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Daniel Nemukuyu Senior Court Reporter
A judge of the Constitutional Court has ruled that the constitutional appeal by two former Zuva Petroleum managers against termination of employment on notice was a legal nullity because the pair had no right of appeal.

Dismissing a chamber application by the two managers — Don Nyamande and Kinstone Donga — for their constitutional appeal to be heard on an urgent basis, Justice Vernanda Ziyambi commented that the main appeal was defective and that it was a nullity in terms of the law.

She ruled that an appeal can only be properly noted at the Constitutional Court when the Supreme Court is alleged to have erred in determining some constitutional issues raised before it.

Technically, the two may pursue their case as a normal appeal but Justice Ziyambi, being one of the judges who may also sit on the nine-member Constitutional Court bench to hear the appeal, found that there was no proper appeal pending.

Justice Ziyambi said:

“Since no constitutional issue was determined by the Supreme Court, no appeal can lie against its decision.

“It follows that the applicants have not established a right of appeal to the Constitutional Court and any appeal filed in this matter by the applicants is a nullity as it conflicts with the provisions of Section 169(1) of the Constitution.”

The judge also ruled that even if the appeal was proper, the two managers failed to convince her that their matter was urgent.

“I must however, note that even if the applicants had established a right of appeal to the Constitutional Court, the application would have been dismissed on the basis that no urgency has been established which would justify the grant of the order sought,” said Justice Ziyambi.

She added that the only ground for urgency raised by the two that several employees have had their contracts of employment immediately terminated on notice after the Supreme Court judgment was not good enough to prove urgency.

“The employees referred to are not parties to this application. I therefore agree with Mr (Innocent) Chagonda that no basis was established for the grant of the order sought by the applicants. Accordingly, the application is dismissed with costs,” the judge ruled.

Thousands of workers who were fired on the basis of the contested Supreme Court judgment were all pinning their hopes on the Zuva Petroleum case.

The employers will now continue without fear to terminate contracts of employment considering that the watershed challenge has been discredited.

Zuva Petroleum’s lawyer Mr Innocent Chagonda said although the judge only dismissed application for urgency, her remarks that the appeal was a nullity were correct.

“The judge has given her view that the appeal is defective and a legal nullity. It is up to the appellants to embrace the advice instead of wasting the court’s time by pursuing a dead case.

“The judge before determining the issue of urgency, firstly required satisfaction that indeed there was a pending appeal. She however, found that there was no proper appeal before the court because the two had no right of appeal at the Constitutional Court,” said Mr Chagonda. On behalf of the two managers, Professor Lovemore Madhuku said Justice Ziyambi only ruled on urgency and that her remarks that the main appeal was a nullity was a mere view.

The judge, Prof Madhuku said, only expressed her view but she did not have jurisdiction to determine the main appeal.

Prof Madhuku said he had instructions to pursue the case as a normal appeal.

“Only a full bench of nine judges has jurisdiction to determine the constitutional appeal. What was before Justice Ziyambi was a procedural issue of whether or not the appeal must be heard ahead of other matters before the Constitutional Court.

“The judge merely expressed her opinion but it is not binding on us. Instead, we will pursue the challenge as a normal appeal,” said Prof Madhuku.

Chief Justice Godfrey Chidyausiku and four others, sitting as the Supreme Court’s full bench, recently dismissed an appeal by Mr Nyamande and Mr Donga on the basis that the common law rule that places the employer and the employee on an equal footing was still valid.

The court held that Section 12B of the Labour Act did not abolish the common law position hence the employer was entitled to terminate employment on notice the same way workers do whenever they leave employment.

That prompted the duo to file an appeal at the Constitutional Court.