Reward Kangai v Tafadzwa Sakarombe & Ors

The applicant was the Chief Executive Officer of NetOne Cellular (third respondent), whose employment was terminated. The first respondent, a labour officer, made a draft ruling on 23 September 2018 upholding the termination but directing NetOne to pay the applicant certain sums. Under section 93(5a) of the Labour Act, such draft rulings require confirmation by the Labour Court. The first respondent applied for confirmation in March 2019, nine months out of time, and sought condonation in June 2019. She cited leaving employment with the ministry as the reason for delay. NetOne opposed the application, and the first respondent withdrew it in September 2020. Despite the applicant writing numerous letters requesting a replacement labour officer to proceed with confirmation, nothing was done. The applicant launched this constitutional application seeking to declare sections 93(5a) and 93(5b) of the Labour Act unconstitutional and to be granted leave to register the draft ruling as a judgment for execution purposes.

• Whether sections 93(5a) and 93(5b) of the Labour Act are inconsistent with sections 56(1), 56(3), 68(1), 69(3) and 71 of the Constitution of Zimbabwe
• Whether the applicant had legal standing to approach the court under section 85(1) of the Constitution
• Whether the applicant had exhausted or properly pursued alternative non-constitutional remedies
• Whether a draft ruling by a labour officer can be registered as a judgment without confirmation by the Labour Court
• Whether the obligation to submit draft rulings for confirmation rests solely with the particular labour officer who made the ruling or can be undertaken by another labour officer
• Whether a constitutional application is competent where non-constitutional remedies remain available

The constitutional application was dismissed with costs.

A constitutional application will not succeed where: (1) the applicant has failed to pursue or exhaust available non-constitutional remedies; (2) the alleged unconstitutional provision is not the actual source of the applicant's grievance; (3) a declaration of constitutional invalidity would not have practical effect in remedying the applicant's situation. The obligation under section 93(5a) of the Labour Act to submit a draft ruling for confirmation by the Labour Court is not the personal prerogative of the particular labour officer who made the ruling, but can be fulfilled by any properly qualified labour officer. As dominus litis, a litigant has the responsibility to ensure that necessary procedural steps are taken timeously and cannot rely solely on administrative officials to advance their case. Courts should not decide constitutional matters unless it is necessary to do so, and should exercise discretion taking into account the nature and extent of practical effect, the importance of the issue and its complexity.

The court made observations about the quality of drafting of court orders, noting that orders must be complete in themselves with the nature and extent of relief self-evident on the face of the order, without requiring an interpretive process or reference to pleadings. The court commented on the considerable time wasted in court arguments over such technicalities. The court noted information provided by the second respondent that a Labour Amendment Bill 2021 was pending before Cabinet to insert provisions allowing labour officers to issue certificates of settlement with the effect of civil judgments capable of registration, though this was only for informational purposes as the application concerned the law as it presently exists. The court observed that the second respondent had made similar representations about pending amendments in the Makumire matter over three years earlier, yet the amendments had still not been enacted.

This case clarifies important principles regarding constitutional litigation in Zimbabwe: (1) Courts should exercise discretion not to decide constitutional matters unless necessary and where the order would have practical effect on the parties; (2) A litigant must demonstrate actual harm from the operation of the impugned provision and that the court's order would protect their rights; (3) Constitutional remedies should not be pursued where non-constitutional remedies remain available and have not been exhausted or properly pursued; (4) The case provides guidance on interpreting administrative obligations in legislation - where a provision places an administrative obligation on an official, this does not remove the right of litigants themselves to press proceedings; (5) It reinforces the principle from Konjana v Nduna that as dominus litis, a litigant must be vigilant in managing their case and cannot simply wait for administrative processes to unfold; (6) The judgment clarifies that draft rulings by labour officers under section 93(5a) of the Labour Act can be submitted for confirmation by any properly qualified labour officer, not only the one who made the initial ruling; (7) It demonstrates judicial restraint in constitutional matters and the importance of establishing a proper causal link between the alleged constitutional violation and the harm suffered.