Nyasha Chizu v Procurement Regulatory Authority of Zimbabwe and Others

The Applicant was employed by the first Respondent (Procurement Regulatory Authority of Zimbabwe) in 2012 and became Chief Executive Officer on 29 August 2018. On 7 July 2020, the first Respondent sent him on forced leave for 30 days commencing 8 July 2020. The forced leave was extended for a further 30 days on at least 2 occasions. On 23 October 2020, the Applicant received a Notice of Termination. The Applicant sought a declaration that section 12(4a)(c) of the Labour Act [Chapter 28.01] is unconstitutional as it is inconsistent with section 68(1) and (2) of the Constitution, and an order setting aside his termination of employment.

• Whether the Applicant had a valid cause of action based on alleged unfair administrative conduct
• Whether the Applicant was properly before the court or should have proceeded under the Administrative Justice Act
• Whether the relief sought was competent and effectual given that the right to terminate employment on notice derives from common law rather than statute
• Whether section 12(4a)(c) of the Labour Act allowing termination of employment on notice is unconstitutional

The application was dismissed with costs ordered against the Applicant.

The binding legal principles established are: (1) Where administrative conduct is challenged, and the Administrative Justice Act exists to give effect to section 68 of the Constitution, an applicant cannot rely directly on sections 68 and 85 of the Constitution unless alleging either the absence of the Administrative Justice Act or that its provisions fail to give effect to constitutional rights under section 68(1); (2) An employer's right to terminate a contract of employment on notice is a common law right, and statutory provisions such as section 12(4a)(c) of the Labour Act merely regulate that common law right rather than create it; (3) A constitutional challenge to employment termination must address the common law source of the termination right if it is to be competent and effective, not merely the statutory regulation of that right.

The court did not make extensive obiter observations. However, implicit in the judgment is the observation that the proper course for challenging allegedly unfair administrative conduct is through the specialized administrative law statute (the Administrative Justice Act) rather than general constitutional applications. The court also noted that the Applicant failed to invite the court to adapt, develop or modify the common law on termination on notice to harmonize it with constitutional norms, suggesting this would have been a more appropriate approach if he wished to challenge the common law foundation of termination rights.

This Zimbabwean High Court case is significant for clarifying the relationship between constitutional remedies and statutory administrative law remedies. It establishes that where legislation (the Administrative Justice Act) exists to give effect to constitutional rights (section 68 on administrative justice), litigants must proceed under that legislation rather than directly invoking constitutional provisions unless they can show the legislation itself is deficient. The case also clarifies that when challenging employment termination on constitutional grounds, litigants must address the common law source of termination rights rather than merely statutory provisions that regulate those rights. This demonstrates the court's approach to the proper channels for administrative law challenges and the distinction between common law rights and their statutory regulation.