National Employment Council for the Communications and Allied Services Industry v NetOne Cellular (Private) Limited & Anor

### Preamble
Judgment No. CCZ 17/19
1
Const. Application No. CCZ 1/18
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REPORTABLE	 (19)

NATIONAL     EMPLOYMENT     COUNCIL     FOR     THE     COMMUNICATIONS     AND     ALLIED     SERVICES     INDUSTRY

v

NETONE     CELLULAR     (PRIVATE)     LIMITED     (2)     THE     MINISTER     OF     LABOUR     AND     SOCIAL     WELFARE

CONSTITUTIONAL COURT OF ZIMBABWE

GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC & BHUNU JCC

HARARE:	14 MARCH, 2018 & 9 OCTOBER, 2019

C. Mucheche, for the applicant

D. Ochieng, for the first respondent

O. Zvedi, for the second respondent

GARWE JCC:

[1]	At the hearing of the appeal against the decision of the High Court, Harare, declaring as invalid, and consequently striking down, the provisions of ss 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry, Statutory Instrument 1/12, the parties, by consent, requested the Supreme Court to refer for determination certain constitutional questions to this Court in terms of s 175(4) of the Constitution of Zimbabwe. The Supreme Court consequently referred the following question for adjudication and determination by this Court:-

“Whether section 82(1) (a) of the Labour Act, Chapter 28:01 and sections 2(a), 33 and 36 of the Collective Bargaining Agreement for the Communications and Allied Services Industry (S.I. 1/2012) violate section 21 of the former Constitution, alternatively s 58 of the Constitution of Zimbabwe, 2013 or alternatively, either section 16(1) of the former or section 71 of the Constitution of Zimbabwe.”

[2]	The record of the proceedings before the Supreme Court reflecting the respective submissions of the parties and the determination by that court that the request was not frivolous or vexatious was not attached.  The parties are however agreed in their heads of argument that they requested, and that the Supreme Court consequently referred by consent “the matter” for determination by this Court.

[3]	Having gone through the record of the proceedings, as well as submissions by counsel, both before the High Court and Supreme court as well as this Court, I am of the firm view that the matter was not properly referred and that therefore the matter ought to be struck off the roll of this Court.

FACTUAL BACKGROUND

[4]	The first respondent (“NetOne”) is a member of the Telecommunications Operators Association of Zimbabwe. On 9 January 2012, it received a letter from the applicant advising that a Collective Bargaining Agreement for the Communications and Allied Services Industry had been published as Statutory Instrument 1/2012 (“the CBA”).  The CBA made it clear that it was binding on all employers in the communications services industry and that such employers were required to register with and pay certain dues to the applicant.

[5]	Neither having been aware of, nor having participated in the creation of either the applicant or the CBA, NetOne formed the impression that it was being forced to submit to the membership of the applicant and to pay dues to it, regard being had to the fact that the Labour Act (“the Act”) makes it a criminal offence not to comply with the provisions of the CBA that are binding upon any person.  It was of the view that s 82 of the Act violated its right to freedom of assembly and association enshrined in s 21 of the former Constitution as the section made the CBA apply to entire industries without regard to which participants in the industry would have adopted the instrument. It also formed the view that s 33 of the CBA was unconstitutional in so far as the section required it to pay dues to the applicant in violation of s 16 of the Constitution.  Lastly, it was of the view that s 36 of the CBA was unconstitutional in so far as it compelled the first respondent to join the applicant.

[6]	NetOne consequently filed a court application in the High Court seeking a declaration that s 82 of the Act and the impugned provisions of the CBA violated its constitutional rights to freedom of association and to the protection of its property from compulsory acquisition without compensation.  In the event of such declaration, it also sought an order (a) striking down s 82 of the Act to the extent that it provides for the CBA to apply to all employers, contractors and respective employees in the undertaking or industry to which the agreement related and (b) striking down ss 2(a), 33 and 36 of the CBA.

[7]	The Minister, as first respondent in the High Court proceedings, opposed the application.  He averred that NetOne was not a party to the agreement because participation in collective bargaining is limited to employers’ organizations and not individual employers.  There were also remedies provided for in the Act, including the right of an appeal to the Labour Court against the decision of the Registrar of Labour to register the CBA.  Finally, the Minister submitted that the first respondent was not obliged to join the applicant but was obliged to comply with its provisions by operation of the law.

[8]	The applicant, as second respondent in the High Court proceedings, also opposed the application on two preliminary grounds.  First, that as the cause of action emanated from the Act, the High Court did not have jurisdiction to deal with the matter in the first instance.  Second, that the first respondent had approached the court with dirty hands, having refused to submit to the dictates of the CBA. On the substance, it submitted that the first respondent was legally bound by the CBA once it was registered and published.  The fact that the first respondent was not a member of an employers’ organization was irrelevant as the intention was to plug a loophole whereby an employer in a particular industry would seek to defy the minimum employment conditions set out in the CBA on the excuse that it does not belong to an employer’s association.  It accordingly denied that the sections that were sought to be impugned were unconstitutional in any way.

[9]	In its determination, the High Court considered that there were only two preliminary issues to be resolved, the issue of dirty hands having been abandoned.  It found firstly, that it (the High Court) has always enjoyed jurisdiction in constitutional matters and that the dispute between the parties was not one that the Labour Court could determine as that court had no power to determine disputes relating to violations of the Constitution, to strike down legislation or to issue declarators.  Secondly, it found that s 82(1)(a) of the Act was not violative of the rights of NetOne, it being an employer in the Communication Industry. The court however found that ss 2(a), 33 and 36 of the CBA violated NetOne’s rights in so far as those sections compelled it to behave as if it were a member of the applicant.  It accordingly struck down all three sections of the CBA.

PROCEEDINGS BEFORE THE SUPREME COURT

[10]	In its notice of appeal before the Supreme Court, the applicant, as appellant, argued that the High Court had erred in three respects.  First, in failing to uphold the preliminary point that it (the High Court) had no jurisdiction, in the first instance, to hear the merits of the matter.  Second, in failing to uphold the further preliminary point taken that as a court it lacked jurisdiction to declare legislation unconstitutional.  Lastly, that it had erred by declaring ss 2(a), 33 and 36 of the CBA to be in violation of s 21 of the Constitution and consequently striking them down. In an amendment, the applicant further impugned the judgment of the High Court for not taking cognizance of the provisions of s 18(9) of the 6th Schedule to the current Constitution of Zimbabwe and, further, for not appreciating that s 82(1)(a) of the Act and ss 2(a), 33 and 36 of the CBA constituted justifiable limitations to NetOne’s rights under s 86(2) of the 2013 Constitution.

[11]	The applicant further submitted as follows. The first respondent’s cause of action before the High Court was that s 82(1)(a) of the Act is unconstitutional and that by extension, ss 2(a), 33 and 36 of the CBA were equally unconstitutional because they derive their legitimacy from s 82(1)(a) of the Act.  The High Court had not decided on that cause of action but had proceeded to strike down the provisions of the CBA without declaring s 82(1)(a) of the Act to be unconstitutional. NetOne had not amended its pleadings in order to abandon its foundational attack on the validity of s 82(1) of the Act. The High Court had therefore failed to decide a claim that was before it.  Further, since the very existence of the CBA is sanctioned by s 82(1)(a) of the Act, an order of Constitutional invalidity in respect of the provisions of the CBA is a non sequitur if it leaves intact s 82(1)(a) of the Act.

[12]	The applicant also submitted that the High Court should have determined the matter in terms of the provisions of the new Constitution and not the old. The matter was not a pending constitutional case in terms of para 18(8) of the 6th Schedule to the current Constitution because it had neither been referred to, nor was it before, the Supreme Court on the publication date as provided for by s 18(8)(b) of the 6th Schedule.  The matter should have been heard by the High Court “as if the new Constitution had been in force when the case was commenced.”

[13]	In its submissions before the Supreme Court, NetOne argued that since the cause before the High Court was a constitutional one, the Labour Court would not have had the jurisdiction to entertain such a cause. As regards the jurisdiction of the High Court to deal with constitutional matters, it argued that s 24(1) of the former Constitution did not remove the jurisdiction of the High Court but instead created another remedy by which a litigant could directly access the Supreme Court.

[14]	After hearing the parties the Supreme Court, on 19 October 2015, made the following order.

“It is ordered by consent that:-

The matter be referred to the Constitutional Court in terms of section 175(4) of the Constitution of Zimbabwe for determination on the following arisen constitutional questions:-

Whether section 82(1)(a) of the Labour Act, Chapter 28:01 and sections 2(a), 33 and 36 of the Collection Bargaining Agreement for the Communications and Allied Services Industry (SI of 2012) violate section 21(1) of the former Constitution alternatively section 58 of the Constitution of Zimbabwe, 2013; or alternatively, either section 16(1) of the former or section 71 of the Constitution of Zimbabwe.

The appellant shall pay today’s wasted costs.”

[15]	Pursuant to that order, the Registrar of the Supreme Court referred the matter and accompanying documents to the Registrar of this Court on 12 January 2018.  The matter was in due course set down for hearing before this Court for 14 March 2018.

PROCEEDINGS BEFORE THIS COURT

[16]	In heads of argument filed on its behalf before this Court, the applicant has submitted that ss 2(a), 33 and 36 of the CBA are intra vires the enabling legislation, and in particular s 82(1) of the Act.  The finding by the High Court that these sections were unconstitutional was therefore legally untenable.  This is because subs (1), (2) and (3) of s 82 of the Act find expression in the impugned sections of the CBA, the intention of the legislature having been to create uniform minimum terms and conditions of employment within a particular sector, industry or undertaking which bind all employers, employees, trade unions and employers’ organisations within that undertaking.  Put another way, the fact that the High Court did not declare s 82(1), (2) and (3) of the Act to be unconstitutional means that ss 2(a), 33 and 36 of the CBA cannot be unconstitutional. In any event, to the extent that the impugned provisions of the CBA may limit NetOne’s freedom of association and its right to property, such limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

[17]	In its heads of argument filed with this Court, NetOne submitted as follows.  It does not persist with the averment made before the High Court that s 82(1)(a) of the Act and s 2(a) of the CBA are unconstitutional.  Consequently, the issue that remains is whether ss 33 and 36 are consistent with either s 58 or 71 of the Constitution.  In its view, s 33 of the CBA requires it to make compulsory payments to the applicant and this amounts to compulsory acquisition of its property, contrary to s 71 of the Constitution.  Section 36 of the CBA, on the other hand, requires the applicant to become acquainted with “its affairs” and is, therefore, a violation of s 58 of the Constitution.

[18]	NetOne further contended that there is no provision in the Act which confers specific authority on a national employment council for the collection of dues. Section 58(d) of the Labour Act provides for the recovery of dues from “the members thereof”.  In terms of s 74(5) of the Act, a CBA may not contain provisions that are inconsistent with the Act. Therefore the imposition of dues on employers is inconsistent with s 58(d) of the Act.  NetOne therefore contends that s 33 of the CBA should be struck down to the extent that it allows the recovery of dues from entities that are not associated with applicants’ members.  Similarly s 36 of the CBA ought to be struck down to the extent that it obliges entities that are not connected with applicant’s membership to associate with the applicant.

[19]	Mr Ochieng, for NetOne, further argued as follows. The definition of “law”, in terms of s 332 of the Constitution, includes a statutory instrument.  The validity of a statutory instrument can therefore be determined on its own.  Part of the reason why the CBA is unconstitutional is that the employer is obliged to deduct dues from an employee’s remuneration without any correlative duty on its part to contribute its own finances towards such dues.  Section 74(5) of the Act provides that a CBA shall not contain any provision which is inconsistent with the Act.  Therefore s 33 cannot validly impose upon an employer the obligation to match any deductions effected against the wages or remuneration of an employee.

[20]	The Minister, on the other hand, argues that s 82(1) of the Act, which makes a CBA binding on all employers in an undertaking, is a law of general application.  Since the impugned sections of the CBA, namely, 2(a), 33 and 36, draw their life from s 82(1) of the Act, those sections cannot be said to be ultra vires the Constitution of Zimbabwe.

HIGH COURT DID NOT FIND SECTION 82(1)(a) TO BE UNCONSTITUTIONAL

[21]	The High Court found that s 82(1) of the Act was not unconstitutional, but did not, thereafter, include, as part of its disposition, an order dismissing the declaration sought that the section was unconstitutional.  The court remarked as follows at page 9 of its judgment:-

“… I find merit in the submissions made by Mr Mucheche that the whole fabric of the process of collective bargaining and enforceability is meant to protect the interests of those parties that are affected by it.  The law maker determined that the registration of the CBAs shall have the effect of binding all players in the industries to which they apply.  Not to do so would defeat the objectives of collective bargaining some of which are to restore the unequal bargaining positions between employers and employees … Statutory intervention is justified to deter some unscrupulous employers from abusing and trampling upon the rights of employees with impunity.”

The court consequently concluded that it did “not see how the applicant’s right to freedom of association is violated.”

[22]	The court however found that s 36 of the CBA violated NetOne’s rights “in so far as it compels the applicant to behave as though it was the second respondent’s member by requiring it to register with it.” It also found that ss 2(a) and 33 of the CBA violated NetOne’s right to freedom of association.  Consequently the court struck down all three sections.

[23]	The finding by the High Court that s 82(1) does not violate any of NetOne’s rights was not taken up on appeal before the Supreme Court. Nor was the failure by the High Court to specifically include, in its disposition, an order declaring s 82 of the Act to be consistent with the Constitution raised on appeal.  To the contrary, the applicant, as appellant, raised other issues relating to the jurisdiction of the High Court to determine a question regarding the contravention of the Declaration of Rights, joinder of NetOne’s employees in the application, whether the court a quo correctly impugned the relevant provisions of the CBA whilst confirming the validity of s 82(1) of the Act, whether the matter should have been dealt with in terms of the old or new Constitution and whether the impugned provisions were, in any event, justifiable within the scheme of s 65(5)(a) of the current Constitution.

[24]	It is clear therefore that, at the time that the appeal fell to be determined by the Supreme Court, the validity of s 82(1) of the Act was not an issue.  The High Court had found that the section was valid.  As noted earlier in this judgment, the failure by the High Court to specifically include that finding in its disposition was not appealed against. Indeed, in its heads of argument before this Court, NetOne has confirmed that it does not contend that ss 82(1)(a) of the Act or 2(a) of the CBA is not constitutional. In the circumstances, the validity of s 82(1) of the Act could not have provided a basis for a referral in terms of s 175(4) of the Constitution.

[25]	The Supreme Court was therefore wrong to include, in the question requiring determination by this Court, the constitutionality of s 82(1)(a) of the Labour Act. The real issue before the Supreme Court was whether ss 33 and 36 of the CBA were consistent with the Constitution.

VALIDITY OF SECTIONS 33 AND 36 OF THE CBA NOT A CONSTITUTIONAL MATTER

[26]	Sections 33 of the CBA imposes the obligation to pay dues on employers and employees who fall under the particular undertaking or industry to which the agreement relates.  Section 36 of the CBA in turn requires every employer in the undertaking or industry whose name was not on the list of employers as at the date of coming into force of the CBA, within one month of the agreement coming into force, to notify the Secretary General of the names and business address, contact details, the number of employees in the company, the names of subsidiary companies in the same industry as well as a description of the trade or occupation carried on by the employer. The employer is also required, in terms of s 36(2), to render a declaration to the Secretary General on various other issues.

[27]	As already noted, s 82(1) (a) of the Act provides that where a collective bargaining agreement has been registered, it shall, with effect from the date of its publication, be binding on not only the parties and their members to the agreement but also on all employers, contractors and their employees in the undertaking or industry to which the agreement relates.  Section 82 of the Act therefore provides a legal basis for the CBA to be binding on all players in a particular industry.

[28]	Whether or not ss 33 and 36 of the CBA are consistent with the provisions of the Act is not a constitutional issue.  It is not an issue that involves the interpretation of the Constitution but rather whether the CBA is consistent with the enabling Act.

[29]	Since it was not in dispute before the court a quo that s 82(1)(a) of the Act was not unconstitutional, it was not proper for the parties to seek, a quo, the referral to this Court of the question, inter alia, whether ss 33 and 36 of the CBA were unconstitutional. This offends against the principles of avoidance and subsidiarity. In Zinyemba v Minister, Lands and Rural Settlement and Another CCZ 3/2016 Const. Application No. CCZ 123/13 MALABA DCJ (as he then was) commented:

“Two principles discourage reliance on the constitutional rights to administrative justice.  The first is the principle of avoidance which dictates that remedies should be found in legislation before resorting to constitutional remedies.  The second principle is one of subsidiarity which holds that norms of greater specificity should be relied on before resorting to norms of greater abstraction.”

[30]	In Moyo v Sergeant Chacha CCZ 7/17, this Court further stated:-

“One cannot ignore non-constitutional remedies preferring to directly enforce the right as enshrined in the Constitution … where the question for determination is whether conduct the legality of which is impugned is consistent with the provisions of a statute, the principle of subsidiarity forbids reliance on the Constitution, the provisions of which would have been given full effect by the statute.”

[31]	In short, a person who alleges that his or her constitutional right has been infringed must rely on legislation enacted in order to protect that right. He may not rely on the underlying constitutional provisions directly when bringing an action to protect the right, unless he or she intends to attack the constitutional validity or efficacy of the legislation itself. In this regard see also Majome v ZBC and Others CCZ 14/2016; Mazibuko and Others v City of Johannesburg and Others 2010(4) SA 1(CC); South African National Defence Union v Minister of Defence and Others 2007 ZACC 10; My Vote Counts NPC v Speaker of The National Assembly and Others 2016 (1) SA 132 (CC).

[32]	The position is also now settled that the courts will not normally consider a constitutional question unless the existence of a remedy depends upon it. If a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights – See Sports and Recreation Commission v Sagittarius Wrestling Club and Another 2001(2) ZLR 501(S).

[33]	Further, it is a requirement that the constitutional issue referred by the court a quo must be one the determination of which is necessary for the disposition of the dispute between the parties before that court.  In other words, the decision on the constitutional matter raised must have been so inextricably linked to the disposition of the controversy between the parties that the success or failure of the relief sought was dependent on it.

[34]	In the present matter, the question whether s 2 (which issue was subsequently abandoned), ss 33 and 36 of the CBA were consistent with the Act was an issue that fell for determination by the Supreme Court.  That court did not need a determination by this Court on the very same issue for it to dispose of that matter.

DISPOSITION

[35]	From the foregoing, it is apparent that no consideration was given as to whether a constitutional issue had arisen before the Supreme Court. Since s 82(1)(a) of the Act was not being impugned, as well as s 2(a) of the CBA (which is predicated on s 82(1)(a) of the Act), the question whether ss 33 and 36 were valid was not an issue requiring the interpretation of the Constitution. It was an issue that lay squarely on the lap of the Supreme Court. That court did not require any determination by this Court on the same issue for it to dispose of the matter before it.

[36]	Notwithstanding the fact that there were a number of other irregularities associated with the referral, such as the failure to relate the facts to the question that was being referred for determination by this Court and, further, the basis upon which the request was found not to be frivolous or vexatious, it is clear, on a consideration of the circumstances of the matter as a whole, that there was no basis for the referral of the question whether ss 33 and 36 of the CBA violated certain rights enshrined in the Constitution.  The request ought, therefore, to have been found to have been frivolous and vexatious and consequently declined.

[37]	In the result, the request having been improperly referred in terms of s 175(4) of the Constitution, the matter is struck off the roll with no order as to costs.

GWAUNZA DCJ:		I agree

MAKARAU JCC:		I agree

GOWORA JCC:		I agree

HLATSHWAYO JCC:	I agree

PATEL JCC:			I agree

GUVAVA JCC:		I agree

MAVANGIRA JCC:		I agree

BHUNU JCC:		I agree

Messrs Matsikidze & Mucheche, appellants’ legal practitioners

Messrs Coghlan, Welsh & Guest, 1st respondent’s legal practitioners

Civil Division of The Attorney-General’s Office, 2nd respondent’s legal practitioners