“In short, a person who alleges that his or her constitutional right has been infringed must rely on legislation enacted in order to protect that right. He may not rely on the underlying constitutional provisions directly when bringing an action to protect the right unless he or she intends to attack the constitutional validity or efficacy of the legislation itself.”
NEC: National Employment Council.
CBA: Collective Bargaining Agreement.
This matter concerned a referral of a constitutional matter from the Supreme Court to the Constitutional Court. The parties consented to such a referral. At the close of the case, the Constitutional Court made a finding that the referral was defective and proceeded to dismiss the matter. It will be shown in this article that the law pertaining to the collection of NEC levies was left intact as a result of this ruling. This case is also important in indicating the procedure that parties must follow when dealing with a matter that goes to the root of the constitution.
On 9 January 2012 Netone received communication to the effect that a CBA for the Communication and Allied Services Industry had been published. The CBA was binding on all players in the industry, Netone included. Netone had not played any part in the creation of the CBA and neither was it a party to it. It thus took the view that the whole process was a matter of compelling it to be part of an association without its consent. It also took the position that this was a violation of its constitutional rights not to be deprived of property without compensation as it will be made to pay NEC levies as a result of the CBA.
The matter was initially heard by the High Court which declared certain parts of the CBA unconstitutional in so far as they forced Netone to be part of the association against its will. Section 82(1)(a) which provides for the binding nature of Collective Bargaining Agreement to all players in an industry was deemed to be constitutional as it was not violative of any rights of Netone.
Unhappy with the High Court decision, the NEC lodged an appeal with the Supreme Court. With the consent of the parties, the court made a ruling to the effect that the constitutionality of section 82(1)(a) and various sections of the CBA be determined by the Constitutional Court.
Reasons for the judgement
In its reasoning, the court noted that the High Court did not declare section 82(1), (2) and (3) of the Labour Act as invalid for want of compliance of the constitution.[i] The High Court decision in that regard had not been challenged. The question relating to the constitutionality of the said sections were not an issue when the matter was before the Supreme Court. The Constitutional Court thus found it irregular for the parties to refer this section to the Constitutional Court for the court to decide on the constitutionality of the same.
The Constitutional Court noted the issue to do with the constitutionality of the CBA provisions was also not properly referred to it for adjudication. Having found that these sections emanated from the provisions in the labour act which provisions were not declared unconstitutional the court decided that a constitutional matter could not be founded from the provisions in the CBA alone.[ii]
The matter was struck off the roll.
It is submitted that the High Court ruling that had declared certain parts of the CBA for the Communication and Allied Services Industry unconstitutional was defective right from inception. It had left the relevant sections of the Labour Act untouched. The labour act was the basis upon which the CBA had derived its power to order companies to contribute NEC levies as well as to have its terms and conditions binding on a company that wasn’t party to the NEC.
As a result of this ruling, companies will remain bound by the terms and conditions found in the CBAs of their industries whether they were part of the agreement or not. Companies will also continue to pay NEC Levies.
[i] NEC for the communication and allied services industry v Netone cellular (private) limited and the minister of labour and social welfare (CCZ 17/19) at paragraph 21.
[ii] Ibid at paragraph 31.