Ronald Kandemiri & Ors v First Capital Bank Limited

The applicants were former employees of First Capital Bank Limited (the respondent). In 2019, the respondent transitioned from Barclays Bank systems and underwent IT systems migration, leading to changes in its operational model. On 5 August 2019, management met with the works council to inform them of the intention to retrench staff due to operational changes and the macroeconomic environment, with a follow-up meeting on 9 August 2019. After being retrenched effective 31 August 2019, the applicants filed an unfair labour practice complaint with the National Employment Council for the Banking Industry, alleging they were not consulted prior to the retrenchment decision. The Designated Agent upheld the complaint and ordered reinstatement. The respondent successfully appealed to the Labour Court, and the Supreme Court dismissed the applicants' subsequent appeal. The applicants then sought direct access to the Constitutional Court, alleging that the Supreme Court's interpretation of sections 12C(1) and 25A(5) of the Labour Act violated their constitutional rights to equality and fair labour standards under sections 56(1) and 65(1) of the Constitution.

• Whether the application raised a constitutional matter warranting direct access to the Constitutional Court under section 167(5)(a) of the Constitution
• Whether the Supreme Court's decision in a non-constitutional matter violated the applicants' fundamental rights under sections 56(1) and 65(1) of the Constitution
• Whether the Supreme Court failed to apply a constitutionally infused interpretive lens when interpreting sections 12C(1) and 25A(5) of the Labour Act
• Whether the Supreme Court acted unlawfully or irrationally in its interpretation of the Labour Act provisions
• Whether sections 25A(5), 12C, and 12D of the Labour Act could be read coherently without constitutional interpretation
• Whether a purposive interpretation is synonymous with a constitutional interpretation

The application for direct access was dismissed with no order as to costs.

A matter does not become constitutional merely because a party invites a court to consider it through a constitutional lens. To constitute a constitutional matter warranting Constitutional Court intervention, the relief sought must be obtainable only through the interpretation, protection, or enforcement of the Constitution and not from subsidiary law. Supreme Court decisions in non-constitutional matters are final and can only be reviewed by the Constitutional Court where there is evidence that the Supreme Court violated fundamental rights by failing to act in accordance with the law, thereby producing an irrational decision. Purposive interpretation (considering the underlying purpose of a statutory provision) and constitutional interpretation (engaging provisions of the Constitution) are distinct interpretive approaches that should not be conflated. The golden rule of statutory interpretation requires that words be given their ordinary grammatical meaning unless this leads to absurdity, ambiguity, or repugnance. Where statutory provisions can be read coherently together without ambiguity or absurdity, there is no warrant for departing from their plain meaning through purposive or constitutional interpretation. Parties wishing to challenge the constitutionality of legislation must do so explicitly and directly, not indirectly through requests for alternative interpretive approaches.

The Court observed that ordinarily, where there is no constitutional issue properly before the Court, the appropriate order would be to strike the matter off the roll. However, given the critical failure to demonstrate a prima facie case or plausible prospects of success, the Court deemed it appropriate to dismiss the application rather than strike it off. The Court also noted that there were no exceptional circumstances justifying a departure from the established norm that no costs should ordinarily be awarded in constitutional matters. The Court explained that sections 25A(5)(f), 12C, and 12D of the Labour Act, read together, create a logically tiered framework without conflict: smaller retrenchments fall under the consultation right in section 25A(5), while larger retrenchments (five or more employees within six months) trigger the more detailed statutory regime in sections 12C and 12D, which operate in a complementary and cohesive fashion.

This case clarifies important principles regarding access to the Constitutional Court of Zimbabwe and the limited circumstances under which Supreme Court decisions in non-constitutional matters can be reviewed. It establishes that: (1) the mere allegation that a court decision infringes constitutional rights does not automatically create a constitutional matter; (2) litigants cannot use constitutional arguments as a disguised appeal mechanism to challenge Supreme Court decisions with which they disagree; (3) there is a clear distinction between purposive statutory interpretation and constitutional interpretation, which should not be conflated; (4) Supreme Court decisions are final in non-constitutional matters and can only be reviewed where there is evidence the court failed to act in accordance with law, producing an irrational decision; and (5) parties seeking to challenge the constitutionality of legislation must do so explicitly and directly, not indirectly through requests for purposive interpretation. The case reinforces the finality of Supreme Court decisions and the gatekeeping function of the Constitutional Court in determining what constitutes a constitutional matter warranting its intervention.