments (Pvt) Ltd
case
supra
at
pp15-16 of the cyclostyled judgment wherein the court stated:
“In
Prosecutor
General Zimbabwe v Telecel Zimbabwe (Pvt) Ltd
2015 (2) ZLR 422 (CC)
the
applicant sought to approach the Court in terms of sections 167(1)
and 176 of the Constitution. He sought an order setting aside a
judgment of the Supreme Court directing him to issue a certificate of
nolle
prosequi
to Telecel Zimbabwe (Pvt) Ltd. No
constitutional matter had been raised before the Supreme Court. The
applicant approached the Court because he was dissatisfied with the
judgment. He did not approach the Court in terms of section 85(1) of
the Constitution.
The
Court dismissed the application because the applicant had failed to
establish the basis on which he sought to approach it directly,
seeking an order setting aside a Supreme Court judgment on a
non-constitutional matter. One of the preliminary points on which the
application was dismissed was that it was not brought in terms of
section 85(1) or other constitutional provisions that provide for
such direct approach'.
At
p426B-C of the judgment GWAUNZA JCC
(as
she then was) said:
'Direct
applications to the Constitutional Court are to be made only
in terms of the provisions referred to above, as well as in terms of
and as provided for in section 85(1). The specialised nature of the
applications referred to in section 167(1)b) and section 167(2)(b),
(c), and (d), however, makes these provisions irrelevant to this
case.
Therefore,
the only way the applicant could have validly brought an application
directly to this Court would have been in terms of section 85(1). As
conceded by his counsel, the applicant did not do so, but sought to
rely on the two provisions mentioned.'
After
quoting section 85(1) of the Constitution, HER
LADYSHIP
went on to say:
'What
is clearly evident from this provision is that the relief sought and
to be granted by the court in terms of this section must
relate to fundamental rights and freedoms enshrined in the relevant
Chapter,
and nothing else. Such relief may include a declaration of the rights
said to have been or about to be violated. The applicant did not
allege that the right he alleges was violated by the Supreme Court
was an enshrined fundamental right.'
The
authorities show that the question whether a decision of the Supreme
Court in a case involving a non-constitutional issue has violated or
is violating a fundamental right or freedom enshrined in Chapter
IV
of
the Constitution is a matter falling within the original jurisdiction
of the Court. The question can be brought directly to the Court for
determination in terms of section 85(1) of the Constitution when
doing so is in the interests of justice.
The
question whether direct access is in the interests of justice arises
because the same question can be placed before a lower court sharing
concurrent jurisdiction with the Court.” (emphasis added)
DISPOSITION
From
the foregoing, it stands to reason that the applicant has failed the
first rung of her cause. A perusal of the papers filed by the
applicant established a failure on her part to meet the first
requirement of Rule 32 of the Rules which requires that a litigant
must intend to appeal against a decision of a lower court on a
constitutional matter only.
The
applicant has not demonstrated that a constitutional matter ever
arose or was determined by the court a
quo.
This in my view, obviates the need to consider the other requirements
prescribed under Rule 32.
Ergo,
absent a constitutional issue raised before and determined by the
court a
quo,
the remedy of appeal is not available to the applicant.
It
is now settled that it is only a decision of a subordinate court on a
constitutional matter that can be appealed to the Court. It is
accepted that there was no constitutional issue that was raised
before and determined by the court a
quo.
The
result, therefore, is that the present application has no merit and
ought not to succeed.
It
is accordingly ordered as follows:
“The
application be and is hereby dismissed with no order as to costs.”
GARWE
AJCC: I
agree
HLATSHWAYO
AJCC: I
agree
Dube
Manikai & Hwacha, respondent's legal practitioners
