(1) GREATERMANS STORES (1979) (PRIVATE) LIMITED t/a THOMAS MEIKLES STORES
(2) MEIKLES HOSPITALITY (PRIVATE) LIMITED
(1) THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE
(2) THE ATTORNEY-GENERAL
CONSTITUTIONAL COURT OF ZIMBABWE
MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC & UCHENA JCC
HARARE, SEPTEMBER 21, 2016 & MARCH 28, 2018
T Mpofu, with him G R J Sithole, for the applicants
V Munyoro, for the respondents
This case raises for determination questions of the constitutionality of civil legislation’s retrospective effect.
The applicants are companies duly incorporated in terms of the laws of Zimbabwe. They made an application to the Court in terms of s 85(1)(a) of the Constitution of Zimbabwe Amendment (No. 20) Act (“the Constitution”). They alleged that s 18 of the Labour Amendment Act (No. 5) 2015 (“the transitional provision”), as read with s 12 of the Labour Act [Chapter 28:01] (“the Act”), is unconstitutional. The main allegation was that the transitional provision is unconstitutional because it gives retrospective effect to a new obligation imposed on an employer who terminates a contract of employment on notice to pay the employee whose contract was terminated “the minimum retrenchment package” of not less than one month’s salary or wages for every two years of service as an employee. The obligation was retrospectively imposed on all employers who terminated employees’ contracts on notice on or after 17 July 2015. The applicants alleged in the alternative that the transitional provision violated the following of their fundamental rights: the right to equality (s 56(1)), the right to fair labour practices (s 65(1)), and the right not to be compulsorily deprived of property (s 71(3)).
The Court holds, on the main ground on which the constitutionality of the transitional provision is challenged, that there is no constitutional provision which prohibits the use by the Legislature of the method of retrospectivity to implement civil legislation. On the alternative ground of the challenge to the constitutionality of the transitional provision, the Court holds that the applicants failed to prove the alleged infringement of any of the fundamental rights they relied upon. The retrospective imposition of new financial obligations on the applicants to pay compensation to the employees whose employment they terminated on notice for loss of employment respects their rights enshrined in ss 56(1), 65(1) and 71(3) of the Constitution. The reasons for the decision now follow.