A Commentary on the Labour Amendment Bill of 2015

    The Bill in its Memorandum provides in clause 17 as follows:-

    Clause 17
    This clause backdates the application of clause 12 (concerning statutory benefits on termination of employment) to all employees directly or indirectly affected by theSupreme Court judgment titled Nyamande and Donga v Zuva Petroleum (Private) Ltd, delivered on the 17th July,2015.

    This clause clearly indicates that the retrospective application of the Bill is specifically in relation to statutory benefits on termination of employment.

    Our law has always been in favour of prospective application of Acts of parliament and this can be confirmed by the case of Walls v Walls 1996 (2) ZLR 117 (HC) at pages 138-139 where it was held that:-

    I am of the view that the most careful regard should be given to the presumption against retrospectivity…I emphasize that in view of the wide ranging nature of the reform and taking into account the presumption against retrospectivity. I consider that if the Act was intended to be retrospective that would have been clearly stated and not needed to be presumed or decided.

    It appears that a clear understanding of the presumption against retrospectivity is that it might not be able to assist where the words of the statute are clear and unambiguous. To confirm this understanding there is need to look at the decision of the Supreme Court in the case of Nkomo and Anor v Attorney-General and Ors 1993 (2) ZLR 422 (SC)at pages 428-429:-

    It is a cardinal rule in our law that there is a strong presumption against a retrospective construction. Even where a statutory provision is expressly stated to be retrospective in its operation, it is not to be treated as in any way affecting acts and transactions which have already been completed, or which stand to be completed shortly, or in respect of which action is pending or has been instituted but not yet decided, unless such a construction appears clearly from the language used or arises by necessary implication.

    It is therefore clear that the presumption against retrospective application of the law was never meant to be an absolute presumption that is to say, it can be limited by a clear and unambiguous mention by the legislature in a piece of legislation that such piece of legislation shall apply retrospectively, which exactly, is what clause 17 is explaining.