Employers fret over Malaba remarks

Published: 14 July 2017

The business sector has expressed concern over remarks by Chief Justice Luke Malaba over his support for the retrospective application of the law at a time employers have applied against a clause in the amended Labour Act compelling them to compensate workers dismissed as a result of a 2015 Supreme Court ruling, businessdigest has learnt.

Employers in 2015 took government to court over the retrospective application of the law where employers are now obliged to compensate workers they dismissed using last year's July 17 Supreme Court ruling that allowed them to do so on three months' notice without paying a retrenchment package.

In his presentation at a judges' symposium earlier this year, Malaba said that parliament was within its rights to apply the law retrospectively.

"In any event, nothing in the constitution bars the legislature from enacting retrospective legislation," Malaba said at the symposium. "The legislature gets its power from people in terms of section 112(1) of the constitution. Thus one of the main duties of the legislature is to use the law as a tool of social engineering in order to promote harmony in society.

"Therefore, where a situation arises which threatens that harmony, the legislature has an obligation to cure this even if it means enacting retrospective legislation."

Industrialists who spoke to businessdigest expressed concern that Malaba's stance could have an influence on the outcome of the court case which seeks to strike off the particular clause.

"If he had made the remarks after the case over the retrospective application of the law over the 2015 Supreme Court ruling had been resolved we would not have any problems with his remarks," an industrialist said. "We are very worried that the remarks of Chief Justice Malaba could have a persuasive effect on the judge who will handle the case."

Another insider involved in the class action said that government's failure to present their heads of arguments to the court application made in 2015 signals that government has "no intention whatsoever" to respond to the application by employers.

There is widespread concern by the business sector that should employers be obliged to compensate those they dismissed, it will trigger massive job losses and company closures.
- independent

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