Abstract

GWANYANYA, Manson G. Legal formalism and the new Constitution: An analysis of the recent Zimbabwe Supreme Court decision in Nyamande & Another v Zuva Petroleum. Afr. hum. rights law j. [online]. 2016, vol.16, n.1, pp.283-299. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2016/v16n1a13.

This is an analysis of the recent decision by the Supreme Court of Appeal in the case of Nyamande v Zuva Petroleum. The article critiques the formalistic and conservative approach used by the Supreme Court in reaching its decision, as the Court failed to consider the important role now played by the Constitution of the Republic of Zimbabwe. This is because Zimbabwe passed a new Constitution in 2013. The article briefly discusses the facts of the case, the reasoning and ruling by the Supreme Court and, in some detail, the failure by the Court to consider a number of fundamental human rights and freedoms which are embodied in the Zimbabwean Constitution. The article also outlines some important rights and principles that the Supreme Court ought to have considered but failed to do. It additionally briefly considers the legislative framework governing labour relations in Zimbabwe, particularly the Labour Act of Zimbabwe, with the aim of interrogating the correctness of the decision in light of the constitutional and legislative framework governing labour relations in Zimbabwe. Although the legislature has subsequently rectified the matter, it is still important to reflect on the mistakes made by the Supreme Court in order to prevent it from erring in the same manner in the future. It is important to note that there has to be some level of change regarding the manner in which judges interpret the law, particularly in light of the new Constitution. If the Constitution is to be worth anything more than the piece of paper it is written on, the judiciary ought to ensure that in all cases they adjudicate on the Constitution is considered. The Constitution should permeate all law, including statutory and common law.

Keywords : constitution; dismissal; labour; justice; fairness.

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