Erickson Mvududu v Agricultural and Rural Development Authority (ARDA)

The applicant was formerly employed by ARDA as General Manager/Chief Executive Officer. He was placed on special leave on 26 February 2009 and his employment was terminated on 19 May 2009. He successfully challenged the dismissal through arbitration and was awarded reinstatement, but negotiations failed. An arbitrator quantified damages in lieu of reinstatement. The applicant appealed to the Labour Court (partially successful), then to the Supreme Court (minor adjustment in his favour). The matter was remitted to the arbitrator. The applicant raised preliminary issues before the arbitrator, which were dismissed. He appealed this interim order to the Labour Court, which struck off the appeal as improper. He then applied for leave to appeal to the Supreme Court and simultaneously sought referral of constitutional questions to the Constitutional Court. The Labour Court dismissed the referral application as frivolous and vexatious in its judgment LC/H/23/21 dated 26 March 2021. The applicant then filed this application for direct access to the Constitutional Court on 21 April 2021, alleging violations of multiple constitutional rights.

• Whether an application for direct access to the Constitutional Court is properly brought after the Labour Court has dismissed an application for referral as frivolous and vexatious
• Whether the judgment of the Labour Court dismissing the referral application operates as res judicata
• Whether the applicant established that direct access is in the interests of justice
• Whether the applicant demonstrated that his intended application has prospects of success
• Whether the applicant's constitutional rights were violated by the various arbitral awards, Labour Court judgments, and Supreme Court judgment in the labour dispute

The application for direct access to the Constitutional Court was dismissed with no order as to costs. The Attorney-General was removed as a party by consent at the commencement of the hearing.

Where a lower court has properly exercised its judicial mind and determined that an application for referral of a constitutional question under s 85 of the Constitution is frivolous and vexatious, the requesting party is precluded from approaching the Constitutional Court for direct access under s 167(5) to determine the same questions. Such a determination by the lower court operates as res judicata and remains binding until set aside. An applicant for direct access must demonstrate both that direct access is in the interests of justice and that the main application has prospects of success. These requirements cannot be met where a lower court has already determined the constitutional questions raised lack merit.

The Court noted that it is only in rare and special situations, such as where proceedings themselves violate constitutional rights (as in Martin v A-G), that an application under s 85 would be entertained against a refusal for referral. The Court observed that the applicant appeared to be attempting to use constitutional litigation to reopen his entire employment dispute which had been conclusively determined up to the Supreme Court level, rather than raising genuine constitutional issues arising from the proceedings themselves. The Court emphasized the principle that there must be finality to litigation, particularly where matters have been determined by the Supreme Court as the apex court.

This judgment clarifies the important procedural principle that once a lower court has conscientiously determined that an application for referral of a constitutional question is frivolous and vexatious, the applicant is generally precluded from seeking direct access to the Constitutional Court on the same issues under s 85 of the Constitution. The decision reinforces the res judicata principle and the need for finality in litigation. It confirms that the Constitutional Court will not be used as a mechanism to reopen matters already determined to finality by the Supreme Court. The case also emphasizes the requirements for direct access under s 167(5) of the Constitution, particularly the need to demonstrate prospects of success and that direct access is in the interests of justice. It distinguishes exceptional situations (such as in Martin v A-G) where proceedings themselves violate constitutional rights from situations where a party simply disagrees with a substantive determination.