Vongai Chiwaridzo v (1) TM Supermarkets (Private) Limited (2) Brenda Garudzo (3) Minister of Public Service, Labour and Social Welfare (4) Minister of Justice, Legal and Parliamentary Affairs (5) Attorney-General N.O.

### Preamble
Judgment No. CCZ 19/20
Const. Application No. CCZ 25/19
DISTRIBUTABLE (18)
---------




DISTRIBUTABLE (18)

VONGAI CHIWARIDZO

v

(1)     TM     SUPERMARKETS     (PRIVATE)     LIMITED

(2)     BRENDA     GARUDZO

(3)     MINISTER     OF     PUBLIC     SERVICE,     LABOUR     AND     SOCIAL     WELFARE

(4)    MINISTER     OF     JUSTICE,     LEGAL     AND     PARLIAMENTARY     AFFAIRS

(5)    ATTORNEY-GENERAL     N.O.

CONSTITUTIONAL COURT OF ZIMBABWE

HARARE, NOVEMBER 14, 2019 & DECEMBER 01, 2020

R Matsikidze, for the applicant

B Mahuni, for the first respondent

T S Musangwa, for the second, third, fourth and fifth respondents

Before: MALABA CJ, In Chambers

AN APPLICATION FOR AN ORDER FOR LEAVE FOR DIRECT ACCESS TO THE CONSTITUTIONAL COURT

This is a chamber application for an order for leave for direct access to the Constitutional Court (“the Court”) in terms of r 21(2) of the Constitutional Court Rules S.I. 61/2016 (“the Rules”).

The applicant intends to place before the Court a matter relating to the constitutional validity of a decision of the Labour Court (“the court a quo”) in a case involving non-constitutional issues. The allegation is that the decision of the court a quo infringed the applicant’s fundamental rights to equal protection of the law and the right to a fair hearing, as enshrined in s 56(1) and s 69(3) of the Constitution respectively.

The Court holds that both the court a quo and the applicant failed to appreciate the position of the law as laid down in Drum City (Pvt) Ltd v Garudzo SC 57/18. As such, no constitutional issue arises and the Court cannot exercise its constitutional jurisdiction over the matter. It is not in the interests of justice to grant leave for direct access to the applicant. The application is without merit and ought to be dismissed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

The applicant was employed by the first respondent as a Finance Director. On 8 September 2010 she was suspended from employment without pay and benefits on allegations of misconduct. A disciplinary hearing was held and she was dismissed from employment. The parties approached a labour officer, but the dispute was not resolved. A certificate of no settlement was issued. On 17 January 2011 the parties approached an arbitrator who made an award in favour of the applicant and ordered that the applicant’s suspension be lifted and that she be reinstated.

On the same day the applicant was suspended again pending disciplinary proceedings. She unsuccessfully challenged the suspension in arbitral proceedings. The appeal to the court a quo was unsuccessful. In December 2013 the applicant appealed against the decision of the court a quo to the Supreme Court. She abandoned the appeal in July 2015.

In September 2015 the applicant lodged a complaint of unfair labour practice with the second respondent for payment of arrear salaries and benefits. At conciliation, the parties failed to settle the dispute and a certificate of no settlement was issued. The first respondent had raised a preliminary point that the second respondent had no jurisdiction to entertain the claim relating to the period extending from February 2011 to February 2013 because it had prescribed in terms of s 94 of the Labour Act [Chapter 28:01] (“the Act”). The second respondent found that the applicant had secured employment elsewhere on 1 March 2013 and that she had ceased to be the first respondent’s employee on that day. As such, it was found that no unfair labour practice could continue beyond the tenure of an employment contract. The point in limine was upheld and the claim dismissed.

The second respondent filed an application for confirmation of her draft ruling in the court a quo. The applicant opposed the application on the basis, inter alia, that the second respondent erred in upholding the point in limine and dismissing her claim.

The application for confirmation was struck off the roll on the basis that it was improperly before the court a quo. The court a quo reasoned that the second respondent sought to inappropriately confirm a draft ruling that had been made in favour of an employer. In reaching that finding, the court a quo relied on the decision in the Drum City (Pvt) Ltd case supra.

On 5 July 2019 the applicant filed the present application. She alleged that s 93(5)(c)(i) and (ii) of the Act is unconstitutional as it discriminates on the basis of status. It was averred that an employee has no recourse if he or she is aggrieved by the decision of a labour officer. This was said to be a violation of s 56(1) of the Constitution. The applicant also alleged that there is no right of access to the courts because once a ruling is made in favour of an employer there is no right of appeal or review to any forum. This was said to be a violation of s 69(3) of the Constitution. It was also alleged that s 93(5a)(a) and (b) of the Act allows a labour officer to be party to the confirmation proceedings and that this violates the right to a fair hearing.

The application was opposed by the first respondent. It argued that the application was a disguised appeal against the decision of the court a quo and an attempt to improperly overturn that court’s decision. It prayed for the dismissal of the application.

The third, the fourth and the fifth respondents also opposed the application. They contended that the applicant sought to appeal against the decision of the court a quo. It was submitted that the applicant ought to have approached the Court in terms of s 167(5)(b) of the Constitution instead of seeking direct access. The argument was also advanced that the applicant had alternative remedies at law, in that she could have appealed against the decision of the second respondent. It was prayed that the application be dismissed with costs.

THE LAW AND THE FACTS

An application for an order for direct access is regulated by the Rules and an applicant has to satisfy all the requirements set out therein. Compliance with the Rules is not a mere formality. As was stated in Liberal Democrats and Ors v The President of the Republic of Zimbabwe E.D. Mnangagwa N.O. and Ors CCZ 7/18 at p 10 of the cyclostyled judgment, “direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the Court”.

Rule 21(3) of the Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:

“(3)	An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out -

(a)	the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b)	the nature of the relief sought and the grounds upon which such relief is based; and

(c)	whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Subrule (2) of r 21 of the Rules requires that an application for an order for direct access should be supported by an affidavit setting out the facts upon which the applicant relies for relief.

The importance of the requirement that an applicant should show that it is in the interests of justice that the application for direct access be granted was explained by Currie and de Waal in “The Bill of Rights Handbook” (6 ed, Juta & Co (Pty) Ltd, Cape Town, 2013) at p 128. The learned authors said:

“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases. … The Constitutional Court is the highest court on all constitutional matters. If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover, … it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CCZ 11/18, the Court stated the factors that have to be taken into account in considering whether an applicant in an application for an order for direct access has shown that it is in the interests of justice that he or she or it be granted the relief sought. The Court held as follows at p 19 of the cyclostyled judgment:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied. The first is that the applicant must state facts or grounds in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction. The second factor is that the applicant must set out in the founding affidavit facts or grounds that show that the main application has prospects of success should direct access be granted.”

It is essential that an applicant demonstrates in his or her or its founding affidavit that it is in the interests of justice that direct access be granted. In the Liberal Democrats case supra, the Court found as follows at p 11 of the cyclostyled judgment:

“It is imperative for an applicant for an order for leave for direct access to indicate that it is in the interests of justice that an order for direct access be granted. Where the affidavit does not satisfy the requirement, the application has no basis. Rule 21(3)(a) requires that the founding affidavit should have regard to the matters that show why the interests of justice would be served if an order for direct access is granted. Mr Chihambakwe correctly pointed out that the applicants’ founding affidavit was wanting in that regard. The applicants did not provide the factual foundation on which the Court could make its decision whether the application, if granted, would be in the interest of justice. There was therefore no compliance with r 21(3)(a).” (the underlining is for emphasis)

Firstly, it was the applicant’s argument that s 93(5)(c)(i) and (ii) of the Act violates s 56(1) of the Constitution, which guarantees equal protection and benefit of the law. It was averred that the law as it stands does not allow a labour officer to act if a ruling is made against an employee. In other words, the applicant lamented the alleged lack of a right of appeal or review once a draft ruling is made in favour of the employer against an employee.

A reading of s 93(5)(c)(ii), in conjunction with s 93(5a)(a), of the Act shows that a labour officer who is seized with a matter, pursuant to issuing a certificate of no settlement, may make a draft ruling which is subject to confirmation upon application to the Labour Court.

In Drum City (Pvt) Ltd v Garudzo supra gwaunza dcj summarised the registration process in the following manner at para 11 of the cyclostyled judgment:

“My interpretation of the two provisions cited suggests the following procedural steps:

a)	the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based;

b)	the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day);

c)	the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling;

d)	should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment;

e)	on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment;

f)  	thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;

g)	upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.”

It is pertinent to note that the ruling that is made by the labour officer is only a draft ruling, as it has no legal force until it has been confirmed and given legal force by the Labour Court. It is only through an application for confirmation of the draft ruling that it can be given legal recognition and consequently enforced.

In Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Darikwa CCZ 6/20, the Court made that point at pp 22-23 of the cyclostyled judgment:

“Parties cannot agree to have a dispute of right dealt with other than in terms of s 93(5)(c) of the Act. The reason is that s 93(5)(c) of the Act places the responsibility of making a ‘draft ruling’ on the labour officer. He or she is required to make a ‘draft ruling’ on the merits of the dispute as gathered from the conciliation process and after issuing a certificate of no settlement. At that stage the matter would no longer be entirely in the hands of the parties whom the labour officer would have been assisting to reach a settlement of the dispute by agreement.

At this stage, the labour officer directs that the employer or anyone who is found guilty of an unfair labour practice must cease or rectify the infringement by paying a certain amount of money. The ruling has no legal force at this stage. An employee cannot enforce a ‘draft ruling’. Both the employer and the employee cannot seek a review or appeal against the ruling at this stage since it will still be a ‘draft’. It is a suspended ruling, which must not be taken as a direction that the money be paid there and then. It is an interlocutory ruling in abeyance and not a final ruling. It is a ruling that is made pending the decision of the court a quo, which may subsequently give final legal effect to the ‘draft ruling’.

The matters in issue remain open, depending on the conduct of the party at whom the ‘draft ruling’ is directed. The court a quo also gives the return date in the event that there is non-compliance with the labour officer’s ruling on the restitution day. If on or before the restitution day the respondent complies with the order, then the matter ends there.

It is only where a labour officer’s ‘draft ruling’ is made in terms of s 93(5)(c) of the Act that the provisions of subss (5a) and (5b) of s 93 of the Act apply. It is these two subsections that provide for the procedures for the institution of proceedings in the Labour Court by a labour officer for the confirmation of a ‘draft ruling’ that would have been made in terms of s 93(5)(c) of the Act. They are the provisions that reflect the rationale for the connection between the process of conciliation, on the one hand, and that of adjudication on the other. The provisions of subss (5a) and (5b) of s 93 of the Act underscore the fact that both processes of conciliation and adjudication aim at delivering a just and fair resolution of the dispute between the parties.” (the underlining is for emphasis)

As regards the justification for direct access to the Court, the applicant stated that “the pronouncement came from the Supreme Court under the case of Garudzo v Drum City supra thus no other can overturn the position. It is only this court which can overturn the decision”.

At pp 24-26 of the cyclostyled judgment, the Court in the Isoquant case supra dispelled any misconception regarding the interpretation of the Drum City (Pvt) Ltd v Garudzo judgment. It said:

“The judgment of the Supreme Court in the Drum City case supra has been used as authority for the proposition that s 93(5)(c) (i) and (ii) violates the right of an employee to equal protection of the law enshrined in s 56(1) of the Constitution. The allegation is that the Supreme Court held in the case that a ‘draft ruling’ in terms of s 93(5)(c) (i) and (ii) cannot be made against an employee.

The passage relied on in the judgment in the Drum City case supra reads:

‘[12]	It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question “must be resolved against any employer or other person in a specific manner …”.’

A ‘draft ruling’ within the meaning of s 93 of the Act can only be made in terms of s 93(5)(c). One would have thought that, once a finding of the fact that a ‘draft ruling’ has been made against an employee, compliance by the labour officer with the procedure of making an application for confirmation of the ‘draft ruling’ would follow as a matter of obligation.

The critical words at the end of s 93(5)(c) of the Act connecting the making of the ‘draft ruling’ and the remedy of application for confirmation are ‘whereupon the provisions of subsections (5a) and (5b) shall apply’. Subsection (5a) then opens with the following provision, which imposes an obligation:

‘(5a)	A labour officer who makes a ruling and order in terms of subsection (5)(c) shall as soon as practicable …’. (the underlining is for emphasis)

A ‘draft ruling’ does not determine the dispute between the parties. Whether made against an employer or employee, it does not confer any right until it is confirmed by the Labour Court. It is not clear why a procedure providing access to the Labour Court should by construction be made available to one party in a dispute of right which has not been resolved and not to the other party.

The best that may be said of s 93(5)(c) of the Act is that there is an element of vagueness lurking behind the use of the words ‘employer or other person’. Statutory ambiguity or vagueness is a matter of interpretation of the statute. It is not a matter of constitutional validity of the statute concerned. The principle which has found expression in s 46(2) of the Constitution is that, when interpreting a statutory provision, a court must promote fundamental human rights. The elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality. A statute must, where possible, be construed in conformity with fundamental human rights.

One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a ‘draft ruling’ has been made against the employer that confirmation proceedings would ensue. The remarks were made as an obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings. At para [30] of the cyclostyled judgment the court said:

‘When all is said and done and in view of the foregoing, it is my finding that there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can therefore not be allowed to stand.’

Section 93(5a) gives the protection and benefit of the law, as the labour officer’s ruling has no force until it is confirmed by the Labour Court. All parties appearing before the labour officer are protected.”

It is apparent from the above analysis that the argument raised by the applicant to the effect that the specific provisions of s 93 of the Act violate s 56(1) of the Constitution because there is no right of appeal or review in instances where a draft ruling is made in favour of an employer must be dismissed. As aforementioned, the draft ruling does not have the force of law until it is confirmed by the Labour Court and therefore no proper appeal or review may lie against it.

The court a quo fell into the same error of misinterpreting Drum City (Pvt) Ltd v Garudzo supra. The question for determination is whether this raises a constitutional issue for determination by the Court. The misinterpretation of the law by a court or litigants does not give rise to a constitutional issue justifying direct access to the Court.

In any event, it ought to be noted that even if a draft ruling could be appealed against, there would be neither a constitutional nor a statutory obligation upon the State to provide for such an appeal.

In McKane v Durston 153 U.S. 684 (1894) the United States Supreme Court held as follows at p 687:

“An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review. A citation of authorities upon the point is unnecessary.”

While the above was said in relation to criminal law, the principle equally applies that, absent constitutional or statutory provisions allowing an appeal or review, a litigant has no right in that regard. This is due to the fact that the right to a judgment from more than one court is a matter of grace, and not a necessary ingredient of justice. (See Cobbledick v United States, 309 U.S. 323 (1940) at 325.)

The creation of a right of appeal is the prerogative of the Legislature. It would not be within the ambit of the powers of the Court to determine when and where such a right should exist.

In National Telephone Co Ltd v His Majesty’s Postmaster-General [1913] 2 KB 614 (CA) it was held as follows at p 621:

“The creation of a right of appeal is an act which requires legislative authority. Neither the inferior nor the superior tribunal nor both can create such a right, it being essentially one of the limitation and of the extension of jurisdiction.”

In Glenister v President of the Republic of South Africa and Others [2011] ZACC 6 the Constitutional Court of South Africa held as follows at para 191:

“Now plainly there are many ways in which the State can fulfil its duty to take positive measures to respect, protect, promote and fulfil the rights in the Bill of Rights. This Court will not be prescriptive as to what measures the State takes, as long as they fall within the range of possible conduct that a reasonable decision-maker in the circumstances may adopt. A range of possible measures is therefore open to the State, all of which will accord with the duty the Constitution imposes, so long as the measures taken are reasonable.” (the underlining is for emphasis)

The applicant also advanced the argument that s 93(5a)(a) and (b) of the Act, which allows the second respondent to be a party to the proceedings for confirmation of the draft ruling and also at the execution stage, violates her right to a fair hearing. The applicant alleged that this is because the second respondent “does not have a substantial interest in the matter”.

It was common cause that the application for confirmation of a draft ruling is made at the instance of the labour officer on behalf of the party who would have prevailed in the proceedings before him or her. Section 93(5a) of the Act requires the labour officer to make an affidavit stating the basis of his or her ruling and to notify the respondent (the employer or any other person) of the intended confirmation proceedings. The role of the labour officer does not extend beyond explaining to the Labour Court why the ruling was made.

In other words, if there is a prima facie basis for making the ruling, the employer or other person, to whom notice of the proceedings is given, would have to show cause before the court a quo why the draft ruling should not be confirmed. The labour officer does not become an interested party in the dispute between the parties. In fact, the applicant correctly stated in her founding affidavit that:

“By making the second respondent the applicant in such proceedings clearly it violates one’s right to a fair hearing. The process is clearly flawed, unconstitutional and unlawful. The second respondent does not have a substantial interest in the matter.” (the underlining is for emphasis)

That statement disposes of the issue. The applicant’s misconception of the nature and scope of the functions of a public officer under a statute cannot found a valid application to a court alleging that the statute infringes a fundamental right.

Consequently, s 93(5a) of the Act does not violate the right to a fair hearing before an independent and impartial forum and the applicant’s argument in this regard ought to be dismissed.

The applicant also made the submission that she has no other remedy and there is no other court which can overturn the decision of the Supreme Court in Drum City v Garudzo supra. Implicit in that submission is the misinterpretation of the law as laid down in that case. As already mentioned above, the applicant’s and the court a quo’s misconstruction of the law does not translate into a constitutional issue.

DISPOSITION

The application is dismissed with no order as to costs.

GOWORA, AJCC:   I concur

HLATSHWAYO, AJCC:   I concur

Matsikidze Attorneys, applicant’s legal practitioners

Scanlen & Holderness, first respondent’s legal practitioners

Civil Division of the Attorney General’s Office, second, third, fourth and fifth respondents’ legal practitioners