Don Nyamande and Kingstone Donga v Zuva Petroleum

The applicants filed a notice of appeal to the Constitutional Court on 23 July 2015 against a judgment of the Supreme Court dismissing their appeal in what originated as a labour dispute. The matter had commenced as a simple labour dispute which was heard at the respondent's workplace, then moved to the Labour Officer, the arbitrator, the Labour Court, and finally the Supreme Court in February 2015. After the Supreme Court dismissed their appeal, the applicants sought to appeal to the Constitutional Court on the basis that their constitutional right to equality and non-discrimination under s 56(1) of the Constitution of Zimbabwe was violated by the Supreme Court's judgment. They applied for the appeal to be set down for hearing on an urgent basis, arguing that thousands of people had lost their jobs since the Supreme Court judgment was delivered.

• Whether the applicants had a right of appeal to the Constitutional Court from a judgment of the Supreme Court under s 167(5)(b) read with s 169(1) of the Constitution of Zimbabwe
• Whether s 167(5)(b) confers a substantive right of appeal or merely regulates procedural rules
• Whether an appeal lies to the Constitutional Court where no constitutional issue was determined by the Supreme Court
• Whether the applicants had established urgency warranting an urgent hearing of the matter

The application for urgent set down of the appeal to the Constitutional Court was dismissed with costs.

Section 167(5)(b) of the Constitution of Zimbabwe is procedural in nature and regulates the rules and manner of approaching the Constitutional Court on appeal from lower courts, but does not confer a substantive right of appeal on a litigant who has no such right. A right of appeal to the Constitutional Court from a Supreme Court judgment can only arise where: (1) an order of constitutional invalidity has been made (s 175(3)), or (2) the Supreme Court has made a decision on a constitutional matter. Where no constitutional issue was determined by the Supreme Court, no appeal lies to the Constitutional Court, and any such appeal is a nullity as it conflicts with s 169(1) of the Constitution, which makes the Supreme Court the final court of appeal except in matters over which the Constitutional Court has jurisdiction.

The court observed that even if the applicants had established a right of appeal to the Constitutional Court, the application would have been dismissed on the basis that no urgency had been established which would justify the grant of the order sought. The only basis for urgency advanced was that several employees had their contracts terminated and the court should take judicial notice of this development, but those employees were not parties to the application. The court noted that the matter had commenced as a simple labour dispute and at no stage during the protracted proceedings which moved from the workplace through various tribunals and courts was there ever any question of the matter being determined on an urgent basis.

This case is significant in Zimbabwean constitutional law as it clarifies the scope and limitations of the right of appeal to the Constitutional Court under the Constitution of Zimbabwe. It establishes that s 167(5)(b) is procedural in nature and does not create a substantive right of appeal where none exists. The judgment reinforces the principle that the Supreme Court is the final court of appeal in Zimbabwe except in matters over which the Constitutional Court has jurisdiction (s 169(1)). It clarifies that appeals to the Constitutional Court from Supreme Court decisions can only arise where: (1) an order of constitutional invalidity has been made under s 175(3), or (2) the Supreme Court has made a decision on a constitutional matter. The case provides important guidance on the proper route for raising constitutional issues, emphasizing that if a constitutional issue arises during proceedings before another court, the proper procedure is to request a referral to the Constitutional Court under s 175(4), rather than attempting to appeal after judgment on grounds that were not decided by the lower court.