Section 16B of the Constitution of Zimbabwe came into operation on the 14th of September 2005. Subsections (2) and (3) of section 16B of the Constitution of Zimbabwe..., provide as follows:

“(2) Notwithstanding anything contained in this Chapter –

(a) All agricultural land –

(i) that was identified on or before the 8th of July 2005 in the Gazette, or Gazette Extraordinary, under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or

(ii) that is identified after the 8th of July 2005, but before the appointed day...,.; or

(iii) that is identified in terms of this section by the acquiring authority, after the appointed day...,.; is acquired by and vested in the State with full title therein with effect from the appointed day, or, in the case of land referred to in subparagraph (iii) with effect from the date it is identified in the manner specified in that paragraph; and

(b) No compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.

(3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, and the provisions of section 18(1) and (9) shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(b), that is to say, a person having any right or interest in the land –

(a) shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;

(b) may, in accordance with the provisions of any law referred to in section 16(1), regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.”

Subsections (5) and (6) of section 16B of the Constitution of Zimbabwe..., provide as follows:

“(5) Any inconsistency between anything contained in –

(a) a notice itemised in Schedule 7; or

(b) a notice relating to land referred to in subsection (2)(a)(ii) or (iii); and the title to which it refers, or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.

(6) An Act of Parliament may make it a criminal offence for any person, without lawful authority, to possess or occupy land referred to in this section or other State land.”...,.

Section 16(9b) of the Constitution of Zimbabwe..., was introduced by Act 14 of 1996.

Section 16(9b) of the Constitution of Zimbabwe provides that –

“Nothing in this section shall affect or derogate from –

(a) Any obligation assumed by the State; or

(b) Any right or interest conferred upon any person; in relation to the protection of property and the payment of compensation in respect of the acquisition of property in terms of any convention, treaty, or agreement acceded to, concluded, or executed, by, or under, the authority of the President with one or more foreign states, or governments, or international organizations.”...,.

The meaning and effect of section 16(9b) of the Constitution of Zimbabwe are clear and unambiguous – nothing contained in section 16 of the Constitution of Zimbabwe shall affect or derogate from the protection of property rights and the compensation payable therefor as guaranteed in terms of any treaty concluded by the Executive.

There is no mention of anything contained in any other provision of the Constitution of Zimbabwe.

In contrast, the expropriation of agricultural land without compensation for the land itself is stipulated by section 16B(2) of the Constitution of Zimbabwe so as to apply, notwithstanding anything contained in Chapter III, viz. the Declaration of Rights, which includes section 16(9b) of the Constitution of Zimbabwe.

Applying the maxim lex posterior priori derogant, or, as it is otherwise stated, leges posteriores priores contrarias abrogant, the later section 16B of the Constitution of Zimbabwe must be construed to take precedence and prevail over the earlier section 16(9b) of the Constitution of Zimbabwe, to the extent that the latter is inconsistent with the former.

On the other hand, section 16B of the Constitution of Zimbabwe is couched in general and all-embracing terms, whereas section 16(9b) of the Constitution of Zimbabwe is specific in its scope of application to property rights protected by international treaties that are binding upon Zimbabwe. Having regard to the maxim generalia specialibus non derogant, it is perfectly permissible to construe the later general provisions of section 16B of the Constitution of Zimbabwe as not derogating from the special provisions of section 16(9b) of the Constitution of Zimbabwe.

There are several other general rules of statutory interpretation that come into play in the present context.

The first and foremost is the presumption against the retrospective operation of statutes impinging on vested rights. One aspect of this rule is that where one enactment repeals another, the repeal does not “affect any right, privilege, obligation or liability, acquired, accrued or incurred under the enactment so repealed.” See section 17(1)(c) of the Interpretation Act [Chapter 1:01]. Taking the presumption further, a later statute will only be construed as affecting, or taking away, a right accrued under a previous statute if the later enactment expressly intends to take away the prior existing right. See Browne v Incorporated Law Society of Natal 1968 (3) SA 535(N).

The applicants still persisted that their rights over the farms were not retrospectively affected by the provisions of section 16B(2)(a)(i) of the Constitution of Zimbabwe and cited the case of Nkomo and Another vs The A.G and Others 1993 (2) ZLR 422 (S)…,. At 429A-C GUBBAY CJ had this to say –

“It is a cardinal rule in our law, dating probably from Codex 1:14:7, that there is a strong presumption against a retrospective construction. See Agere v Nyambuya 1985 (2) ZLR 336 (S) at 338G-339G. Even where a statutory provision is expressly stated to be retrospective in its operation, it is not to be treated as in any way affecting acts and transactions which have already been completed, or which stand to be completed shortly, or in respect of which action is pending or has been instituted but not yet decided, unless such a construction appears clearly from the language used or arises by necessary implication..,. Care must always be taken to ensure that the retrospectivity is confined to the exact extent which the section of the Act provides..,.” ….,.

The learned Chief Justice continued, at page 433C, as follows -

“This conclusion is underscored when account is taken of the well-established rule that a statute should be interpreted, where possible, so as not to impair or extinguish substantive rights actually vested at the time of its promulgation. Courts will only find that such an inequitable result was intended when compelled to do so by language so clear as to admit of no other inference…,. The supposition is that the legislature intends to deal with future events and circumstances and not with those pertaining to the past.” …,.

When discussing the fundamental rule of construction in our law in the case of Agere v Nyambuya 1985 (2) ZLR 336 (SC) GUBBAY JA…., stated that retrospective operation may only be given to an enactment so as to remove or in any way impair existing rights where the enactment is expressly retrospective. At page 339A-C he quoted with approval the remarks by STRATFORD JA in Principal Immigration Officer v Purshotam 1928 AD…,.

“STRATFORD JA succinctly set out this general rule as follows:

The rule of interpretation is well established; it is that where in express terms or by necessary implication (which is much the same thing) the enactment is to have a retrospective effect, that effect must be given to it whatever the consequences maybe. If, on the other hand, the clear intention to have retrospective effect cannot be extracted from the words used in their context, then the enactment must not be taken to effect pre-existing rights...,.

These words echo what INNES CJ said many years earlier in Curtis' case, supra at 311 namely:

'The general rule is that, in the absence of express provision to the contrary, statutes should be considered as affecting future matters only; and more especially that they should, if possible, be interpreted as not to take away rights actually vested at the time of promulgation. The legislature is virtually omnipotent, but the courts will not find that it intended so unequitable a result as the destruction of existing rights unless forced to do so by language so clear as to admit no other conclusion.'”….,.

The applicants also cited a recent case of Route Toute B V and Others vs The Minister of National Security Responsible for Land Reform and Resettlement and Others HH128-09 in which it was stated that a later statute will only be construed as affecting or taking away rights accrued in a previous statute if the later enactment expressly intends to take away the prior existing rights. It was indeed held to the effect, in Vice Chancellor, University of Zimbabwe & Another v Musasah & Another 1993 (1) ZLR 162 (S), that the removal of an existing right has to be done expressly and not indirectly….,. 

The Constitution of Zimbabwe recites to the same effect in section 52 thus:

“(52) Alteration of the Constitution

(1) Parliament may amend, add to or repeal any of the provisions of this Constitution:

Provided that, except as provided in subsection (6), no law shall be deemed to amend, add to or repeal any provision of this Constitution unless it does so in express terms.”  ….,.

What is conspicuous in all the case authorities and the Constitution of Zimbabwe is a common thread running through all of them. Where the legislature wishes an enactment to have a retrospective effect it must expressly say so.

In casu, section 16B(2)(a)(i) of the Constitution of Zimbabwe…, expressly states that notwithstanding anything contained in this Chapter all agricultural land that was identified on or before the 8th July, 2005 in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10] and which is itemized in Schedule 7, being agricultural land required for resettlement purposes is acquired by and vested in the State with full title therein from the appointed day. Chapter III of the Constitution is The Declaration of Rights and section 16 protects property from any deprivation. But the provisions of section 16B of the Constitution of Zimbabwe are expressly instructing all citizens of Zimbabwe that despite the protection enshrined in the Declaration of Rights all agricultural land that was identified prior to 8 July, 2005 would be compulsorily acquired for resettlement purposes. Schedule 7 contains 107 items of pieces of land that constitute the land referred to in section 16B(2)(a)(i) of the Constitution of Zimbabwe. As has already been mentioned elsewhere in this judgment the two farms that are under consideration herein are reflected as item 44.

The present review judgment deals with the issue of whether section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] has retrospective effect.

The section first appeared in the present format as section 12A of the Stock Theft Act [Chapter 9:18] before the Stock Act was repealed by the Criminal Law (Codification and Reform) Act [Chapter 9:23] on 23 June 2006. The repealed statute reintroduced the mandatory minimum penalty of not less than 9 years but not more than 25 years imprisonment for the theft of bovine or equine animals.

There have been conflicting decisions in the High Court on whether the section applies retrospectively to offences that were committed before the mandatory sentence was promulgated on 27 August 2004. My research has revealed that only one case held that the section has retrospective or retroactive effect. This was the decision of NDOU J with the concurrence of BERE J in S v Mzanywa & Ors HB09-06. I have been able to locate four cases from the Harare High Court that held that the section did not have retroactive effect. These are S v Forsten HH177-04 a judgment of BHUNU J concurred to by MAKARAU J…,; S v Manaka HH77-05 by BHUNU J with the concurrence of UCHENA J; S v Ndlovu & Anor HH70-06 a judgment of KAMOCHA J in which GARWE JP…, not only concurred but wrote a separate opinion underscoring the point that the section did not carry retroactive effect.

In the present matter what happened is as follows.

On an unknown date, but in August 2004, the second accused, who was employed as a charge hand at the complainant's homestead, connived with the first accused, the brother of the complainant, and stole and sold the complainant's heifer. The two falsely indicated to the complainant that the heifer had gone missing. It was, however, recovered on 18 February 2011, from the person to whom it had been sold, leading to the apprehension and prosecution of the two accused persons.

The two accused persons were correctly convicted on their respective pleas of guilty to stock theft in violation of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The trial magistrate recorded mitigation before properly explaining the meaning, nature and scope of special circumstances peculiar to the case. He did not find any special circumstances. On 30 March 2011 he sentenced each accused person to 10 years imprisonment and suspended 1 year imprisonment for 5 years on appropriate conditions of future good conduct.

The difficulty that confronted me on review was the failure to disclose the particular date in August 2004 when the theft occurred. The theft could have taken place either before or after 27 August 2004 when the mandatory minimum sentence took root. In the absence of a clear indication of whether it took place before or after the crucial date, it seemed to me appropriate to give the benefit of the doubt to the accused persons and find that it took place before the defining date. It was only after making such a finding that the question raised at the beginning of this review judgment cried out for an answer.

In S v Mzanywa & Ors HB09-06…, NDOU J stated…, that:

“The issue here is whether the provisions of s12 apply retrospectively in respect of offences committed before it came into operation where the accused is only convicted after its promulgation? It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication – Carson v Carson [1964] 1 WLR 511 at 516, DPP v Lamb [1941] 2 k.B 89, Maxwell on Interpretation of Statutes (12^th Ed) by P. St. J Langan at 226-7;  It is conceded that the operation of this presumption is difficult because the distinction between statutes that operate retrospectively for the purpose of the  presumption and those which do not is hard to draw, Cross Statutory Interpretation (2^nd Ed) by Dr J Bell and Sir G Engle at 184-6 and Re Athlumney [1898] 2 QB 547 at 551. This presumption against retrospectivity is rebutted by a statutory provision or Act either expressly or by necessary implication – S v Fazzie & Ors 1964 (4) SA 673 (A), Lek v Estate Agents Board 1978 (3) SA 160(c). By using the phrase “who is convicted” as opposed “who has committed” the legislature clearly intended that s12 should have retroactive operation. The date of conviction is the decisive date from the wording of s12. The date of the commission of the offence is rendered irrelevant.”

He held that the use of the phrase “who is convicted” as opposed to “who has committed” was decisive.

On the other hand, KAMOCHA J stated in the S v Ndlovu & Anor HH70-06 case….,:

“The second error relates to applying the law retrospectively. The theft of the four donkeys was committed on 25 October 2003, which was 10 months before the Stock Theft Amendment Act 6 of 2004 was enacted. The magistrate sentenced the accused for an offence committed before the law was enacted using the provisions of the new law. That, in my view, is not proper as the general rule at common law is that statutes are not to operate retrospectively. See Crais on Statute Law 7^th edition by S.G.G. Edgar at p391. Francis Benion in Statutory Interpretation Butterworths 1984 at p313 states the principle as follows:

'It is a principle of legal policy that, except in relation to procedural matters, changes in the law should not take effect retrospectively. The court, when considering, in relation to the fact of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.'

This general rule can, however, be departed from where it is expressly enacted that an enactment shall be retrospective. Further, Crais on Statute Law supra at p392 states that:-

'If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give such an operation.'

The above approach has been adopted by our courts several times for instance in Agere v Nyambuya 1985 (2) ZLR 336 (SC) at 338H-339A GUBBAY JA (as he then was) had this to say:-

'It is a fundamental rule of construction in our law, dating probably from Codex 1:14:7, that there is a strong presumption that retrospective operation is not to be given to an enactment so as to remove or in any way impair existing rights of obligations unless such a construction appears clearly from the language used or arises by necessary implication. For instance, where it is expressly retrospective, or deals with past events, or concerns a matter of procedure, practice or evidence. The supposition is that the legislature intends to deal only with future events and circumstances.'

See also Bater & Anor v Muchengeti 1995 (1) ZLR 80 (S) at 84G-H and Nkomo & Anor v A-G & Ors 1993 ZLR 422 (S) at 428H-429B.

In casu, there is nothing to suggest that the provisions of s12 inserted by the Stock Theft Amendment Act No.6 of 2004 were to be applied in retrospect. Neither can it be said that there is a necessary implication from the language used that the legislature intended the said section to operate retrospectively. There was, therefore, no basis for the trial court to have had recourse to s12 of the Stock Theft Act [Cap 9:18] as amended when sentencing the accused. He should have exercised the jurisdiction conferred on him by the Stock Theft Act prior to the amendment.”

The views expressed by KAMOCHA J find further support in the case of S v Mutandwa and Another 1973 (3) SA 391 (R). In that case, two accused persons were convicted of stock theft on 29 September 1976 and sentenced to the mandatory minimum sentence promulgated in the Stock Theft Amendment Act 10 of 1976. At 391E DAVIES J, with whom WHITETAKER J agreed with, set aside the mandatory minimum sentences because the trial magistrate overlooked the fact that the Stock Theft Amendment Act was not operative at the time of the commission of the offence.

The 1976 Amendment Act was couched in identical terms as the present section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It read:

“Any person who is convicted of the theft or attempted theft of any equine or bovine animal or receiving knowing it to have been stolen or inciting or conspiring with any other person to commit any of the foregoing offences shall, if there are no special circumstances in the particular case as….,.”

In my view, the distinction sought to be drawn by NDOU J in the wording of the present section does not confer retroactive effect to the section. If the legislature intended the section to have retroactive effect it should have expressly said so. It did not. After all, it was radically increasing the punishment for the theft of a bovine or equine animal. In addition, the legislature repeated the same wording which was held had no retrospective effect in 1976. The legislature is assumed to have been aware of that decision when it promulgated the present section in identical terms.

Accordingly, I would, with respect, differ with the conclusion reached in S v Mzanywa & Ors HB09-06. I find myself in agreement with the decisions which hold that it has no retroactive effect.

Accordingly, the two accused persons should have been sentenced to sentences that were appropriate before the promulgation of section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in its present format.

The mandatory minimum sentence imposed by the trial magistrate is set aside and is substituted by the following:

DOES SECTION 69(3) OF THE CONSTITUTION RENDER UNCONSTITUTIONAL PARATE EXECUTIE?

The issue of whether section 69(3) of the Constitution renders parate executie unconstitutional, of necessity raises the issue of whether or not section 69(3) of the Constitution has retroactive effect and applies to the clause of parate executie that was entered into, executed, and adjudicated upon by the High Court before the Constitution came into operation. Put differently, does section 69(3) of the Constitution have retroactive effect?

I have no doubt in my mind that section 69(3) of the Constitution has no retroactive effect.

In common law countries, one of the fundamental rules of construction of statutes is the presumption against retrospectivity. The right of access to courts, or other lawful tribunals for the resolution of disputes is a substantive right and can only apply retrospectively where the legislation in question clearly provides for such a construction.

Counsel for the defendant argued that statutes must be presumed not to prohibit or to prevent what has been done in the past. In support of this submission she cited the case of Jockey Club of South Africa v Transvaal Racing Club 1959 (1) SA 441 (A) and the case of Phillips v Eyre [1870] LR 6 QB 1…, (as quoted from FRANCIS BENNION, Statutory Interpretation (1984) 444), wherein Willes J made the following remarks:

“…, the general principle that legislation, by which the conduct of mankind is to be regulated, ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.”

These authorities are in line with the maxim lex prospicit non respicit (law looks forward and not back).

The rationale for this presumption, under the common law, is that new legislation must not be used to limit the enjoyment of fruits of legal agreements entered into on the basis of an existing law. To allow statutes to be interpreted and applied retrospectively would be tantamount to second-guessing contracts entered into in good faith between two agreeing parties. Therefore, whenever there is a substantive statute which seeks to limit the rights that parties already have under a concluded contract, the presumption should be applied in order to safeguard the legitimate interests of contracting parties unless this is impossible, regard being had to the language used in the legislation. In this regard Gubbay CJ had this to say in the case of Nkomo and Anor v Attorney-General and Others 1993 (2) ZLR 422 (S)…,.:

“It is a cardinal rule in our law, dating probably from Codex 1:14:7, that there is a strong presumption against a retrospective construction. See Agere v Nyambuya 1985 (2) ZLR 336 (S) at 338G-339G. Even where a statutory provision is expressly stated to be retrospective in its operation, it is not to be treated as in any way affecting acts and transactions which have already been completed, or which stand to be completed shortly, or in respect of which action is pending or has been instituted but not yet decided, unless such a construction appears clearly from the language used or arises by necessary implication. See Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A) at 684E-F;…,.”

In England, the presumption against retrospective application of substantive law enjoys an almost hegemonic position in the corpus of the law. In In Re Athlumney [1898] 2 QB 547…, (as quoted from BELLl and ENGLE (eds) Cross on Statutory Interpretation 2 ed (1987)) R S Wright J explained the law in the following words:

“Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter(s) of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”

Similarly, the Canadian approach with regard to the presumption against retrospective construction and application of the law is summarized as follows by PROFESSOR P W HOGG in Constitutional Law of Canada 3 ed (1992)…, as follows:

“Section 58 of the Constitution Act, 1982 provides that the Act is to come into force on a day to be fixed by proclamation. That proclamation was issued by the Queen, who came to Canada for the purpose, at a ceremony in Ottawa on April 17, 1982; and the proclamation fixed April 17, 1982 as the day upon which the Constitution Act, 1982 was to come into force. The Charter of Rights accordingly came into force on that day, and operates only prospectively from that day. A statute (or regulation or by-law or other legislative instrument) which was enacted before April 17, 1982, and which is inconsistent with the Charter, will be rendered 'of no force or effect' by the supremacy clause of the Constitution, but only as from April 17, 1982. Action of an executive or administrative kind, such as search, seizure, arrest or detention, which was taken before April 17, 1982, cannot be a violation of the Charter, because the Charter was not in force at the time of the action.”

The same proposition was stated in R v James; R v Dzagic (1988) 33 CRR 107…, wherein Tarnopolsky JA opined:

“It is not an effective way to promote respect for Charter rights to apply new effects to actions taken before the Charter came into effect…, it is important that actions be determined by the law, including the Constitution, in effect at the time of the action.”

In Society for the Propagation of the Gospel v Wheeler 2 Gall. 105 at 139 (Cir. 1814) it was held:

“Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective….,.”

In my view, the presumption against retrospectivity is a necessary safeguard against the interference with legally obtained rights ex post facto. This stems from the belief that at some point the State, the parties, and third parties are entitled to rely on a common understanding of the nature of the rights acquired or transactions completed. See Du Toit v Minister for Safety and Security and Anor [2009] ZACC 22; 2010 SACR 1 (CC); 2009 (12) BCLR 1171 (CC) per Langa CJ…,.

The question which inevitably follows is whether section 69(3) of the Constitution takes away, or impairs, vested rights acquired under existing laws, or creates new obligations, imposes a new duty or attaches a new disability in respect of already completed transactions.

On the authority of the above cited cases, and the wording of section 69(3) of the Constitution, section 69(3) must be presumed to have no retrospective effect. Section 69(3) provides as follows:

“69 Right to a fair hearing

(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”

There is nothing in the language of section 69(3) of the Constitution which suggests that it is to be applied retrospectively, thus overriding the presumption.

Since section 69(3) of the Constitution is not retroactive, it does not apply to the contract between the defendant and the plaintiff, which was concluded before the Constitution came into operation.

The appeal is, however, grounded on the well-known principle against interpreting statutes in retrospect.

This is however only a general principle of law not cast in stone. Thus, in appropriate circumstances, the law may be applied in retrospect as happened in this case.

When GUBBAY CJ, in Nkomo & Anor v Attorney General & Ors 1993 (2) ZLR 422 (S), remarked that there is a strong presumption against a retrospective construction of a legal instrument he was not setting out an immutable rule of law but merely restating a well-known variable legal principle.

This, being a case involving the welfare of a minor child, the overriding consideration in interpreting and applying the law is the best interest of the child duly protected by the courts in terms of section 81(2) and (3) of the Constitution which provides that:

“(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts in particular the High Court as their upper guardian.”

Section 11 of the Matrimonial Causes Act [Chapter 5:09] provides for the payment of arrear maintenance signifying a clear departure from the common law principle against retrospectivity.

It is settled law that there is a presumption against retrospectivity of legislation, and that legislation does not govern past incidences, unless the contrary is expressly stated or necessarily inferred from the legislation.

It is within the Commissioner's powers to approach Parliament to have taxing legislation amended to avoid an ambiguity such as happened in casu and Parliament has the power to make any such amendment retrospective.

Parliament was approached to amend the proviso to section 72(2) of the Income Tax Act [Chapter 23:06] but it determined that the proviso be repealed and the issue be dealt with in a substituted subsection (11) to section 72. It did not choose to make those changes retrospective….,.

In Pretorius v Minister of Defence 1980 ZLR 395 A…, FIELDSEND CJ stated:-

“…,. The well-recognised principle relied upon…, that statutes will not be held to take away existing rights retrospectively unless they so provide expressly or by necessary intendment. Such a principle applies with increased force where, as here, a right is created by a statute, and is purported to be taken away by subsidiary legislation made under that statute which gives no specific power to legislate retrospectively.”

This case raises for determination questions of the constitutionality of civil legislation's retrospective effect.

The applicants are companies duly incorporated in terms of the laws of Zimbabwe. They made an application to the Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act (“the Constitution”). They alleged that section 18 of the Labour Amendment Act (No.5) 2015 (“the transitional provision”), as read with section 12 of the Labour Act [Chapter 28:01] (“the Act”), is unconstitutional.

The main allegation was that the transitional provision is unconstitutional because it gives retrospective effect to a new obligation imposed on an employer who terminates a contract of employment on notice to pay the employee, whose contract was terminated, “the minimum retrenchment package” of not less than one month's salary or wages for every two years of service as an employee. The obligation was retrospectively imposed on all employers who terminated employees' contracts on notice on or after 17 July 2015. The applicants alleged, in the alternative, that the transitional provision violated the following of their fundamental rights: the right to equality (section 56(1)), the right to fair labour practices (section 65(1)), and the right not to be compulsorily deprived of property (section 71(3)).

The Court holds, on the main ground on which the constitutionality of the transitional provision is challenged, that there is no constitutional provision which prohibits the use by the Legislature of the method of retrospectivity to implement civil legislation. On the alternative ground of the challenge to the constitutionality of the transitional provision, the Court holds that the applicants failed to prove the alleged infringement of any of the fundamental rights they relied upon. The retrospective imposition of new financial obligations on the applicants, to pay compensation to the employees whose employment they terminated on notice for loss of employment, respects their rights enshrined in sections 56(1), 65(1) and 71(3) of the Constitution.

The reasons for the decision now follow.

BACKGROUND FACTS

The applicants, and many other employers, were affected by the transitional provision because they had terminated contracts of employment on notice on the basis of existing law on different dates falling within the period from 17 July 2015 and the effective date of the enactment of section 12 of the Labour Act [Chapter 28:01]. The terminations followed the judgment of the Supreme Court in the case of Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC43-15, 2015 (2) ZLR 186 (SC) (“the Zuva Petroleum judgment”).

The appellants in Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC43-15, 2015 (2) ZLR 186 (SC) (the Zuva Petroleum judgment) were employed by Zuva Petroleum (Pvt) Ltd (“the company”). The company wrote letters to the appellants giving them notice of its intention to terminate their employment at the end of three months. Thereafter, the company paid the appellants cash in lieu of notice and terminated the employment relationship.

Aggrieved by the company's action, the appellants approached a labour officer alleging that the termination of their contracts of employment was unlawful. They accused the company of unfair labour practice. The labour officer failed to resolve the dispute by conciliation. He referred the dispute to an arbitrator, who subsequently found that the termination of the contracts of employment was unlawful because the appellants had not been dismissed in terms of a Code of Conduct.

The company appealed to the Labour Court on the ground that termination of contracts of employment on notice was lawful as it was provided for in the contracts between the parties. The appellants had contended, before the Labour Court, that the provisions under section 12B of the Labour Act, on “unfair dismissal”, had abolished the right of employers to terminate employees' contracts on notice. The Labour Court allowed the appeal by holding that the provisions of the Labour Act did not abolish the employer's common law right to terminate employment on notice.

The appellants appealed to the Supreme Court.

On 17 July 2015, the Supreme Court dismissed the appeal, thereby upholding an employer's right, at common law, to terminate a contract of employment on notice as provided for in the agreement between the parties.

The reaction to the Zuva Petroleum judgment was a rush by employers, including the applicants, to terminate employment relationships on notice. Termination of employees' contracts on notice became a strategy adopted by employers countrywide to get rid of employees to save costs in an environment of economic difficulties. Employees were only paid cash in lieu of notice, regardless of the length of service rendered to the employer. No further benefits accrued to the large numbers of employees whose employment contracts were terminated after 17 July 2015.

As large numbers of employees were left jobless and uncompensated for the years that they had worked for their respective employers, save for their salaries paid in lieu of notice, there was widespread public outcry. The actions of employers revealed a national crisis characterised by lack of protection for the employees who lost employment. Some of the employees were sole breadwinners for their families. Termination of sources of livelihood wrought severe financial hardships on households. That gave the Legislature the rational basis for the enactment of the legislation and for giving it retrospective effect.

LEGISLATIVE AMENDMENT

The Legislature amended section 12 of the Labour Act through section 4 of the Labour Amendment Act (No.5) 2015. Section 12 of the Labour Act provided for the duration, particulars, and termination of employment contracts. In particular, section 12(4) of the Labour Act regulated the notice periods to be given in respect of different types of employment contracts. Section 12(4) of the Labour Act was amended by the insertion of sub-paragraphs (4a) and (4b), which provide as follows:

“(4a) No employer shall terminate a contract of employment on notice unless -

(a) The termination is in terms of an employment code, or, in the absence of an employment code, in terms of the model code made under section 101(9); or

(b) The employer and employee mutually agree, in writing, to the termination of the contract; or

(c) The employee was engaged for a period of fixed duration or for the performance of some specific service; or

(d) Pursuant to retrenchment, in accordance with section 12C.

(4b) Where an employee is given notice of termination of contract in terms of subsection (4a) and such employee is employed under the terms of a contract without limitation of time, the provisions of section 12C shall apply with regard to compensation for loss of employment.”

Section 12C of the Labour Act was repealed and substituted as follows:

“12C Retrenchment and compensation for loss of employment on retrenchment or in terms of section 12(4a)

(1) An employer who wishes to retrench any one or more employees shall -

(a) Give written notice of his or her intention -

(i) To the works council established for the undertaking; or

(ii) If there is no works council established for the undertaking or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; or

(iii) If there is no works council or employment council for the undertaking concerned, to the Retrenchment Board, and, in such event, any reference in this section to the performance of functions by a works council or employment council shall be construed as a reference to the Retrenchment Board or a person appointed by the Board to perform such functions on its behalf; and

(b) Provide the works council, employment council or the Retrenchment Board, as the case may be, with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment; and

(c) Send a copy of the notice to the Retrenchment Board.

(2) Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called 'the minimum retrenchment package') of not less than one month's salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month's salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to section 12(4a)(a),(b) or (c)), no later than the date when the notice of termination of employment takes effect.

(3) Where an employer alleges financial incapacity and consequent inability to pay the minimum retrenchment package timeously, or at all, the employer shall apply, in writing, to be exempted from paying the full minimum retrenchment package or any part of it to -

(a) The employment council established for the undertaking or industry; or

(b) If there is no employment council for the undertaking concerned, to the Retrenchment Board:

which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted).

(4) In considering its response to a request for exemption in terms of subsection (3) the employment council or Retrenchment Board –

(a) Shall, where the employer alleges complete inability to pay the minimum retrenchment package, be entitled to demand and receive such proof as it considers requisite to satisfy itself that the employer is so unable, and, if so unable on the date when the notice of termination of employment takes effect, may propose to the employer a scheme to pay the minimum retrenchment package by instalments over a period of time;

(b) Shall, where the employer offers to pay the minimum retrenchment package by instalments over a period of time, consider whether the offer is a reasonable one, and may propose an alternative payment schedule;

(c) May inquire from the employer whether he or she has considered, or may wish to consider, specifically or in general, the alternatives to termination of employment provided for in section 12D.”

The applicants were aggrieved by the fact that the new obligation on employers terminating contracts of employment on notice, including contracts without time limits, to pay compensation for loss of employment calculated in terms of section 12C(2) of the Labour Act was given retrospective effect from 17 July 2015.

The transitional provision is as follows:

“18 Transitional provision

Section 12 of the Act [Chapter 28:01] as amended b