ZIYAMBI JCC:
[1] On
23 July, 2015, the applicants filed a notice of appeal to the Constitutional Court
against a judgment of the Supreme Court dismissing their appeal. This is an application for the appeal to be
set down for hearing on an urgent basis.
[2] At the
onset of the hearing of the application, I invited Mr Madhuku to address me on: whether the applicants have a right of
appeal, in terms of the Constitution of Zimbabwe, from a judgment of the
Supreme Court; and whether or not the applicants had made out a case on the
papers, for an urgent hearing of the matter.
[3] Mr Madhuku submitted that the applicants
derive their right of appeal from s 167(5)(b) as read with s 169 (1) of the
Constitution. The provisions are set out
hereunder. Great emphasis was placed on the underlined words.
“167 Jurisdiction of Constitutional Court
(1) –(4)….
(5) Rules of the
Constitutional Court must allow a person, when it is in the interests of
justice and with or without leave of the Constitutional Court—
(a)
to bring a constitutional matter directly to the Constitutional Court;
(b)
to appeal directly to the Constitutional Court from any other court;
(c)
to appear as a friend of the court.
169
Jurisdiction of Supreme Court
(1) The Supreme Court is the final court
of appeal for Zimbabwe, except in matters over which the Constitutional
Court has jurisdiction”.
[4] As I understand it, the submission was
that sub s (5) (b) grants a right of appeal to the applicants in a case such as
this where the alleged violation, by the Supreme Court, of the applicants' constitutional
right in terms of s 56(1) of the Constitution
only became apparent after the judgment was handed down. In these circumstances,
so it was submitted, the applicants could approach this Court directly on
appeal.
[5] He
further submitted, although this was denied by Mr Chagonda, for the respondent,
that in his heads of argument before the Supreme Court, the constitutional
issue based on a possible violation of s 56(1) of the Constitution was
raised. In answer to the question as to
why he had not proceeded in terms of s 175 (4) which allows him to request a referral
of the issue to the Constitutional Court, he replied that s 175 (4) was not the
only way of approaching the Constitutional Court and that since the violation was
only apparent after the judgment was delivered, the applicants were entitled in
terms of s 167(5) (b) to appeal directly to the Constitutional Court. As authority for this proposition he referred
to the following South African cases:
NEHAWU
V UNIVERSITY OF CAPE TOWN & ORS 2002(4) BLLR 311
(LAC);
Z.SIDUMO
& ANOR V RUSTENBERG PLATINUM MINES LTD 2007 ZACC 22;
NATIONAL
UNION OF METAL WORKERS OF SOUTH AFRICA V BADER BOP (PTY) LTD 2003 (3) SA 513
CC.
The first and last
cases referred to are judgments in applications for leave to appeal which leave
was granted and both appeals allowed.
The second was in respect of an application to the Constitutional Court
of South Africa. None of the judgments
are of assistance in determining whether the applicants in casu have established a right of appeal to the Constitutional
Court from a judgment of the Supreme Court.
URGENCY
[6]
On the question of urgency, Mr Madhuku submitted that the test for
urgency is 'not the same' in constitutional matters. He submitted that the urgency in this case
arises not from the personal circumstances of the applicants, but from the
public interest and the public importance of the case. Consideration had to be
given to the interests of society and judicial notice ought to be taken that
thousands of people had already lost their jobs since the judgment sought to be
appealed against was delivered. Neither
in the certificate of urgency nor in his submissions before me was any
reference made to any circumstances of the applicants which might give rise to
a need for an urgent hearing of the matter.
RESPONDENT'S SUBMISSIONS
[7]
On the question of the right of
appeal, Mr Chagonda submitted that
the alleged appeal said to be pending before the Constitutional Court is in
fact a nullity as the applicants have no right of appeal against the judgment
of the Supreme Court.
He submitted that an
appeal invites a superior court to determine the correctness of the lower court's
decision on issues which were placed before it.
There were no constitutional issues placed before the Supreme Court for
determination, or determined by the Supreme Court. There could, therefore, be
no right of appeal since no decision was made by that court on constitutional
matters.
[8]
It was further submitted that the
proper recourse available to the applicants was to bring an application in
terms of s 85 of the Constitution if it was felt that a breach of their
fundamental rights had occurred.
[9]
On the question of urgency, Mr Chagonda submitted that there was no
urgency justifying the order sought by the applicants. The matter commenced as a simple labour
dispute which was finally heard on appeal, by the Supreme Court, in February
2015. At no stage during the protracted proceedings which commenced at the
respondent's workplace and from there moved to the Labour Officer, the
arbitrator, the Labour Court and finally the Supreme Court, was there ever any
question of the matter being determined on an urgent basis.
[10] The cases of other employees whose
employment had been terminated were not before this Court, never were, and are
not in any way linked to the applicants' case.
It was
submitted that on both grounds, the application ought to be dismissed.
DISPOSITION
[11] Having considered the submissions by the
parties I agree with Mr Chagonda that
the applicants have not established any right to approach the Constitutional Court
by way of appeal. Section 167(5) relates
to rules of procedure regulating the manner of approach to this Court on appeal
from lower courts. It does not confer a
right to appeal to the Constitutional Court on a litigant who has no right of
appeal. For this right, the litigant
must look elsewhere in the Constitution.
In my view, such a right may be read into s 175 (3) of the Constitution
which applies where an order of constitutional invalidity of any law has been
made by a court. Failing that, a right
of appeal could only arise where the Supreme Court makes a decision on a
constitutional matter.
[12] The applicants have not alleged that s 175
(3) applies in their case. Since no
constitutional issue was determined by the Supreme Court, no appeal can lie
against its decision. It follows that the applicants have not
established a right of appeal to the Constitutional Court and any appeal filed
in this matter by the applicants is a nullity as it conflicts with the
provisions of s 169(1) of the Constitution.
[13] The above finding is dispositive of the
application. I must, however, note that
even if the applicants had established a right of appeal to the Constitutional
Court, the application would have been dismissed on the basis that no urgency
has been established which would justify the grant of the order sought.
The only basis on which
the order was sought is that “several employees have had their contracts of
employment indiscriminately terminated on notice and the Court should take
judicial notice of this development”. The employees referred to are not parties
to this application. I therefore agree
with Mr Chagonda that no basis was
established for the grant of the order sought by the applicants.
[14] Accordingly the application is dismissed
with costs.
Matsikidze & Mucheche,
applicants' legal practitioners
Atherstone & Cook, respondent's legal
practitioners
56 Equality
and non-discrimination
