Opposed
Application
1.
MAFUSIRE
J:
This
judgment is given in default of appearance by the respondents. I am
much concerned by the conduct of the officials from the office of the
Attorney General, the second respondent herein.
2.
This was an opposed application. The respondents, through the
Attorney General, filed a notice of opposition. The record indicates
that the notice of set down was served personally on one Talent
Undenge, the law officer in the Attorney General's office who runs
its civil division at Masvingo. But on the day of hearing, not only
was there no appearance by anyone from the Attorney General, but also
there was not a word or any advice on what the respondents position
was. Yet the relief sought by the applicant has far reaching
consequences.
3.
The relief sought by the applicant has far reaching consequences in
that he wants a declaration of constitutional invalidity of section
93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the
Labour (National Employment Code of Conduct) Regulations, 2006, SI 15
of 2006 (“the
national employment code of conduct”).
4.
The applicant says that section 93(5a) of the Labour Act violates
section
68(3)
and section
69(2) of the Constitution;
that section 8(3) of the national employment code of conduct violates
the right to the protection of the law as guaranteed by section 56(1)
of the Constitution and that both section 93(5a) of the Labour Act
and section 8(3) of the national employment code of conduct
contravene section
134(b) of the Constitution.
As such he wants his case referred to the Constitutional
Court for final determination allegedly in terms of section
167(3) of the Constitution.
5.
In simple terms, section
93(5a),
a recent amendment to the Labour Act (i.e. in 2015), empowers a
labour officer to apply to the Labour Court for the enforcement of
his or her determination against an employer. Only the employer gets
cited in such an application. For that, the applicant says, the
provision discriminates against employees, something contrary to
section
68
and section
69 of the Constitution.
These two provisions of the Constitution
guarantee to every person the right to administrative justice and to
a fair hearing.
6.
As for section 8(3) of the national employment code of conduct, the
applicant wants it struck off on the ground that it contains a
typographical error in that it refers to a non-existent provision. He
says because of it, he became non-suited in his dispute against his
employer. Yet section 56(1) of the Constitution guarantees to
everyone the right to equal treatment and protection before the law.
On the other hand, section
134(b) of the Constitution
does not permit a statutory instrument (such as the national
employment code of conduct) to infringe or limit any of the rights
and freedoms set out in the Declaration of Rights.
7.
The Constitution
is the supreme law of Zimbabwe. No other law can say something to the
contrary and remain valid. The courts have the power and mandate to
declare a statutory provision as being inconsistent with the
Constitution.
But this function is not a light matter. It is not a power that is
exercised arbitrarily. Laws are made by Parliament, a legislative
body made up of two houses. The men and women who sit in them take
time to scrutinise, debate and critique a law before it is passed. It
is only in cases where the court is completely satisfied that a
particular law is at war with the Constitution
that it will strike it down.
8.
In this case, with the respondents in default, I could have simply
granted a default judgment and announced it ex
tempore
on the day of hearing. But given what is at stake, I considered it
prudent to reserve my decision and think through it properly, more so
as the applicant was not represented. Even though it was evident
someone with a glimpse of legal knowledge was advising and drafting
the papers for the applicant behind the scenes, it was not that easy
to quite grasp the factual matrix of the dispute and its trajectory
from the moment it arose. I ended up asking the applicant to file
supplementary papers on what exactly had transpired, both at the
workplace and in the labour “courts”.
9.
The matter is an employment dispute. It has a chequered past. The
dispute erupted at the workplace. It bobbed there for a while.
Eventually it bounced into the chambers of the labour officer. From
there it escalated to the Labour Court. After that it became a game
of ping
pong.
The matter was thrown back to the labour office; back to the Labour
Court; back to the labour office again; back to the Labour Court;
back to the workplace; back to the labour office; back to the Labour
Court and finally to the Supreme Court. The superior court did not
decide the matter. The applicant felt unstuck. He finally came to the
High Court.
10.
I heard the applicant on 27 August 2018. He tried his best. But at
the end I was none the wiser. The employer was not cited as a party.
As said already, the Attorney General was in default. He and the
first respondent had been barred anyway for failure to file heads of
argument in accordance with Order 32 Rule 238(2) and (2a) of the
Rules of this Court. But in a matter with such a rugged past, and
given the nature of the relief sought, I could do with some properly
reasoned arguments and a graceful presentation. Yet the applicant is
entitled to administrative justice in terms of section
68 of the Constitution.
11.
Rule
238(2b)
says where a respondent fails to file heads of argument timeously he
or she is barred. Thereafter the court or judge may deal with the
matter on the merits or direct that it be set down for hearing on the
unopposed roll. I opted to hear the matter on the merits.
12.
The facts were these. In the beginning the applicant was an employee
of a trade union, the Zimbabwe Educational Scientific, Social and
Cultural Workers Union. He was a regional officer based at Masvingo.
He was dismissed for misconduct. The dismissal followed a
disciplinary process in terms of the national employment code of
conduct.
13.
The applicant wanted to appeal the dismissal. He said he faced a
dilemma. The dilemma stemmed from what he perceived to be a
typographical error in the national employment code of conduct.
Evidently there is such an error in those regulations. Section
8
governs appeals at, and from the workplace. It provides for internal
appeal structures at the work place in the form of an Appeals Officer
or Appeals Committee, depending on the size of the establishment or
workplace. Such internal appeal structures should not exceed two
appeal authorities.
14.
In terms of section 8(3) of the national employment code of conduct a
person aggrieved by a decision can appeal in writing and within seven
working days to the Appeals Officer or Appeals Committee. There is a
problem with this sub-section. It is imprecise. It does not say whose
decision is appealable to the Appeals Officer or Appeals Committee.
It says it is a decision “…
made in terms of section (2) …”
15.
But section (2) does not exist. The substantive section
2
is an interpretation provision. It has nothing to do with
disciplinary proceedings. Disciplinary proceedings such as would lead
to the termination of employment are governed by section
6.
So section
2
cannot be the provision section
8(3)
purports to refer to. At any rate, it is a technique of legislative
drafting not to use brackets for numerals representing substantive,
standalone sections in statutes.
16.
So if the reference in section
8(3)
cannot be to a substantive section
2,
one
would assume it is meant to refer to section
8(2).
But again that cannot be. Section
8(2)
does not deal with disciplinary processes. It is the one that
provides for the internal appeal structures that should not exceed
two authorities.
17.
The applicant says faced with such a dilemma he looked elsewhere. He
discovered that section
8(6)
is another provision dealing with appeals. That provision says a
person who is aggrieved by a decision or manner in which an appeal is
handled by the employer or the Appeals Officer or Appeals Committee
may refer the case to a Labour Officer or an Employment Council
within seven days.
18.
The applicant says he considered it was section
8(6)
that applied to his situation because section
8(3)
referred to a non-existent provision. At any rate, his employer had
no appeal structures as envisaged by the national employment code of
conduct. He referred his case to the Labour Officer the same day that
he received the dismissal penalty. That was in March 2015.
19.
In terms of section
8(7)
a Labour Officer to whom a matter is referred in terms of section
8(6)
can dispose of it in one of several ways set out in section 93 of the
Labour Act. Before this section was amended in 2015, these ways
included conciliation or a reference to compulsory arbitration. The
Labour Officer had thirty days to dispose of the matter. It was
through the amendment in 2015 that the Labour Officer was now clothed
with the power to approach the Labour Court as aforesaid.
20.
After the applicant had referred his dispute, the Labour Officer, for
one reason or other, did not dispose of it within the prescribed
thirty days. Two months after the expiry of the thirty days, the
applicant applied to the Labour Court, asking it to dispose of his
appeal in terms of section 93(7) of the Labour Act. That was in May
2015. Section
93(7)
is the provision that allows any party to a dispute to approach the
Labour Court to dispose of it where a Labour Officer has failed to
settle it through conciliation and has issued a certificate of no
settlement, or has, for any reason, refused to issue such a
certificate.
21.
The Labour Court, four months later, referred the matter back to the
Labour Officer with instructions to appoint an arbitrator to dispose
of the applicant's appeal. That was in September 2015. That did not
happen, apparently for two reasons:
(i)
firstly, the first respondent was phasing out the system of external
arbitrators. As such the applicant was advised that no arbitrator
could be appointed in line with the directive from the Labour Court.
(ii)
Secondly, the Labour Act had just been amended as aforesaid.
22.
Among others, the said section
93(5a)
had just been inserted. Disputes of right, as opposed to disputes of
interest, would now be resolved in accordance with the new
provisions. Among other things, once a Labour Officer made a finding
of unfair labour practice against an employer, he or she would have
to approach the Labour Court for his or her decision to be confirmed.
23.
The matter was referred back to the Labour Court by a Labour
Administration Officer who requested for directions. In March 2016,
the Labour Court gave such directions. It directed that the matter
was to be heard by a Labour Officer in terms of section
93(5)(c).
This is the provision that empowers a Labour Officer to find whether
or not an employer is guilty of an unfair labour practice. If he or
she makes such a finding, he or she can, among other things, order
the cessation of the unfair labour practice and direct the payment of
moneys and/or damages. With the newly introduced section
93(5a),
the Labour Officer is then to approach the Labour Court for
confirmation of his or her decision.
24.
The Labour Officer eventually set to hear tmatter in line with the
directive from the Labour Court. In May 2016 he gave his ruling. He
made a finding that he had no jurisdiction to determine the appeal.
His reason was that the first time the applicant had referred his
appeal to the Labour Officer (in March 2015) he had erred. He said in
terms of section 8 of the national employment code of conduct, no
appeal lies to the Labour Officer from a decision of a disciplinary
authority at the workplace. It is only an appeal decision, or the
conduct of an appeal authority, that may be referred to the Labour
Officer.
25.
So in the end the Labour Officer held that he had no jurisdiction to
determine the appellant's appeal because it was not an appeal
against an appeal decision, but an appeal against the decision of a
disciplinary authority in the first instance. Before this ultimate
conclusion, the Labour Officer had made the observation that instead
of appealing to the Labour Officer in terms of section 8 of the
national employment code of conduct as he had done, the applicant
ought to have appealed straight to the Labour Court, allegedly in
terms of section 92D of the Labour Act.
26.
Section 92D of the Labour Act is the one that governs appeals to the
Labour Court that are not provided for elsewhere in the Act. It says
a person who is aggrieved by a determination made under an employment
code, may appeal to the Labour Court in the manner and time
prescribed.
27.
In September 2016 the Labour Court confirmed the ruling of the Labour
Officer. But the applicant had applied to that court for condonation
for late noting of appeal. Condonation was refused “…
for failure to exhaust local forum.”
28.
The applicant went back to the workplace. He said heeding what the
Labour Officer had said about appeals lying to them only from an
appeal decision by, or conduct of, an appeals authority of the
employer, he filed an appeal to the appeals officer/appeals committee
a day after receiving the Labour Court's decision.
29.
He also sought condonation for the late noting of the appeal. But
without referring it to the appeals officer or committee proper, the
employer, through the General Secretary, acting on external legal
advice, dismissed the appeal and the request for condonation on the
basis that there was no provision for an application for condonation
in the national employment code of conduct. That was in October 2016.
30.
The applicant appealed to the Labour Officer. He lost. The conclusion
reached by the employer's General Secretary was upheld.
31.
The Labour Officer took his decision to the Labour Court for
confirmation, purportedly in line with the new section
93(5a).
The Labour Court declined to do so on the basis that the Labour
Officer had an inherent power to hear an application for condonation
which he should have exercised and that the decision by the employer,
which the Labour Officer had wrongly upheld, was irregular in that it
had been made by a fellow employee supplanting an appeals committee.
32.
The Labour Court referred the matter back to the workplace and
directed the employer to set up an appeals structure for the
determination of the applicant's appeal within thirty days, or such
extended period as might be granted. The Labour Court also directed
that in the evet that the employer failed to hear the appeal as
directed, then the applicant would automatically be reinstated
without loss of salary and benefits while the parties might be taking
their case to any next level. That was in May 2017.
33.
The employer was aggrieved by the decision of the Labour Court. It
appealed to the Supreme Court. It took a point in
limine
that by section 93(5a) of the Labour Act, only when a Labour Officer
has ruled against an employer is he or she required to approach the
Labour Court for confirmation of his or her decision, not, as was the
case in this matter, where the Labour Officer has ruled against the
employee.
34.
The applicant said he conceded the point in
limine.
He presumed the Supreme Court would uphold it because it had done so
in a previous case where the same point had been raised.
35.
The applicant felt he was back to nowhere. His appeal was never
determined on the merits. He felt the culprit was section 93(5a) of
the Labour Act that allows approaches to the Labour Court by a Labour
Officer only where he or she rules against the employer, but not
where he or she rules against the employee. The employee who loses
before a Labour Officer has nowhere else to go, whereas an employer
who loses before the same Labour Officer is actually and
automatically guaranteed another hearing before a court. The
applicant also felt that the ambiguity brought about by the error in
section 8(3) of the national employment code of conduct blocked his
right of access to the courts. He then turned to the High Court for
an order of invalidity against the two offending provisions.
36.
Interestingly, in their notice of opposition the respondents agreed
with the applicant in relation to section
93(5a).
They said:
“Respondent
concedes to the challenges against 93(5a) of the Labour Act [Chapter
28:01] as amended and has since sought to repeal the provision in its
current Labour Act amendment bill. I however deny that section 8(3)
of Statutory Instrument 15 of 2006 violates the Applicant's rights
for the reasons advanced in my paragraphs 9 and 10.”
37.
But despite their denial in regards to section 8(3) of the national
employment code of conduct, the respondents essentially conceded the
error. They said:
“Indeed
the said section makes reference to a section
2
which is not there but however a departure from the ordinary
grammatical interpretation of the section will lead to a reasonable
conclusion that the section being referred to is section
6.”
38.
Arguing that a diligens
paterfamilias
applying their mind to the intention of the Legislature would have
come to the logical conclusion that section 8(3) of the national
employment code of conduct meant to refer to section
6,
the respondents said the remedy sought by the applicant was
outrageous and should therefore be dismissed with costs.
39.
Justice must not only be done. It must also be seen to be done. The
respondents openly admit inherent problems or errors in pieces of
legislation made by, and administered by them. In relation to section
93(5a) of the Labour Act, the respondents promised repeal. That has
not happened. In relation to section
8(3),
the respondents expressly admit the error but urge the applicant to
resort to some tenet of construction to unravel what they meant to
say.
40.
Yet in his quest for justice, the applicant has for more than three
years been shunted from pillar to post by the administrative and
adjudication structures under their purview. These structures have
differed in their interpretation of the impeached provisions.
41.
What is more, as the respondents are mulling getting rid of section
93(5a) of the Labour Act, the Supreme Court, in an unrelated case the
judgment of which was delivered at about the same time the applicant
was filing this application with this court, has impugned the
provision and urged the Legislature to have a look at it. This was in
Drum
City (Pvt) Ltd v Garudzo
18-SC-057. The superior court noted that section 93(5a) and (5b) of
the Labour Act do not empower the Labour Court to confirm a draft
ruling of a Labour Officer made against an employee. The employee is
excluded from the confirmation proceedings. Yet he or she has a
direct and substantial interest in those proceedings. He or she has a
right to be heard.
42.
The superior court further said that a procedure that says a Labour
Court can sit for the confirmation or non-confirmation of a ruling by
a Labour Officer in the absence of an employee, who is an interested
party, is an irregularity and a travesty of justice.
43.
The court noted a myriad of problems posed by such a procedure, not
least:
(i)
The fact that even where the ruling by the Labour Officer is in
favour of the employee but is not confirmed by the Labour Court, the
employee who is affected by the non-confirmation cannot appeal.
Conversely, where the Labour Court confirms the ruling, the employer
may wish to appeal to the Supreme Court but the employee is
necessarily absent. Yet the outcome at the Supreme Court may be
adverse to the employee.
(ii)
The fact that even where the Labour Court confirms the ruling against
the employee and he or she wants to enforce it by execution, the writ
cannot be in his or her name because that name appears nowhere in the
final orders.
44.
As a way around the absurdities created by section 93(5a) of the
Labour Act, the Supreme Court suggested that the employee should
always be joined as a party to the confirmation proceedings before
the Labour Court. However, the superior court also urged the
Legislature to seriously reconsider the provision, exactly the same
thing the respondents herein have promised they are doing.
45.
Therefore, it seems obvious that section 93(5a) of the Labour Act is
impeachable. The respondents concede it. The Supreme Court virtually
confirms it. The question of the declaration of constitutional
invalidity of section 93(5a) of the Labour Act and section 8(3) of
the national employment code of conduct was not before the Supreme
Court. It is squarely before me now.
I
hold that section
93(5a)
is ultra
vires
section 56(1) and (3) of the Constitution that guarantee the equality
of all persons before the law, and the right not to be treated in an
unfairly discriminatory manner on the grounds of, inter
alia,
economic or social status.
It
also violates section
68 of the Constitution
that guarantees the right to administrative justice that is inter
alia,
lawful, efficient, reasonable, impartial and both substantially and
procedurally fair.
46.
The applicant says he seeks the declaratur
in terms of section 14 of the High Court, Chapter 7:06. But in terms
of this provision a declaratur
it is not sought by anyone and anyhow. Otherwise any public busybody
or watchdog whose hobby it is to surf the legislative landscape for
any statutory provisions misaligned with the Constitution
would clog the judiciary with endless suits for declarations of
constitutional invalidity. A mover for a declaratory order under
section 14 of the High Court Act must demonstrate more than mere
academic interest. The court does not decide abstract or hypothetical
questions: see Adbro
Investments Co Ltd v Minister of the Interior & Ors
1961
(3) SA 283 (T)
at p285D and Johnsen
v Agricultural Finance Corp
1995
(1) ZLR 65 (S).
He or she must show the existence of some tangible and justifiable
advantage to himself.
47.
In terms of section 14 of the High Court Act, a person who qualifies
to move for a declaratory order is one who has an interest in having
his or her existing,
future or contingent right or obligation
determined even if he or she cannot claim any relief consequential
upon such determination (emphasis
by myself).
In the draft order, the applicant does not seek the determination of
existing or future or contingent rights. He does not seek
determination of any rights at all. His woes with his employer are
all in the past now. I do not underrate them. It is only because he
has been importunate that the matter is now before this court. But
under section 14 of the High Court Act one does not seek a declaratur
for the determination of rights existing in the past.
48.
I am mindful that section 14 of the High Court Act does not require
that one who seeks a declaratory order should claim any relief
consequent upon the determination by the court. But at least he or
she must have an existing or future or contingent right that the
court should, or will determine.
49.
It seems the undisclosed lawyers handling the applicant behind the
scenes eventually wisened up to this pitfall. They filed heads of
argument even though as a “self-actor” the Rules do not require
the applicant to file any. In the very last paragraph it is submitted
that in addition to the relief sought in terms of the draft order,
the applicant should be granted a further remedy as follows:
(i)
That in the case of the impugned section 8(3) of the national
employment code of conduct, the applicant should be granted the right
to file an appeal against the decision of the disciplinary authority
to the internal appeals authority; or
(ii)
That in the case of section
93(5a),
the applicant should have the right to appeal against the ruling by
the Labour Officer to the Labour Court.
50.
I consider that the applicant's request in the heads of argument
brings him within the purview of section 14 of the High Court Act.
His claim in the draft order ceases to be merely academic. But even
if I should be wrong on this, I consider that section 85 of the
Constitution has widened the scope under which a declaratur may be
sought if it is in relation to the enforcement of fundamental human
rights and freedoms under Chapter 4 Part 4 of the Constitution.
In this case the rights the applicant alleges have been infringed in
relation to himself fall under this part of the Constitution.
They are the right to equal protection before the law and the right
not to be discriminated against (section
56);
the right to administrative justice (section
68)
and the right of access to the courts or some other tribunals
(section
69).
Section
85 of the Constitution reads:
“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.” (my emphasis).
51.
Thus, a right existing in the past which an applicant can show was
infringed in relation to themselves can support a claim for a
declaratur.
52.
However, my conclusion above is only in relation to section 93(5a) of
the Labour Act. I am not satisfied that it was really the typing
error in section 8(3) of the national employment code of conduct that
led the applicant to adopt the course that he did. Despite that
error, it is evident, even as presently worded, that the reference of
a matter to a Labour Officer that section
8(3)
envisages, is not from a decision of a disciplinary authority at the
first instance. It is from a decision or conduct of an appeals
authority on appeal. It was wrong for the applicant to invoke section
8(6)
and assume it applied to his case.
In
the final analysis, the applicant having sought no order as to costs,
the following order is issued:
1.
It is hereby declared that section 93(5a) of the Labour Act [Chapter
28:01] is in conflict with section
56(1)
and (3);
section
68(1)
and section
69(3) of the Constitution of Zimbabwe
and is therefore invalid.
2.
The declaration of constitutional invalidity in paragraph i/ above
may be referred for final determination by the Constitutional
Court of Zimbabwe in terms of section
175 of the Constitution
and the Rules of that Court.
3.
Subject to paragraph ii/ above, the applicant is hereby granted the
right to appeal to the Labour Court, as soon as practicable, the
decision of the Labour Officer/Designated Agent, E Muzvidziwa,
Esquire, handed down on 9 December 2016.
4.
There shall be no order as to costs.
Civil
Division of the Attorney General's Office, legal practitioners for
the respondents
