Legal formalism and the new Constitution: An analysis of the recent Zimbabwe Supreme Court decision in Nyamande & Another v Zuva Petroleum

1 Introduction

Today it is a well-known fact that companies have a significant impact on communities and individuals. This impact sometimes may be negative and sometimes positive. Indeed, in some instances, companies exercise significant power over individuals, even having the ability to control their well-being.1 For this and many other well-documented reasons,2 there must be some checks and balances to ensure that workers access social justice and democracy in the workplace.3 The recent decision by the Supreme Court of Zimbabwe in the case of Nyamande & Another v Zuva Petroleum (Nyamande case)4 leaves a lot to be desired. Not only did the Supreme Court leave the majority of employees at the mercy of the employer, but it also destroyed the protection that workers enjoyed for decades under Zimbabwe’s constitutional and labour framework.5

The article seeks to analyse the recent decision by the Supreme Court of Appeal in the Nyamande case. It critiques the formalistic and conservative approach used by the Supreme Court in reaching its decision, as the Court failed to consider the important role now played by the Constitution of the Republic of Zimbabwe. This is mainly because Zimbabwe passed a new Constitution in 2013.6 As point of departure, the case note will briefly discuss the facts of the case and the reasoning and ruling by the Supreme Court. The second part of the article discusses, in some detail, the failure by the Supreme Court to consider a number of fundamental human rights and freedoms now contained in the Constitution.7 The article will outline all the possible rights and principles that the Supreme Court ought to have considered but failed to do. It will also briefly consider the legislative framework governing labour relations in Zimbabwe, particularly the Labour Act of Zimbabwe.8 The aim is to interrogate the correctness of the decision in light of the constitutional and legislative framework governing labour relations in Zimbabwe. Most importantly, the article will interrogate the relationship between employer and employee and demonstrate that, contrary to what the Supreme Court said in its judgment, this relationship is neither equal nor fair. Inherent in this relationship is the unique, unequal bargaining positions of the two parties. This is why we generally have laws to protect this relationship.9 To simply view this relationship as any other contractual relationship is, at the very least, unfair and results in injustice.

In the third and final part of the article I discuss the implications of this decision and provide a few recommendations as to how this situation in which workers in Zimbabwe find themselves can be rectified. I then conclude by arguing that the Supreme Court had failed to act in a manner consistent with the Constitution. In order to avoid a similar situation in the future, the judiciary needs to be constantly conscious of the fact that Zimbabwe now operates in a constitutional dispensation. If the Constitution is to be worth anything more than the piece of paper it is written on, the judiciary ought to ensure that in all cases they adjudicate on, the Constitution is considered. The Constitution should permeate all law, including statutory and common law.10

2 The case

3 A critique of the Supreme Court’s decision

As stated above, the Supreme Court held that after applying the golden rule of statutory interpretation, it could not find any word or words in section 12B of the Labour Act that either expressly or by necessary implication abolished the employer’s common law right to terminate an employment relationship by way of notice. It also reasoned that it was a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without explicitly saying so. The major problem with this reasoning is that it fails to take into account the Constitution of Zimbabwe, which expressly states that the Constitution is ‘the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency’.32 Indeed, the Supreme Court should have gone beyond the arguments advanced by the parties to consider the applicability of the Constitution to the dispute.33 It is submitted that if the Supreme Court wanted, as it stated, an expressly-stated alteration of the common law, then a simple glimpse at the founding provisions of the Constitution34 would have provided it with such. If this did not satisfy the Court, perhaps another glimpse at the Constitution, particularly Chapter 4, which regulates the interpretation of the Constitution, would have provided it with such. In that sense, the Supreme Court should, at the very least, have considered to develop the common law as it is required to do so by the Constitution. Section 46 provides:35

(1) When interpreting this Chapter, a court, tribunal, forum or body -

(a) must give full effect to the rights and freedoms enshrined in this Chapter;

(b) must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3;

(c) must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) must have due regard to all the provisions of this Constitution, in particular the principles and objectives set out in Chapter 2; and

(e) may consider relevant foreign law; in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.

(2) When interpreting an enactment, and when developing the common law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.

However, the Supreme Court did not see it fit to take these sections into account. With respect, this approach was extremely conservative and formalistic in its outlook, and this is reflected in its decision. If this was not the case, then, at the very least, the Supreme Court ought to have interrogated section 12, and this would have led it to the inevitable conclusion that it is inconsistent with the Constitution, particularly section 65(1), which provides that ‘[e]very person has the right to fair and safe labour practices’.36 From a constitutional law perspective, this is where doctrines of cure come in, for instance, reading in or severance, whichever would have been appropriate. The challenge seems to be the fact that the judges of the Supreme Court failed to come to terms with the transformative ethos of the new constitutional dispensation.

Added to this, the Supreme Court’s reasoning and the use of Lord Halsbury’s dictum in the Bank of England case37 of the presumption against reading anything into a statute unless it is irresistibly clear, creates a number of problems in this particular case if it is to be accepted.

The problem with this reasoning is that if one is to accept it, then it renders the Labour Act useless in many instances, because what this means is that an employment contract is just an ordinary contract which should be governed by the common law rules of contract. The dictates of fairness, justice and equity would not apply as they are not explicitly mentioned in the Labour Act. Yet, one of the reasons why the Labour Act was enacted was to balance the relationship between employer and employee so that the relationship can be guided on the principles of fairness.38

It is significant to note that the Labour Act is premised on the basis that the employer and employee relationship is inherently unequal and that the employee must in certain instances be protected against the enormous amount of power that employers usually possess.39 As the Act provides in its Preamble, its purpose is ‘to declare and define the fundamental rights of employees; to give effect to international obligations of the Republic of Zimbabwe as a member of the ILO ...’40

One of these fundamental rights that employees have is not to be unfairly dismissed. Simply giving notice to an employee without any further checks and balances to protect the employee is grossly unfair, unjustifiable and, most importantly, unconstitutional. It is submitted that there must, at the very least, be some checks and balances to ensure that when the employer decides to terminate the relationship, it is done in a fair and just manner. Leaving employees at the mercy of employers may lead to serious injustices and may have dire consequences, some of which the Supreme Court may not have intended or even foreseen. As Magaisa notes,41 it can never be a fair labour practice to dismiss an employee at will. This is especially so under the new constitutional dispensation. There must be some procedurally-accepted way of doing so, and reasons must be provided.42

Another fundamental error that the Supreme Court made was to interpret the termination of employment contracts by way of notice as being different from dismissals. As indicated above,43 the Court stated that section 12(4) deals with the termination of a contract of employment on notice and sets out the limitations as to the periods of notice. It stated that a proper reading of section 12B of the Labour Act would reveal that it only deals with a method of termination of employment known as ‘dismissal’. While dismissal is one method of terminating employment, it is not the only method of terminating an employment relationship. It is only one of several methods of terminating employment. The South African jurisprudence could in this instance have been of some guidance to the Supreme Court, particularly the Labour Relations Act, which provides that dismissal is applicable when an employer terminates a contract of employment with or without notice.44 The Supreme Court here implies that the termination of employment by way of giving notice is not a dismissal but simply a termination of a contract or an agreement. The imperfections of this reasoning cannot be overemphasised. The termination of an employment contract by way of notice is a dismissal, and when an employer uses this form of contract termination, that also constitutes dismissal. 45 The Court seemed to suggest that giving notice to an employee that the contract will be terminated as per the contract is not dismissal and, therefore, will not fall under section 12(4) governing dismissals. This reasoning clearly is inaccurate, improper and misleading.

If this reasoning is to be accepted, section 12B, which regulates dismissals, may also have some problematic provisions. Section 12B lists situations which may be deemed to be unfair dismissals. One of those situations is ‘if the employee terminated the contract of employment with or without notice46 because the employer deliberately made continued employment intolerable for the employee’.47 Clearly, therefore, if it is possible for an employee to terminate employment with notice and it may still be deemed to be unfair dismissal, then giving notice to terminate a contract indeed constitutes dismissal. Consequently, this would mean that section 12B applies to the termination of employment by way of notice and, thus, the common law position is indeed regulated by the Labour Act. It can no longer be enough simply to give notice in all circumstances. This section clearly shows that there may be instances where notice is indeed given and still this constitutes unfair dismissal.

The Labour Act also gives guidelines on retrenchment in section 12C. The section sets out the manner in which this should be done. However, the Supreme Court’s decision also renders this section useless as surely no employer would opt to go through this long, expensive and exhaustive process if they can simply give notice. As Magaisa correctly argues, if the legislature did not intend these rules to be used, why, then, would they have gone to so much trouble of setting out rules against unfair dismissals and retrenchment procedures?48 It is submitted that a correct reading and interpretation of these provisions in the Labour Act would have led the Supreme Court to conclude, at the very least, that the Labour Act regulates employer and employee relationships in instances where the parties decide to terminate the relationship by notice. Even if this is not done in the most explicit way, as the Supreme Court wanted, this alone should have been enough to look at the Labour Act in its entirety, its purposes as well as the sprit in which it was drafted. This would also have meant that issues of fairness, reasonableness and justice would come into play.

The Supreme Court’s reasoning and ruling may lead to many unintended consequences, even if one were to excuse the reasoning of the Court based on the Labour Act, or assume that the Labour Act indeed does not regulate the termination of employment contracts, as was done by the Supreme Court. Can one come to the same conclusion if the constitutional dimension is brought into play? In my view, this would be a difficult argument. Below I outline some of the constitutional and human rights issues that the Supreme Court ignored completely. The aim here is to specifically highlight some sections which the Court could have considered before reaching its decision.

4 The Constitution