Zimbabwe Congress of Trade Unions v Minister of Public Service Labour and Social Welfare and Others

The applicant, a federation of trade unions in Zimbabwe representing 35 affiliate trade unions with approximately 189,000 employee members, brought an urgent application challenging the conduct of various employers (3rd to 8th respondents) who, in response to the third wave of the COVID-19 pandemic, issued internal memos prohibiting unvaccinated employees from reporting for work and continuing to perform their employment obligations. The employers issued their staff notices around 21 July 2021, setting various deadlines (such as 26 and 30 July 2021) for employees to receive vaccinations. The applicant filed the urgent application on 12 August 2021, seeking declarations that such employer conduct violated employees' constitutional rights to human dignity (section 51), personal security (section 52(c)), and fair, safe, just and equitable conditions of work (section 65(1) read with section 65(4)) of the Constitution of Zimbabwe, 2013. The applicant also sought an order directing the 1st and 2nd respondents to enact a statutory instrument within 14 days prohibiting such employer conduct. All respondents except the 8th filed opposition, raising ten preliminary points including urgency, misjoinder, incompetent relief, locus standi, and other procedural improprieties.

• Whether the application met the requirements for urgency to justify jumping the queue ahead of other matters
• Whether the certificate of urgency adequately explained the delay between the cause of action arising (around 21 July 2021) and the filing of the application (12 August 2021)
• Whether the applicant demonstrated irreparable harm and the need to act immediately
• Whether there were alternative remedies available
• Whether the relief sought (direction to enact statutory instrument within 14 days) was appropriate for an urgent application

The matter was struck off the roll of urgent matters with costs against the applicant.

To succeed in having a matter heard on an urgent basis, an applicant must demonstrate in the certificate of urgency and founding affidavit: (1) that the matter cannot wait when the need to act arises; (2) that irreparable prejudice (not merely speculative harm) will result if the matter is not dealt with immediately; (3) prima facie evidence that the applicant treated the matter urgently; (4) a sensible, rational and realistic explanation for any delay in acting from when the cause of action arose; and (5) that there is no satisfactory alternative remedy. The certificate of urgency must specifically contain an explanation for any non-timeous action and must relate to specific dates when the cause of action was complete. Failure to meet these requirements justifies striking the matter off the roll of urgent matters, as granting urgency is an indulgence that allows a party to jump the queue and receive preferential treatment, which must be justified without breach of the principle that similarly situated litigants are entitled to be treated alike.

The court observed that the relief sought—directing the 1st and 2nd respondents to cause the enactment of a statutory instrument within 14 days—involved the executive branch and would be a long drawn-out process, suggesting such an order does not fit well in an urgent application. The court also noted that every other case was equally affected by the restrictions on filing of court process under the Practice Directions, implying that the existence of such restrictions does not create a special basis for urgency for one litigant over others. While the substantive constitutional issues regarding employers prohibiting unvaccinated employees from work and alleged violations of rights to human dignity, personal security, and fair working conditions were raised, the court did not address these on their merits given the finding on urgency, leaving these important questions regarding mandatory workplace vaccination policies in Zimbabwe unresolved.

This case is significant in Zimbabwean jurisprudence for reinforcing the strict requirements for urgent applications, particularly in the context of COVID-19 pandemic-related employment disputes. It demonstrates that constitutional rights claims do not automatically warrant urgent treatment if procedural requirements are not met. The judgment emphasizes that: (1) certificates of urgency must specifically address timing and delay; (2) alleged irreparable harm must be substantiated, not speculative; (3) the availability of alternative remedies negates urgency; (4) using the urgent application route merely as a convenient procedural mechanism is impermissible; and (5) the nature of relief sought must be suitable for urgent determination. While the case was decided on procedural grounds without addressing the substantive constitutional issues regarding mandatory workplace vaccination policies, it remains an important precedent on the threshold requirements for accessing urgent relief in fundamental rights cases.