Farai Katsande & Zimbabwe Banks and Allied Workers Union v Infrastructure Development Bank of Zimbabwe

The first applicant, Farai Katsande, was employed by the respondent bank as a loans officer from June 2010. In the same month, he was elected Vice President of the Zimbabwe Banks and Allied Workers Union (ZIBAWU - the second applicant). In October 2011, he was promoted to Senior Loans Officer. In May 2012, he was appointed interim President of ZIBAWU. The respondent objected to this appointment, contending that as a managerial employee, Katsande could not represent the interests of non-managerial employees through the trade union. The respondent repeatedly refused to release Katsande to attend trade union functions and meetings both within and outside Zimbabwe. Despite these refusals, Katsande attended trade union business in South Africa (March 2013) and Kenya (September 2013). The respondent preferred misconduct charges against him on both occasions. He was eventually found guilty and dismissed from employment. Katsande referred the dispute to the Labour Court under s 46(b) of the Labour Act to determine whether he was a managerial employee, and also filed a complaint of unfair labour practice with the Ministry of Labour. Both matters remained pending when this constitutional application was filed.

• Whether the application was properly before the Constitutional Court given pending proceedings in the Labour Court
• Whether the doctrine of ripeness and avoidance applied to preclude the Constitutional Court from hearing the matter
• Whether the application raised a constitutional question
• Whether the respondent's conduct violated the first applicant's constitutional right to belong to a trade union under s 65(2) of the Constitution
• Whether the respondent's refusal to allow the first applicant to participate in trade union activities was lawful under s 45(1)(b) of the Labour Act
• Whether a litigant can challenge conduct based on an extant law without challenging the constitutionality of the law itself

The application was struck off the roll with no order as to costs.

A matter is not properly before the Constitutional Court when: (1) the same issue is pending determination in a lower court with jurisdiction over the matter, and the litigant has not exhausted or properly pursued remedies available in that court; (2) the matter does not raise a constitutional question because the applicant challenges conduct authorized by an extant legal provision without challenging the constitutionality of that provision itself. The doctrine of ripeness and avoidance applies to preclude the Constitutional Court from hearing a matter where a remedy is available to the applicant under legislative provisions or on some other basis without having to reach a constitutional question. A litigant may not bypass legislation and rely directly on the Constitution without challenging the constitutional validity of the provision in question. If conduct allegedly violates a fundamental right because it is based on a law, the appropriate action is to challenge the constitutional validity of that law, not the conduct authorized by it.

The court made obiter observations on the interpretation of s 45(1)(b) of the Labour Act, finding that the respondent correctly interpreted the literal meaning of the provision that 'a trade union shall not represent employers' and based its conduct on such understanding. The court noted that the applicants wished the respondent to read into those words a meaning not apparent from a plain reading thereof, and there was no legal basis to do so. The court also affirmed the common law principle (applicable to both criminal and civil proceedings) that a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances where grave injustice might otherwise result or where justice might not by other means be attained (citing Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A)).

This case is significant in Zimbabwean constitutional law for establishing important principles regarding access to the Constitutional Court and the proper procedural route for constitutional challenges. It affirms: (1) the hierarchical court structure must be respected and litigants cannot bypass lower courts that have jurisdiction over a matter; (2) the doctrine of ripeness and avoidance - constitutional courts will not ordinarily consider constitutional questions unless the existence of a remedy depends solely upon it; (3) the principle that superior courts should be slow to intervene in ongoing proceedings in inferior courts except in exceptional circumstances; (4) that conduct based on an extant legal provision cannot be challenged as unconstitutional without challenging the constitutionality of the underlying law itself. The case provides guidance on when matters are 'ripe' for constitutional adjudication and prevents forum shopping and abuse of direct constitutional access.