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Judgment No. CCZ 2/18
Constitutional Application No. CCZ 86/15
The interest in the retrospective application of the principle of payment of what was due to
each employee whose contract was terminated on notice in the form of compensation for loss of
employment according to his or her length of service was the vindication of fairness and justice
the employers ought to have observed in terminating employees’ contracts on notice. Ultimately
the question for determination is whether the retrospective imposition of the financial obligation
on employers who terminated employees’ contracts on notice without payment of compensation
for loss of employment based on length of service was an unfair or irrational exercise of legislative
power. Consideration of all the circumstances of the case shows that it was not.
A system that allows an employer to just wake up one bad day and decide for undisclosed
reasons to terminate a contract of employment by giving notice of intention to do so without any
regard to the need to compensate the employee for loss of employment is fundamentally unfair.
Without retrospective effect, the achievement of the legislative purpose would have been
affected to a significant degree. Not giving retrospective effect to the legislation would have
defeated the legislative purpose. Reasonable exercise of legislative powers of the State cannot be
hampered by pre-enactment occurrences. The applicants failed to show that their rights enshrined
in s 56(1) of the Constitution were violated by the retrospective application of s 12C(2) of the Act.
There was no violation of the equal protection of the right to terminate a contract of
employment on notice enjoyed by the employer and employee as parties to the contract of
employment. By its very nature, the financial obligation imposed on the employer to pay the
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