RETROSPECTIVITY
AND FUNDAMENTAL HUMAN RIGHTS
Retrospectivity
is a ground for holding civil legislation invalid only if it
contravenes one of the provisions of the Constitution which enshrine
fundamental human rights and freedoms.
One
of the grounds on which the alternative case was advanced by the
applicants for the alleged unconstitutionality of the transitional
provision
was
that, in retrospectively imposing the new ...
RETROSPECTIVITY
AND FUNDAMENTAL HUMAN RIGHTS
Retrospectivity
is a ground for holding civil legislation invalid only if it
contravenes one of the provisions of the Constitution which enshrine
fundamental human rights and freedoms.
One
of the grounds on which the alternative case was advanced by the
applicants for the alleged unconstitutionality of the transitional
provision
was
that, in retrospectively imposing the new financial obligation on
employers who terminated employees' contracts on notice, the
Legislature impaired the employer's right to terminate the contract
of employment on notice without treating the employee in a similar
manner.
The
contention was that the law of contract provided equal protection to
the employer and employee engaged in a contract of employment by
giving them the freedom to terminate the relationship upon giving
each other the requisite notice. The allegation was that, in
violation of section 56(1) of the Constitution, the retrospective
application of section 12 of the Labour Act, by the transitional
provision,
denies
employers the protection provided to both parties by the law of
contract of the right to terminate the employment relationship on
notice.
Section
44(1) of the Constitution imposes on the Legislature an obligation to
respect, protect, promote and fulfil the fundamental human rights and
freedoms enshrined in Chapter
IV
when exercising the legislative powers in terms of section 117(2)(b)
of the Constitution.
RIGHT
TO EQUAL PROTECTION OF THE LAW
The
gist of the argument presented by counsel for the applicants was that
the financial obligation imposed on the applicants violates their
right to equal protection of the law because it is imposed
retrospectively under the transitional provision.
As
with any law, retrospective legislation enjoys a presumption of
constitutionality. The challenger bears the burden of proving that
the retrospective legislation violates the protection of the
fundamental human right or freedom guaranteed to him or her or it by
the Constitution. If infringement is established and the right or
freedom is derogable, the State has the burden of justifying the
limitation of the fundamental human right or freedom in terms of
section 86(2) of the Constitution.
Section
56(1) of the Constitution provides as follows:
“56
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.”
It
is common cause that the purpose behind the retrospective application
of the legislation was the protection of employees whose contracts
were terminated on notice from uncompensated loss of employment at
the initiative of the employers. The content of the purpose was the
provision of the mechanism and formula for the payment of
compensation to employees whose contracts were terminated on notice
for loss of employment and the imposition on employers, who
terminated the employees' contracts on notice, of the obligation to
pay the compensation calculated by reference to length of service.
The purpose was to ensure that the employment that was lost by
termination on notice, at the initiative of the employer, on or after
17 July 2015, was compensated.
There
is no doubt that the welfare of employees, upon termination of
employment on notice, is a matter of public interest deserving of
legislative protection. The law cannot be interpreted against the
employees unless the objective is shown to be unconstitutional or the
means chosen for its achievement are disproportionate to it. At no
time did counsel for the applicants suggest, in the argument advanced
to the Court, that the purpose of the retrospective application of
the legislation to the applicants was not legitimate.
The
raison
d'etre
of Constitutional Law is the human being. Section 56(1) of the
Constitution enshrines three separate but related fundamental human
rights. The rights are: the right to equality before the law; the
right to equal protection of the law; and the right to benefit of the
law.
The
contents of the rights must be available and claimable under any
measure which meets the standard of legality. Article 1 of the
Universal
Declaration of Rights
declares that:
“All
human beings are born free and equal in dignity and rights.”
Equality
is a fundamental human right and a principle of social justice. Every
person is, by virtue of being human, entitled to equal access to the
remedies, protection and benefits provided under the law. As all
human beings are equal, they are entitled to equal treatment as such
under the law. This idea of equality of human beings and equal
treatment as such underlies all modern, democratic and humanitarian
legal systems.
Whilst
section 56(1) of the Constitution requires respect and protection of
human equality as a foundational value, it does not mean that
identically the same rules of law should be applicable to all persons
in every instance, regardless of differences of factual circumstances
and conditions. Section 56(1) of the Constitution does not protect a
right to identical treatment. The right to equality is violated when
the State makes an unjustified distinction between people or
situations. Section 56(1) of the Constitution is not about formal
equality, as formal equality is already part of the Constitution. The
fundamental principle of the rule of law to the effect that all State
power is bound by law and that everyone is bound by law means that
there is equal application of law since the very nature of law
demands universal application. Section 56(1) of the Constitution
speaks to substantive equality.
Human
beings may be equal yet act differently in different situations or
circumstances. Need may arise for the enactment of a law, the
specific object of which is the prohibition of the recurrence of
harmful acts to protect public interest. A Legislature empowered to
make laws on a wide range of subjects must of necessity have the
power of making special laws to attain particular objectives. Such a
law would have a specific objective and be aimed only at a section of
people who would commit the prohibited conduct. For the reason of the
specific objective and the nature of the prohibited acts, such a law
would be based upon a creation of a class of people to which it
applies. By exclusion, it would create a different class of people to
which it does not apply.
The
Legislature has undoubtedly a wide field of choice in determining and
classifying the subject matter of its laws. It must be presumed that
a Legislature understands and correctly appreciates the needs of its
own people. The power to classify or particularise objects of
legislation must, in the nature of things, be left to the law-making
authorities.
REASONABLE
DIFFERENTIATION AND EQUAL PROTECTION OF THE LAW
The
right to equal protection of the law, enshrined in section 56(1) of
the Constitution, does not prohibit the enactment of law based on
reasonable differentiation of groups of people for different
treatment in respect of the purpose of the legislation. Section 56(1)
of the Constitution leaves it to the courts to decide when a
classification of persons is prohibited under its provisions. The
doctrine of classification evolved by the courts is not a paraphrase
of section 56(1) of the Constitution. It is merely a judicial formula
for determining whether the legislative or executive action in
question is arbitrary and therefore a violation of the
right
of the claimant to equal protection of the law. See
E
P Royappa v State of Tamil Nadu
1974
SCR 248.
If
unequal treatment of various groups of people addressed by the
retrospective legislation is to be upheld under section 56(1) of the
Constitution, there must be differences of such a type and weight
that they can justify the difference of treatment. Unequal treatment
and justification must be adequately related to each other.
The
purpose of the right to equal protection of the law enshrined in
section 56(1) of the Constitution is to ensure that those in similar
circumstances and conditions who are the subjects of the legislation
are treated equally, both in the privileges and in the liabilities
imposed. There should be, as between them, equal protection of the
law. The right does not require equal treatment of people who are in
different circumstances. The difference must exist, characterised by
objective factors relevant to the achievement of the legislative
purpose. The different treatment must correspond to the nature of the
difference.
No
legislation, in any practical sense, is possible without some kind of
classification. The very nature and purpose of every legislation
depend on the choice of some subject to the exclusion of the rest and
some arena for its operation. This selective quality is inherent and
implicit in every legislation. The constitutional guarantee of the
right to equal protection of the law cannot be understood and
construed in such a manner as to make legislation impossible for all
practical purposes. To what class or classes of persons or things a
statute should apply is, as a general rule, a legislative question.
The Legislature is the best judge of the needs of the particular
classes.
Given
that the criterion for the imposition of the financial obligation was
termination of an employee' contract on notice and that the object
of the obligation, retrospectively imposed, was payment of
compensation for loss of employment, there had to be a
differentiation of treatment between employers and employees. The
effect of the retrospective application of the statute had to be the
classification of people in employment relationships into employers
who terminated employees' contracts on notice on or after 17 July
2015 and the employees whose contracts were terminated on notice.
As
long as the retrospective application of the change is rationally
related to a legitimate legislative purpose, the constraints of equal
protection of the law have been honoured - even when the legislation
imposes a new obligation based on past acts.
It
readily becomes apparent that retrospectivity of the effect of an
obligation alone does not make it a source of infringement of the
fundamental right. The right to equal protection of the law,
enshrined in section 56(1) of the Constitution, does not
prohibit
legislative differentiation of people resulting from retrospective
imposition of a new obligation on members of one class for the
benefit of members of the other class, provided the classification is
in respect of a legitimate purpose and is based on reasonable and
objective criteria. In other words, such a retrospective
differentiation of treatment of persons who are the subjects of the
legislation can be undertaken by the Legislature without infringing
the right to equal protection of the law enshrined in section 56(1)
of the Constitution.
Differentiation
of treatment legitimately aimed at ameliorating the economic
conditions of a disadvantaged group, like employees whose contracts
are terminated on notice without compensation for loss of employment,
cannot be held to be in contravention of section 56(1) of the
Constitution simply because it is retrospectively imposed on the
employers who terminated the employees' contracts on notice.
Article
26 of the International
Covenant on Civil and Political Rights
(“ICCPR”)
recognises and protects the right to equal protection of the law by
providing as follows:
“All
persons are equal before the law and are entitled, without any
discrimination, to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.”
Commenting
on non-discrimination, as it relates to the right to equal protection
of the law, the United Nations Human Rights Committee on the
International
Covenant on Civil and Political Rights
(“ICCPR”),
in General Comment 18, adopted on 10 November 1989, stated as
follows:
“13.
Finally, the Committee observes that not every differentiation of
treatment will constitute discrimination, if the criteria for such
differentiation are reasonable and objective and if the aim is to
achieve a purpose which is legitimate under the Covenant.”
Judge
Tanaka
of the International Court of Justice, giving a dissenting opinion in
the South-West
Africa Cases (Ethiopia v South Africa; Liberia v South Africa);
Second Phase,
International Court of Justice (ICJ), 18 July 1966, said:
“To
treat different matters equally in a mechanical way would be as
unjust as to treat equal matters differently. We know that law serves
the concrete requirements of individual human beings and societies.
If individuals differ one from another, and societies also, their
needs will be different, and, accordingly, the content of law may not
be identical. Hence is derived the relativity of law to individual
circumstances….,.
We
can say, accordingly, that the principle of equality before the law
does not mean the absolute equality, namely, equal treatment of men
without regard to individual, concrete circumstances, but it means
the relative equality, namely, the principle to treat equally what
are equal and unequally what are unequal….,.
The
question is, in what case equal treatment or different treatment
should exist.
If
we attach importance to the fact that no man is strictly equal to
another and he may have some particularities, the principle of equal
treatment could be easily evaded by referring to any factual and
legal differences and the existence of this principle would be
virtually denied. A different treatment comes into question only when
and to the extent that it corresponds to the nature of the
difference. To treat unequal matters differently according to their
inequality is not only permitted but required. The issue is whether
the difference exists. Accordingly, not every different treatment can
be justified by the existence of differences, but only such as
corresponds to the differences themselves, namely, that which is
called for by the idea of justice – 'the principle to treat equal
equally and unequal according to its inequality, constitutes an
essential content of the idea of justice' (Goetz
Hueck, Der Grundsatz der Gleichmassigen Behandlung in Privatrecht,
1958, p. 106) [translation]….,.
Briefly,
a different treatment is permitted when it can be justified by the
criterion of justice. One may replace justice by the concept of
reasonableness generally referred to by the Anglo-American school of
law. Justice or reasonableness, as a criterion for the different
treatment, logically excludes arbitrariness. The arbitrariness which
is prohibited means the purely objective fact and not the subjective
condition of those concerned. Accordingly, the arbitrariness can be
asserted without regard to motive or purpose….,.
All
human beings are equal before the law and have equal opportunities
without regard to religion, race, language, sex, social groups, etc.
As persons, they have the dignity to be treated as such. This is the
principle of equality which constitutes one of the fundamental human
rights and freedoms which are universal to all mankind. On the other
hand, human beings, being endowed with individuality, living in
different surroundings and circumstances are not all alike, and they
need, in some aspects, politically, legally and socially different
treatment. Hence, the above-mentioned examples of different treatment
are derived.
Equal
treatment is a principle but its mechanical application, ignoring all
concrete factors, engenders injustice.
Accordingly,
it requires different treatment taken into consideration of concrete
circumstances of individual cases. The different treatment is
permissible and required by the considerations of justice; it does
not mean a disregard of justice….,.
Different
treatment must not be given arbitrarily; it requires reasonableness,
or must be in conformity with justice…,.”
McCRUDDEN
C and PRECHAL S, in an article entitled “The
Concepts of Equality and Non-Discrimination in Europe: A Practical
Approach”,
European Network of Legal Experts in the Field of Gender Equality,
November 2009, refer to the Aristotelian conception of equality
applied in Europe which has two dimensions: like cases should be
treated alike, and different cases should be treated differently. An
example of Cyprus is given where it is stated that the Supreme
Constitutional Court of that country accepts that the:
“…,.
Right to equality is subject to reasonable differentiations between
inherently different situations. On the other hand, arbitrary
unreasonable differentiations, not justified by the intrinsic nature
of things, will contravene the equality principle.”
The
authors go on to write that:
“In
France, the Constitutional Council has held that the principle of
equality does not preclude legislation from laying down different
rules for categories of persons in different situations or
legislation from laying down different rules where the difference of
treatment is justified by general interest and where the difference
of treatment is compatible with the purpose of the legislation. In
Poland, too, the Constitutional Court has interpreted the
constitutional principle of equality to mean that all subjects
characterized
by a certain feature or belonging to a certain category must be
treated equally, without any differentiation, neither in a
discriminatory manner, nor more favourably.”
The
acceptance of different treatment of people in different positions as
a means to achieve equality in India was made clear in the case of
V.M.
Syed Mohammad and Company v The State of Andhra
1954 AIR 314, [1954] SCR 1117…,. The right to equal protection of
the law in India is provided for under Article 14 of its
Constitution,
which provides that the State shall not deny to any person equality
before the law or the equal protection of the laws within the
territory of India.
In
V.M.
Syed Mohammad and Company v The State of Andhra
1954
AIR 314 [1954] SCR 1117
a
complaint was made to the effect that an impugned Act singled out for
taxation purchasers of certain specified commodities only but left
out purchasers of all other commodities. In interpreting the right to
equal protection of the law, the court stated as follows:
“It
is well settled that the guarantee of equal protection of laws does
not require that the same law should be made applicable to all
persons. Article 14, it has been said, does not forbid classification
for legislative purposes, provided that such classification is based
on some differentia having a reasonable relation to the object and
purpose of the law in question. As pointed out by the majority of the
Bench which decided Chiranjitlal
Chowdhury's
case
([1950] S.C.R. 869), there is a strong presumption in favour of the
validity of legislative classification and it is for those who
challenge it as unconstitutional to allege and prove beyond all doubt
that the legislation arbitrarily discriminates between different
persons similarly circumstanced. There is no material on the record
before us to suggest that the purchasers of other commodities are
similarly situated as the purchasers of hides and skins.”
In
the same jurisdiction, the court, in the case of Budhan
Choudhry v The State of Bihari
[1955]
1 SCR 1040, accepted that the creation of classes for purposes of
legislation is legal, which is the same as the treatment of different
people in different positions. The court said:
“It
is, therefore, not necessary to enter upon any lengthy discussion as
to the meaning, scope and effect of the article in question. It is
now well-established that while Article 14 forbids class legislation,
it does not forbid reasonable classification for the purposes of
legislation. In order, however, to pass the test of permissible
classification two conditions must be fulfilled, namely;
(i)
That the classification must be founded on an intelligible
differentia which distinguishes persons or things that are grouped
together from others left out of the group; and
(ii)
That that differentia must have a rational relation to the object
sought to be achieved by the statute in question.
The
classification may be founded on different bases; namely,
geographical, or according to objects or occupations or the like.
What is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration…,. It
is also well established that the Legislature is not bound to extend
a legislation to all cases which it might possibly reach. It may take
into consideration practical exigencies, it may recognise degrees of
harm, and confine the legislation where the need is greatest, and
that a law which hits evil where it is most felt will not be
overthrown because there are other instances to which it might have
been applied; that the Legislature may proceed cautiously step by
step;…,.”
In
America, the right to equal protection of the law is found in the
Fourteenth Amendment to the United States Constitution, under section
1. Among other things, the section provides that no State in America
shall deny to any person within its jurisdiction the equal protection
of the laws.
As
far back as 1897, the United States Supreme Court, in the case of
Gulf,
Colorado & Santa Fe Ry. Co. v Ellis
165
U.S. 150 (1897) held that equal protection of the laws means
subjection to equal laws applying alike to all in the same situation.
In 1910, the same court, in Southern
Railway Co. v Greene,
216 U.S. 400 (1910) made the point that while reasonable
classification is permitted, without doing violence to the equal
protection of the laws, such classification must be based upon some
real and substantial distinction, bearing a reasonable and just
relation to the things in respect to which such classification is
imposed. Classification cannot be arbitrarily made without any
substantial basis. Arbitrary selection cannot be justified by calling
it classification.
CURRIE
& De WAAL: “The
Bill of Rights Handbook”,
6ed, Juta…., explain that classification of people for purposes of
legislation does not violate the right to equal protection when it is
based on reasonable grounds. The learned authors state as follows:
“The
equality right does not prevent the State from making classifications
and from treating some people differently to others. This is because
the
principle of equality does not require everyone to be treated the
same, but simply that people in the same position, from a moral point
of view, should be treated the same. Laws may therefore classify
people and treat them differently to other people for a variety of
legitimate reasons.
Indeed, laws almost inevitably differentiate between persons. It
is impossible to regulate the affairs of the inhabitants in a country
without differentiation and without classifications that treat people
differently and that impact on people differently. Not every
differentiation can, therefore, amount to unequal treatment.
If it did, the courts could be called on to review almost the entire
legislative programme.”…,.
In
Prinsloo
v Van der Linde
1997 (3) SA 1012 (CC) the Constitutional Court of South Africa
explained that mere differentiation without a rational relationship
to the legislative purpose, and not based on objective criteria,
would constitute a violation of the right to equal protection of the
law. The court said…,:
“In
regard to mere differentiation, the constitutional State is expected
to act in a rational manner. It should not regulate in an arbitrary
manner or manifest 'naked preferences' that serve no legitimate
governmental purpose, for that would be inconsistent with the rule of
law and the fundamental premises of a constitutional State. The
purpose of this aspect of equality is, therefore, to ensure that the
State is bound to function in a rational manner…,.
Accordingly,
before it can be said that mere differentiation infringes section 8
[IC] (now section 9(1) of the South African Constitution) it must be
established that there is no rational relationship between the
differentiation in question and the government purpose which is
proffered to validate it. In the absence of such rational
relationship the differentiation would infringe section 8.”
From
the case law and commentaries from
other
jurisdictions, it can be concluded that for justice to be done,
classes may be created retrospectively by a law
which
appears to favour one class over another. The classification must
have a rational relation to the purpose sought to be achieved by the
legislation. The classification must be based on reasonable grounds
that are related to the matters marking the differences in the
circumstances of the people classified. In other words, when a law
retrospectively creates a classification, its purpose must clearly
and logically be beneficial. Good reason must exist for the
instrumentality of the retrospective classification. Once
classification is done, for the legitimate purpose of legislation,
and is based on reasonable and objective criteria, the law cannot be
said to violate one's right to equal protection of the law.
The
transitional provision created two classes.
(i)
The first class was that of employees whose contracts of employment
were terminated on notice after the Zuva
Petroleum
judgment (Nyamande
and Anor v Zuva Petroleum (Pvt) Ltd
SC43-15, 2015 (2) ZLR 186 (SC)). They were to benefit from the
payment of the minimum retrenchment packages under section 12 of the
Labour Act [Chapter 28:01].
(ii)
The second class was that of the employers upon whom the obligation
to pay the retrenchment packages to the employees whose contracts
were terminated on notice was imposed.
The
Legislature was free to classify employers who terminated employees'
contracts on notice. It was free to choose to impose the financial
obligation on them. The Legislature was also free to classify
employees whose contracts were terminated on notice and grant them
the benefit of compensation for loss of employment. The Legislature
reacted to the direct adverse impact on the economic lives of
employees whose contracts were terminated on notice at the initiative
of employers who exercised their right to terminate the contracts of
employment on notice.
The
applicants, who belong to a class of persons obliged to pay minimum
retrenchment packages, cannot allege unequal protection of the law
against employees who are in a different class from theirs. The
employees whose contracts were terminated on notice are not
comparable to employers who terminated their contracts on notice for
the purpose of the legislation retrospectively applied to the
parties. The employer cannot, in the circumstances, claim equality
with the employee whose employment he or she or it
terminated
on notice.
Although
the applicants suffered a disadvantage, by having the financial
obligation imposed on them retrospectively, they did not share
relevant characteristics with the employees whose contracts they
terminated on notice for the purposes of the legislation. The
applicants were not similarly situated as the employees whose
contracts they terminated on notice for the purposes of the
retrospective imposition of the financial obligation to pay the
employees whose contracts were terminated the minimum retrenchment
package. Equality means sameness in treatment of people who are
similarly situated or placed. Only when people in a similar
circumstance are treated differently can it be alleged that the right
to equal protection of the law has been violated.
That
was not the position in the present case.
