Ronald Kandemiri & ORS V First Capital BANK Limited

### Preamble
Judgment No. CCZ 18-25
Const. Application No. CCZ 25/25
1
REPORTABLE (11)
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REPORTABLE (11)

RONALD KANDEMIRI & ORS

v

FIRST CAPITAL BANK LIMITED

CONSTITUTIONAL COURT OF ZIMBABWE

MAKARAU JCC, GOWORA JCC & PATEL JCC

HARARE, 16 SEPTEMBER 2025 & 11 NOVEMBER 2025

M. Gwisai for the applicants

S. Bhebhe for the respondent

PATEL JCC:		This is an application for direct access in terms of s 167(5)(a) of the Constitution, as read with r 26 of the Constitutional Court Rules, 2025. In essence, the application challenges the decision of the Supreme Court on the grounds that it violated the applicant’s fundamental rights under ss 56(1) and 65(1) of the Constitution, which respectively guarantee the right to equality and non-discrimination and the right to fair labour standards and practices. The applicants contend that the Supreme Court failed to properly adjudicate the appeal before it, by refusing to subject ss 12C(1) and 25A(5) of the Labour Act [Chapter 28:01] to a constitutionally infused interpretive lens and by its mechanical reliance on literal statutory construction, in circumstances where constitutional norms demanded a more purposive and harmonised approach.

The Background

The applicants are former employees of the respondent. The respondent is First Capital Bank Limited, a company duly incorporated under the laws of Zimbabwe. The background to the matter began in 2017 when the respondent began transitioning from the systems of Barclays Bank, its former majority shareholder, to its own systems.  This transition was completed in 2019. In March 2019, the respondent also carried out an IT systems migration that led to changes in its operational model and its staff, including the applicants, who were aware of this migration as well as its likely effects.  Pursuant to these changes, the respondent’s management met with the works council on 5 August 2019, at which meeting the works council was informed of the respondent’s intention to retrench some members of staff due to the changes in its operational model as well as the prevailing macroeconomic environment.  A follow-up feedback meeting was held on 9 August 2019.

After the retrenchment exercise was completed, the applicants filed an unfair labour practice complaint with the National Employment Council for the Banking Industry, alleging that their retrenchment was unlawful because they had not been consulted prior to the decision to retrench having been made.  The Designated Agent upheld the applicants’ complaint and made a determination setting aside the applicants’ retrenchment and reinstating them to their employment.  The respondent was aggrieved and appealed to the Labour Court. The appeal was upheld.  The applicants then appealed to the Supreme Court, which appeal was not successful.

The Application for Direct Access

The applicants, aggrieved by the decision of the Supreme Court, have approached this Court with an application for direct access. The applicants allege that the Supreme Court, under judgment No. SC 22-25, violated their right to fair labour standards and practices enshrined in s 65(1) and the right to equal protection and benefit of the law under s 56(1) of the Constitution.  The applicants contend that the impugned conduct is not the mere result reached by the Supreme Court but lies rather in the manner of adjudication employed by the court. More specifically, it is averred that the court failed to subject the statutory provisions under consideration to a constitutionally infused interpretive lens and mechanically relied on literal statutory construction where the applicable constitutional norms demanded a more purposive and harmonised approach.

It is the applicants’ position that the appeal before the Supreme Court raised, inter alia, the question whether the provisions of s 25A(5) and 12C(1) of the Labour Act could be interpreted in a manner that dispensed with the employer’s duty to consult workers prior to retrenchment, without thereby infringing s 65(1) of the Constitution.  The applicants contend that the court a quo, by excluding constitutional context from its interpretive matrix, violated their rights to procedural and substantive fairness in the retrenchment process, and failed to afford them the protection of the law to which they were entitled under ss 56(1) and 65(1).

If granted leave, the applicants intend to bring a substantive constitutional application in terms of s 85(1) of the Constitution and rule 27 of the Rules, seeking declaratory and consequential relief for the violation of their constitutionally protected rights by the Supreme Court.

Submissions by Counsel

Mr Gwisai, for the applicants, submits that the principal argument by the applicants was to the effect that the Supreme Court adopted an interpretation mode in which it avoided applying constitutional interpretation, which was mandatory in interpreting ss 25A(5) and 12C(1) of the Labour Act. He argues that by avoiding dealing with constitutional interpretation, the court a quo effectively violated the applicants’ rights under ss 65(1) and 56(1) of the Constitution. He further contends that the court a quo, in its judgment, took the incorrect position that ss 25A(5) and 12C were precise and unambiguous and that, therefore, there was no need to go beyond the literal and golden rules of interpretation.

Counsel also submits that the court a quo ought to have interpreted the provisions of the Labour Act in a manner that accords with s 46(2) of the Constitution, which states that courts must be guided by the spirit of the Constitution in interpreting the law. He argues that the court a quo silently applied the doctrine of constitutional avoidance, which resulted in absurd and unjust results. Further, he submits that, even without the Constitution, the court a quo ought to have been guided by the interpretation section of the Labour Act, which calls for a purposive approach in interpreting the provisions of the Act. According to counsel, the court a quo effectively allowed the mass retrenchment of employees without consultation.

Per contra, Mr Bhebhe, for the respondent, submits that the decision of the Supreme Court on non-constitutional matters is final and correct, and no disguise can be used by a litigant to challenge the decision. To support this proposition, he places reliance on s 169(1) of the Constitution and s 26 of the Supreme Court Act [Chapter 7:13]. Counsel argues that the court a quo answered both questions before it by relating to the provisions of the Labour Act through interpretation by the golden rule. He contends that the obligation placed on an employer is to notify and not to consult the works council.

Mr. Bhebhe submits that the court a quo was correct, as there was no challenge to the constitutionality of the relevant provisions of the Labour Act. He further submits that the court a quo could not substitute the word “notify” with “consult” or delete the proviso to s 25A(5) of the Act. Additionally, the same applies to s 12C as the Supreme Court only interprets and does not change the law, since the provisions are deemed to be constitutional and no absurdity arises from those provisions. Counsel also contends that any possible contradiction between the proviso to s 25A(5) and s 12C is not there, as the proviso relates to consultation and s 12C relates to giving a written notice. In any case, even if there is a contradiction, s 12C(1) came at a later stage and should therefore prevail.

Counsel submits that the instant application is a disguised appeal and must therefore fail. He notes that the draft order in the substantive application is the same as the relief that the applicants sought in the proceedings before the court a quo in a non-constitutional matter. He further argues that a fair and equitable remedy cannot be the reinstatement of the employees where they allege the application of unfair principles. Counsel therefore prays for the dismissal of the application.

The Governing Principles

The principles governing direct access to this Court are clearly defined. Not every individual with a constitutional concern has an automatic right to petition this Court. Rather, direct access is a discretionary remedy, only granted when the requirements stipulated in the Court’s Rules are meticulously fulfilled. Rule 26(4) sets out the essential elements of such an application, in particular, the interests of justice. Additionally, r 26(9) delineates the key factors that must guide the Court’s discretion, viz. the prospects of success, the availability of alternative remedies, and the resolution of any factual disputes. The crux of the present application is whether the interests of justice favour the granting of direct access to the applicants.

Constitutional Matter before the Court

In order to determine whether the application before this Court has merit, it is important to first determine whether there is a constitutional matter before the Court. A constitutional matter is defined in s 332 of the Constitution as a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution. In Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC), this Court defined a constitutional matter, at 150D, as follows:

“The import of the definition of ‘constitutional matter’ is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”

A constitutional matter arises where the relief sought by the party alleging an infringement of a right is only obtainable through the interpretation, protection, or enforcement of a provision of the Constitution and not from any other subsidiary law.

The application before this Court is against a decision of the Supreme Court. The matter before the Supreme Court was not a constitutional matter and the order given by the Supreme Court is not on any constitutional issue. It is trite that the Supreme Court is the final court of appeal in all matters except those that are constitutional in nature. The applicants’ principal contention is that the Supreme Court, in its decision, interpreted the provisions of the Labour Act in the wrong way and that, because it was wrong, its decision infringed the applicants’ fundamental rights. It is on this basis that the applicants call upon this Court to intervene and interfere with the Supreme Court decision.

It is trite that a matter does not become constitutional merely because a court is asked to consider it in that way. The invitation by the applicants to the Supreme Court to look at the matter through a constitutional perspex does not ipso facto convert the matter into a constitutional one. Moreover, the applicants have failed to demonstrate that the relief that they seek is only obtainable through the Constitution and not from the relevant provisions of the Labour Act. In short, there is no constitutional matter before this Court.

Limited Review of Supreme Court Judgments

The jurisprudence of this Court is clear as to when the Court’s review jurisdiction is triggered in relation to Supreme Court judgments. In Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 2-24, it was held as follows, at pp. 10-11:

“It must be emphasised that the decision of the Supreme Court in a non-constitutional matter is final and that its correctness cannot be challenged simply on the basis that it might be wrong. See Williams & Anor v Msipa N.O. & Ors 2010 (2) ZLR 552 (S), at 567B-C; the Lytton Investments case, supra, at p 23; Machine v Sheriff for Zimbabwe & Ors CCZ 8-23, at p 9. The tests to be applied in scrutinising the final determination of the Supreme Court in a non-constitutional matter were lucidly articulated in the Lytton Investments case, supra, at pp 19-20, as follows:

‘The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant’s right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue.

The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court’s failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.’ ”

In Unifreight Africa Limited v Mashinya CCZ 13-24, it was held as follows, at p. 11:

“It is important to emphasise at this juncture that the matter in the court a quo was not premised on the interpretation, protection or enforcement of the Constitution. In other words, there was no constitutional question for determination before the court. Rather, the main issue was whether the respondent’s damages were to be paid using the interbank rate of exchange or the rate of one United States dollar to one Zimbabwean dollar.

Generally speaking, the jurisdiction of this Court in relation to any decision of the Supreme Court is ordinarily only triggered where there is evidence to demonstrate that such decision violated one or more of the applicant’s fundamental rights. The mere allegation of an infringement of a human right does not necessarily mean that a constitutional issue has arisen.”

Thus, it is clear that the mere allegation that the decision of the Supreme Court infringed the applicant’s right is not enough. What has to be demonstrated is how that right was infringed and whether it has actually been infringed.

As already stated earlier, the matter before the Supreme Court was not a constitutional matter and the order given by the Supreme Court did not engage any constitutional issue. Even though the applicants seek to bring an application in terms of s 85 of the Constitution alleging the infringement of a number of rights, it does not automatically follow that there is a constitutional issue that will trigger the jurisdiction of this Court. This position was firmly set out in Chani v Mwayera NO & Ors 2020 (1) ZLR 17 (CC), at 20G. In order to approach this Court in terms of s 85 of the Constitution, the applicants must establish that the Supreme Court acted in a manner that is contrary to the law. That is the only basis upon which the judgment of the court a quo can be set aside at this stage.

Alleged Failure to Act in Accordance with the Law

A consideration of the proceedings before the court a quo reveals that the applicants’ appeal before that court rested on two principal grounds. The first ground was directed at the Labour Court’s interpretation of the proviso to s 25A(5) of the Labour Act, which, according to the applicants, had the effect of excluding the employer’s obligation to consult the works council. The second ground assailed the finding of the Labour Court that s 12C(1) of the Act does not impose a mandatory requirement of consultation, nor does it give rise to an implied necessity for consultation under s 12C(1)(b).

The applicants contended before the Supreme Court that the respondent was enjoined, by virtue of s 25A(5)(f) of the Act, to consult the works council prior to implementing its decision to retrench them. They further argued that the process adopted was in contravention of s 12D(2) of the Act, which obliges an employer to propose measures to avoid retrenchment before issuing a notice of intention to retrench. It was their case that the provisions of ss 25A(5)(f) and 25A(6), when read together with the purposive directive in s 2A(1) of the Act, render it mandatory for an employer to consult the works council before effecting retrenchments. They urged the court that the proviso to s 25A(5) be accorded a purposive interpretation, so as to align it with the underlying spirit and objectives of the Act, in order to safeguard the consultative rights of employees faced with retrenchment.

In arriving at its decision, the Supreme Court held that the proper approach to statutory interpretation is to apply the grammatical and ordinary meaning of the words used, unless doing so would lead to an absurd result. The court further undertook a detailed discussion of the nature and effect of a proviso in general. It then found that the provisions in question were clear and unambiguous. In its view, the applicants were effectively inviting the court to amend s 25A(5) of the Labour Act by deleting the proviso and retaining only the main provision. The court emphasised that it had no authority to do so, as such an approach would amount to usurping the legislative function. The court also concluded that s 12C was equally clear and unambiguous. The court a quo went further to trace the legislative history of s 12C, ultimately finding that the section was couched in clear and precise terms and that there was therefore no need to adopt a purposive approach in its interpretation.

As rightly held by the Supreme Court, a court can only rely on other canons of interpretation where reliance on the literal interpretation of a provision leads to an absurdity. All in all, I find no reason to fault the analysis of the Supreme Court. A plethora of case law has explained the golden rule of interpretation. It postulates that, in the absence of any ambiguity, absurdity or repugnance, the language used in a statute should be given its primary grammatical and ordinary meaning.  This was aptly elaborated in Chegutu Municipality v Manyora 1996(1) ZLR 262 (S), at 264 D-E as follows:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Pearson (1857) 10 ER 1216 at 1234, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.”

Again, in Lungu & Ors v Reserve Bank of Zimbabwe SC 04-24, at p. 11, it was emphasised as follows:

“It is trite that words in any document, statute, or contract must be given their ordinary dictionary meaning unless this would lead to an absurdity.   In the absence of a contrary definition within the document, statute, or contract such words must be given their plain, ordinary and literal meaning.  This is the literal or golden rule of interpretation.  Only when ambiguity arises in the interpretation of such words can there be a departure from this rule.”

The applicants’ argument before this Court is essentially twofold. The first argument is that the Supreme Court did not accord a purposive interpretation to the relevant provisions of the Labour Act. This is indeed correct as the court a quo did not find those provisions to be ambiguous or as requiring anything other than their ordinary or grammatical construction. The second argument is that the Supreme Court should have approached the matter as if the constitutionality of the provisions in question had been challenged. The two arguments are made in the same breath as if they are synonymous. They are clearly not the same.

In my opinion, a purposive interpretation is not necessarily a constitutional one. The former involves a consideration of the underlying purpose or objective of the provision concerned, having regard to its context and the related provisions of the statute in which it appears. The latter, on the other hand, invariably engages one or more provisions of the Constitution as the supreme law of the land.  The two are very different modes of interpretation and call for different conceptual considerations. The applicants have improperly and incompetently conflated these two distinctive interpretive approaches.

In short, the applicants could not competently have challenged the provisions of the Labour Act in the manner that they did. If it was the intention of the applicants, which it seems to have been, to challenge the constitutionality of the contentious provisions, they should have done so explicitly and at the appropriate time before the appropriate forum. They needed to adopt a head-on frontal attack instead of seeking “a purposive interpretation through a purposive lens”. Their indirect and tangential approach in casu appears to be legally inept and incompetent on the facts of this matter.

Alleged Error in Interpretation

For the sake of completeness, it seems necessary to examine the three sections under consideration so as to ascertain whether the court a quo erred in its interpretation of those provisions, resulting in the alleged infringement of the applicants’ rights. The applicants were retrenched with effect from 31 August 2019. At that time, before the Labour Act was amended by Act No. 11 of 2023, s 25A(5) of the Act provided as follows:

“(5) Without prejudice to the provisions of any collective bargaining agreement that may be applicable to the establishment concerned, a works council shall be entitled to be consulted by the employer about proposals relating to any of the following matters:

…

…

…

…

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the retrenchment of employees, whether voluntary or compulsory:

Provided that any matter involving the retrenchment of five or more employees within a period of six months shall be governed by sections twelve C and twelve D, unless otherwise agreed by the employer with the members of the works council representing the workers' committee.”

Section 12C(1) of the Act, in its relevant portions, enjoined an employer who wished to retrench any one or more employees to give written notice of its intention to do so, firstly, to the works council or, secondly, to the employment council or, ultimately, in the absence of a works council or employment council established for the undertaking or industry, to the Retrenchment Board. It also required the employer to provide details of every employee whom it wished to retrench and the reasons for the proposed retrenchment. Very importantly, s 12C(2) stipulated the payment to every retrenchee by the employer of a minimum retrenchment package, i.e. not less than one month’s salary or wages for every two years of service, unless better terms were agreed between the employer and employees concerned.

In turn, s 12D(1) of the Act, prescribed special measures to avoid retrenchment, including, inter alia, the provision of relevant information on any major changes in production, programmes, organisation or technology that were likely to entail the retrenchment of any employees. Section 12D(2) enabled the parties to agree on certain alternatives to retrenchment, in particular, placing the employees on short-time work or instituting a system of shifts. Additionally, the remaining provisions of 12D elaborated the detailed procedures to be followed in the event that agreement was either reached or not reached on the alternatives to retrenchment.

In my view, a coherent reading of the three provisions outlined above does not lead to any ambiguity or absurdity. Nor does it entail any constitutional anomaly or repugnance. The provisions are clear and do not require any departure from the golden rule of interpretation. Section 25A(5)(f) entitles a works council to be consulted on any voluntary or compulsory retrenchment. However, the proviso thereto directs that, where five or more employees are to be retrenched within a period of six months, the process is to be governed instead by ss 12C and 12D. Section 12C(1) sets out the formal retrenchment procedure to be followed, requiring written notice and full disclosure to the works council, employment council or Retrenchment Board, as the case may be. Lastly, s 12D delineates the detailed processes to be applied as alternatives to retrenchment. Read together, the provisions create a logically tiered framework: smaller retrenchments fall under the right to be consulted under s 25A(5), while larger retrenchments trigger the more detailed statutory regime prescribed by ss 12C and 12D. Taken together, the three sections of the Labour Act are not in conflict but must be applied to operate in a complementary and cohesive fashion.

In the final analysis, it is abundantly clear that the Supreme Court acted in terms of the dictates of the governing procedural and substantive law. It therefore cannot be said that the court a quo failed to act in accordance with the law and that such alleged failure violated the applicants’ right to equal protection and benefit of the law and the right to fair labour practices. Ultimately, there is no constitutional question or any infringement of the applicants’ fundamental rights for this Court to adjudicate and determine.

Apart from there being no constitutional issue before this Court, the Labour Court and the Supreme Court cannot be said to have erred. This is because s 25A as read with ss 12C and 12D of the Labour Act can be interpreted and applied together coherently without any ensuing ambiguity or absurdity. There is certainly no warrant or justification for interpreting or applying these three provisions otherwise. In short, there is no need for a constitutional interpretation or any other mode of interpretation. This is particularly so, given that the applicants have not directly impugned or challenged the constitutionality of the three provisions in question, either in the courts below or before this Court.

Disposition

In light of the foregoing, it is evident that the applicants are merely dissatisfied litigants seeking to obtain relief from this Court on the basis of a non-existent constitutional question. What has been placed before the Court is, in essence, a disguised appeal aimed at overturning the decision of the court a quo. The applicants have not demonstrated a prima facie case warranting the constitutional review of that decision or any prospects of success in the event that leave to apply for direct access is granted. I am amply satisfied that it would not be in the interests of justice for the instant application to be allowed.

In the result, I find that the application for direct access must fail for the reasons set out above. The applicants have failed to establish a sufficient case to warrant the relief that they seek.

Ordinarily, inasmuch as there is no constitutional issue properly before this Court, the appropriate order would be to strike the matter off the roll. However, given the critical failure to demonstrate a prima facie case or any plausible prospects of success bearing on the alleged aberrations by the court a quo, I take the view that that correct approach would be to dismiss the application. Additionally, there being no exceptional circumstances justifying a departure from the established norm that no costs should ordinarily be awarded in constitutional matters, there will be no order as to costs.

Accordingly, the application is dismissed with no order as to costs.

MAKARAU JCC:

GOWORA JCC:

Matika, Gwisai & Partners, applicants’ legal practitioners

Kantor & Immerman, respondent’s legal practitioners