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Judgment No. CCZ 2/18
Constitutional Application No. CCZ 86/15
The transitional provision expressly provided that s 12 of the Act operated retrospectively.
The constitutionality of the retrospectivity of the transitional provision could not without more be
challenged. To put it simply, unlike criminal liability retrospective civil liability is not
unconstitutional. The Legislature must be presumed to have applied its mind to the possible effects
of the use of retrospectivity to implement the legislation it enacted and determined that the benefits
of its employment outweighed the potential for unfairness.
The argument by Mr Mpofu that the transitional provision is invalid, because it had a
financial obligation imposed on the applicants retrospectively, suggests that the nature of the
obligation is a material and determinant factor in the consideration of the question of the
constitutionality of the retrospective effect of the legislation.
The correct principle is that there is no constitutional provision which forbids the
Legislature, in the exercise of its powers, to impose financial obligations retrospectively by means
of civil legislation. The validity of the retrospective effect of legislation cannot be measured in
terms of the nature of the obligation imposed. In the exercise of its power under s 117(2)(b) of the
Constitution, the Legislature can legislate any subject matter and order retrospective application
of civil legislation as long as doing so is for the purposes of peace, order and good governance of
Zimbabwe. The Legislature is at liberty to decide whether the civil legislation enacted is to have
retrospective application.
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