EMPLOYMENT http://zimlii.org/ en Mutsengi v Rural Electrification Agency (13 of 2021) [2021] ZWMSVHC 13 (22 February 2021); http://zimlii.org/zw/judgment/masvingo-high-court/2021/13 <span class="field field--name-title field--type-string field--label-hidden">Mutsengi v Rural Electrification Agency (13 of 2021) [2021] ZWMSVHC 13 (22 February 2021);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/1604" hreflang="en">Res Judicata</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/1885" hreflang="en">Jurisdiction</a></div> <div class="field__item"><a href="/taxonomy/term/1981" hreflang="en">Termination of Employment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Sandra Muengwa</span></span> <span class="field field--name-created field--type-created field--label-hidden">Thu, 09/16/2021 - 07:18</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwmsvhc/2021/13/2021-zwmsvhc-13.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19655">2021-zwmsvhc-13.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwmsvhc/2021/13/2021-zwmsvhc-13.pdf" type="application/pdf; length=418250">2021-zwmsvhc-13.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p class="text-align-right">HMA 13-21</p> <p class="text-align-right">HC 551-18</p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">TADIOS MUTSENGI</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">versus</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">RURAL ELECTRIFICATION AGENCY</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HIGH COURT OF ZIMBABWE</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">WAMAMBO J</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">MASVINGO, 4 October 2020 and 22 February, 2021</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="tab-stops:193.95pt"><span style="font-family:Calibri,sans-serif">                                                                 </span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Opposed Application</span></span></span></b></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Applicant </span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">in person</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">T. Pasirayi </span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">for respondent</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WAMAMBO J:          This is an opposed application wherein applicant seeks the following relief:- </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">“<i>IT IS HEREBY ORDERED</i></span></span></span></span></span></span></p> <ol><li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">That applicant was on a contract without limit of time.</span></span></span></i></span></span></span></li> <li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">That the variation of the applicant’s contract of employment is null and void</span></span></span></i></span></span></span></li> <li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">That the fixed term contract be taken to never have existed and that the respondent reinstates the applicant to his employment as if the purported termination of contract never happened.</span></span></i></span></span></span></li> </ol><p style="margin-left:72px; text-align:justify"> </p> <ol start="4"><li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">That there be no order of costs if application is not opposed.”</span></span></i></span></span></span></li> </ol><p style="margin-bottom:13px; margin-left:48px"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Applicant appeared in person. To a certain extent this explains the in elegant expression reflected in the draft order and the manner in which the founding affidavit is written both in form and in content. In the founding affidavit applicant states the following:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">He was employed by respondent in the position of Stores Clerk since January 2010 up to 9 March 2011. The contract of employment was however not reduced to writing. Applicant through an appointment letter dated 9 March 2020 obtained a fixed term contract to run for two years.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">After a year however on 30 April, 2012 the fixed term contract was terminated by respondent.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I say the founding affidavit is not properly formulated for it is a mixture of fact and law.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Sections of the Labour Act [<i>Chapter 28:01</i>] and the Constitution in particular are cited in the body of the founding affidavit. The version sought to be relied on by applicant is neither consistent nor chronological because of the reliance on provisions of the Labour Act and the Constitution mixed with the facts he alleges took place.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">After painstaking efforts to glean the facts and the relief sought I can do no better than to say applicant seeks the relief as more fully expressed at the start of this judgment.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In the opposing affidavit respondent as represented by the Acting Chief Executive Officer states as follows:-</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">This matter is purely a labour matter. Applicant was employed as a Stores Clerk on a fixed term non-renewable two year contract effective from 1 May 2010 to 30 April 2012. The contract was not renewed.  A dispute then arose as applicant alleged that he had a legitimate expectation that his fixed term of employment would be renewed. Respondent disputed this resulting in the matter being determined in respondent’s favour by the Labour Court under LC/MS/14/17 handed down on 10 March, 2017.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Effectively respondent raised that this court has no jurisdiction as the issues raised were dealt with on the merits in LC/MS/14/17. Applicant in thus raising the special plea of <i>res judicata</i>. Applicant is coming through the back door instead of appealing against the Labour Court judgment as provided for in section 43(1) of the Labour Court Rules, 2017.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The first port of call is the judgment of the Labour Court LC/MS/14/17 which forms the basis why respondent claims that this matter is already <i>res judicata</i>.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The special plea of <i>res judicata</i> was raised by respondent as early in the opposing affidavit and developed in the heads of argument and in oral argument.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In Labour case LC/MS/14/17 the appellants in that case are reflected as W. Taudzai and Another. Respondent contends that the other appellant is the applicant in this case. Applicant in their papers and in oral argument did not dispute this point. I take it therefore that applicant was the other appellant in LC/MS/14/17.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In LC/MS/14/17 the matter came up on appeal from the decision of an arbitrator. There were two grounds of appeal expressed by the Honourable Labour Court KACHAMBWA J. as follows:-</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“<i>There are two grounds of appeal. The first ground of appeal is that the arbitrator grossly misdirected himself on the facts by finding that there were no ground for legitimate expectation of renewal of contract.</i></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">------------------------------------------------------------------------------------------------</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The second ground is that the finding that the appellants were fairly dismissed was a gross misdirection and error on the facts and so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind (to the facts) would have arrived at it.”</span></span></i></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The Labour Court at the end of the day dismissed the appeal. The prerequisites of <i>res</i> <i>judicata</i> have been explored in many a case.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">CHIWESHE J.P. in <i>ZAMBEZI Power (Private) Ltd (in liquidation)</i> vs <i>Zimbabwe Revenue</i> <i>Authority &amp; 2 Others</i> HH 670/17 at page 3 summarised the requirements of the special plea of <i>res</i> <i>judicata </i>as follows:- </span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“<i>the requirements for it to be upheld have been laid down in a number of cases. Suffice it to say for that plea to succeed, it must be shown that the action in which judgment was given was between the same parties, with respect to the same subject matter and based on the same ground or complaint as the action under consideration. See Banda and Ors v ZISCO 1990 (1) ZLR 340 (S</i>)”</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">To apply the principles as enunciated above, the following becomes clear.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Applicant and respondent were both parties in LC/MS/14/17. The same subject matter namely the contract of employment as it related to its termination, were under examination in both matters.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">One has to note that the second ground of appeal in LC/MS/14/17 attacked the finding that appellants in that matter were fairly dismissed.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In this case applicant seeks to reverse this finding. The ultimate request in this case as per the draft order is for reinstatement of applicant and a declaratory that the termination never took place.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Effectively I am attracted to respondent’s argument that instead of applicant following the correct appeal procedure on LC/MS/14/17 he chose to approach this court through the back door.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I am, satisfied that in the circumstances the judgment in LC/MS/14/17 was on the subject matter based on the same ground as the matter before me. Notably although raised as a second ground of appeal the said ground </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">was not developed according to the findings of the Labour Court.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In the circumstances although other points <i>in limine</i> have been raised, I will not deal with them as I find that the special plea of <i>res judicata</i> holds water.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I order as follows:-</span></span></span></span></span></span></p> <ol><li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">That the special plea of res judicata is upheld</span></span></span></span></span></span></li> <li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">That the applicant’s claim is dismissed with costs.</span></span></span></span></span></span></li> </ol><p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Gill, Godlonton &amp; Gerrans</span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">, respondent’s legal practitioners</span></span></span></span></span></span></p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-54698157f6b1e761d730066743afd593dd68b95be30d7b2139616ebb31d8de92"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p class="text-align-right">HMA 13-21</p> <p class="text-align-right">HC 551-18</p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">TADIOS MUTSENGI</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">versus</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">RURAL ELECTRIFICATION AGENCY</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HIGH COURT OF ZIMBABWE</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">WAMAMBO J</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">MASVINGO, 4 October 2020 and 22 February, 2021</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="tab-stops:193.95pt"><span style="font-family:Calibri,sans-serif">                                                                 </span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Opposed Application</span></span></span></b></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Applicant </span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">in person</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">T. Pasirayi </span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">for respondent</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WAMAMBO J:          This is an opposed application wherein applicant seeks the following relief:- </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">“<i>IT IS HEREBY ORDERED</i></span></span></span></span></span></span></p> <ol><li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">That applicant was on a contract without limit of time.</span></span></span></i></span></span></span></li> <li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">That the variation of the applicant’s contract of employment is null and void</span></span></span></i></span></span></span></li> <li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">That the fixed term contract be taken to never have existed and that the respondent reinstates the applicant to his employment as if the purported termination of contract never happened.</span></span></i></span></span></span></li> </ol><p style="margin-left:72px; text-align:justify"> </p> <ol start="4"><li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">That there be no order of costs if application is not opposed.”</span></span></i></span></span></span></li> </ol><p style="margin-bottom:13px; margin-left:48px"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Applicant appeared in person. To a certain extent this explains the in elegant expression reflected in the draft order and the manner in which the founding affidavit is written both in form and in content. In the founding affidavit applicant states the following:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">He was employed by respondent in the position of Stores Clerk since January 2010 up to 9 March 2011. The contract of employment was however not reduced to writing. Applicant through an appointment letter dated 9 March 2020 obtained a fixed term contract to run for two years.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">After a year however on 30 April, 2012 the fixed term contract was terminated by respondent.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I say the founding affidavit is not properly formulated for it is a mixture of fact and law.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Sections of the Labour Act [<i>Chapter 28:01</i>] and the Constitution in particular are cited in the body of the founding affidavit. The version sought to be relied on by applicant is neither consistent nor chronological because of the reliance on provisions of the Labour Act and the Constitution mixed with the facts he alleges took place.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">After painstaking efforts to glean the facts and the relief sought I can do no better than to say applicant seeks the relief as more fully expressed at the start of this judgment.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In the opposing affidavit respondent as represented by the Acting Chief Executive Officer states as follows:-</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">This matter is purely a labour matter. Applicant was employed as a Stores Clerk on a fixed term non-renewable two year contract effective from 1 May 2010 to 30 April 2012. The contract was not renewed.  A dispute then arose as applicant alleged that he had a legitimate expectation that his fixed term of employment would be renewed. Respondent disputed this resulting in the matter being determined in respondent’s favour by the Labour Court under LC/MS/14/17 handed down on 10 March, 2017.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Effectively respondent raised that this court has no jurisdiction as the issues raised were dealt with on the merits in LC/MS/14/17. Applicant in thus raising the special plea of <i>res judicata</i>. Applicant is coming through the back door instead of appealing against the Labour Court judgment as provided for in section 43(1) of the Labour Court Rules, 2017.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The first port of call is the judgment of the Labour Court LC/MS/14/17 which forms the basis why respondent claims that this matter is already <i>res judicata</i>.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The special plea of <i>res judicata</i> was raised by respondent as early in the opposing affidavit and developed in the heads of argument and in oral argument.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In Labour case LC/MS/14/17 the appellants in that case are reflected as W. Taudzai and Another. Respondent contends that the other appellant is the applicant in this case. Applicant in their papers and in oral argument did not dispute this point. I take it therefore that applicant was the other appellant in LC/MS/14/17.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In LC/MS/14/17 the matter came up on appeal from the decision of an arbitrator. There were two grounds of appeal expressed by the Honourable Labour Court KACHAMBWA J. as follows:-</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“<i>There are two grounds of appeal. The first ground of appeal is that the arbitrator grossly misdirected himself on the facts by finding that there were no ground for legitimate expectation of renewal of contract.</i></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">------------------------------------------------------------------------------------------------</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The second ground is that the finding that the appellants were fairly dismissed was a gross misdirection and error on the facts and so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind (to the facts) would have arrived at it.”</span></span></i></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The Labour Court at the end of the day dismissed the appeal. The prerequisites of <i>res</i> <i>judicata</i> have been explored in many a case.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">CHIWESHE J.P. in <i>ZAMBEZI Power (Private) Ltd (in liquidation)</i> vs <i>Zimbabwe Revenue</i> <i>Authority &amp; 2 Others</i> HH 670/17 at page 3 summarised the requirements of the special plea of <i>res</i> <i>judicata </i>as follows:- </span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“<i>the requirements for it to be upheld have been laid down in a number of cases. Suffice it to say for that plea to succeed, it must be shown that the action in which judgment was given was between the same parties, with respect to the same subject matter and based on the same ground or complaint as the action under consideration. See Banda and Ors v ZISCO 1990 (1) ZLR 340 (S</i>)”</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">To apply the principles as enunciated above, the following becomes clear.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Applicant and respondent were both parties in LC/MS/14/17. The same subject matter namely the contract of employment as it related to its termination, were under examination in both matters.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">One has to note that the second ground of appeal in LC/MS/14/17 attacked the finding that appellants in that matter were fairly dismissed.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In this case applicant seeks to reverse this finding. The ultimate request in this case as per the draft order is for reinstatement of applicant and a declaratory that the termination never took place.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Effectively I am attracted to respondent’s argument that instead of applicant following the correct appeal procedure on LC/MS/14/17 he chose to approach this court through the back door.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I am, satisfied that in the circumstances the judgment in LC/MS/14/17 was on the subject matter based on the same ground as the matter before me. Notably although raised as a second ground of appeal the said ground </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">was not developed according to the findings of the Labour Court.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In the circumstances although other points <i>in limine</i> have been raised, I will not deal with them as I find that the special plea of <i>res judicata</i> holds water.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I order as follows:-</span></span></span></span></span></span></p> <ol><li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">That the special plea of res judicata is upheld</span></span></span></span></span></span></li> <li style="margin-left:32px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">That the applicant’s claim is dismissed with costs.</span></span></span></span></span></span></li> </ol><p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Gill, Godlonton &amp; Gerrans</span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">, respondent’s legal practitioners</span></span></span></span></span></span></p></span></div></div> </div> </div> Thu, 16 Sep 2021 07:18:05 +0000 Sandra Muengwa 11185 at http://zimlii.org Mafunda v ZERA (SC 9 of 2016, Civil Appeal SC 134 of 2015) [2016] ZWSC 9 (04 March 2016); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2016/9 <span class="field field--name-title field--type-string field--label-hidden">Mafunda v ZERA (SC 9 of 2016, Civil Appeal SC 134 of 2015) [2016] ZWSC 9 (04 March 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2325" hreflang="x-default">Conditions of employment</a></div> <div class="field__item"><a href="/taxonomy/term/2390" hreflang="x-default">Remuneration</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2016/9/2016-zwsc-9.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41143">2016-zwsc-9.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2016/9/2016-zwsc-9.pdf" type="application/pdf; length=414968">2016-zwsc-9.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p>                                             </p> <p><strong>DISTRIBUTABLE</strong>  <strong>(6)</strong></p> <p>                                                  </p> <p><strong>PETER     MAFUNDA</strong></p> <p><strong>vs</strong></p> <p><strong>ZIMBABWE     ENERGY     REGULATORY     AUTHORITY</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, MAVANGIRA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, OCTOBER 26, 2015 &amp; MARCH 4, 2016</strong></p> <p> </p> <p><em>S. Hashiti</em>, for the Appellant</p> <p><em>E. Matinenga</em>, for the Respondent.</p> <p> </p> <p><strong>UCHENA JA:</strong>           The appellant Peter Mufunda is a Legal Advisor in the Ministry of Energy and Power Development. The respondent Zimbabwe Energy Regulatory Authority is a statutory successor of the Zimbabwe Electricity Regulatory Commission.</p> <p> </p> <p>The common cause facts on which the dispute between the parties arose are as follows. The appellant, an employee of the Ministry of Energy and Power Development was, on 20 October 2009, by appointment assigned to perform duties for the Zimbabwe Electricity Regulatory Commission     (ZERC), whose functions were taken over by The Zimbabwe Energy Regulatory Authority (ZERA).  The appellant played a role in the establishment of ZERA. According to the assigning memorandum he was to play the leading role. ZERA appreciated his role to the extent that when the Ministry sought to withdraw his services to it by memorandum dated 17 November 2011, it asked the Ministry to allow him to continue in that role till it appointed its own Chief Executive officer. The Ministry agreed and extended his assignment to 28 February 2012.</p> <p>After assuming duty at (ZERC) and thereafter (ZERA) the appellant continued to perform his normal duties as Legal Advisor for the Ministry. He did not sign a contract of employment with either ZERC or ZERA, but was paid an allowance of US$500.00 per month after he protested against none payment after serving ZERC for some time. He had demanded that he be paid a salary but the Secretary of the Ministry of Energy after initially telling him rather brutally and uncharitably, to “learn to work for nothing” authorised him to arrange with the respondent that he be paid the US$500.00 per month allowance which the Minister had authorised. The appellant accepted the payments on a without prejudice basis. The parties failed to reach an agreement leading to the appellant referring the dispute over salary and benefits to the Ministry of Labour and Social Services. On 2 September 2013 a certificate of no settlement was issued and the dispute was referred to arbitration. The Arbitrator found that the parties had entered into a valid contractual relationship. He ordered the parties to quantify the award failing which they could revert back to him for quantification.</p> <p> </p> <p>The respondent noted an appeal to the Labour Court which found in its favour leading to the appellant noting this appeal.</p> <p> </p> <p>In his two grounds of appeal the appellant alleged the following against the decision of the Labour Court:</p> <ol><li>The court <em>a quo</em> erred and misdirected itself in finding that there was no contractual relationship between the appellant and respondent contrary to the dictates of s 14 of the Public Service Regulations SI 1/2000 as read with ss 2 and 12 of the Labour Act (Chapter 28;01).</li> <li>The court further erred and misdirected itself in holding that there was no legal basis for the award of arrear salaries and benefits due to appellant from respondent.<br />   </li> </ol><p>In finding for the respondent the Labour Court on pages 54 to 55 of the record said:</p> <p>“The Oxford Dictionary defines secondment as a temporary transfer. In other words an employee on secondment remains the employee of the original employer (seconder) during the period of secondment. The Industrial Court of Malaysia in the case of Bank Simpanan Nasional Finance Bhd &amp; anor v Omar Hashim (2002) 1 ILR 272 (Award NO. 1013 of 2005) explained the meaning of the term “secondment” as follows:</p> <p>“The ordinary dictionary meaning of secondment as a temporary transfer has on the face of it the connotation that the employee is subject to recall by his employer. So he is not a permanent employee of the other.”</p> <p>The same court in Come Services Asia Pacific Region, Miri v Grame Ashley Power (1987) 2 ILR 34 reinforced the idea of a temporary transfer stating:</p> <p>“<strong>Therefore so long as the contract is not terminated, a new contract is not made and the employee continues to be in the employment of the original employer. Even if the employer orders the employee to do certain work for another person, the employee still continues to be in his employment.</strong> The only thing that happens in such cases is that the employee carries out the orders of the master hence he has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the period he had hired his services, but that is because of his agreement with his real employer. However, that does not have the effect of transferring the service of the employee to the other employer. The hirer may exercise control and direction in the doing of the thing for which he has hired the employee; or even the manner in which it is to be done. But if the employee fails to carry out his direction he cannot dismiss him and can only complain to the actual employer. The right of dismissal is vested in the employer.</p> <p> </p> <p>I am persuaded that the above quotation aptly describes the Respondent’s position. <strong>In my view the Respondent’s secondment was informal as no fully detailed secondment agreement was put in place as envisaged by s 14 (2) of S.I 1/2000. Consequently the respondent continued to receive his remuneration as a member of the Public Service.</strong> <strong>If the appellant was to pay for respondent’s services, in my view, a detailed agreement would have been put in place.</strong> In the case of <em>Dairibord Zimbabwe Limited v Lazarus Muyambi</em> SC 22/2002 the terms and conditions of the secondment were set out in a contract of assignment entered into by the appellant and the respondent. Such a contract is missing <em>in casu</em>. <strong>I am not persuaded that bit can be implied from the circumstances of this case.” </strong>(emphasis added)</p> <p>The court <em>a quo</em> therefore found that (a) the appellant was not released by his employer, (b) he did not enter into any contract of employment with ZERC nor ZERA, (c) the contract of secondment cannot be inferred from the conduct of the parties and the provisions of ss 2 and 12 of the Labour Act.</p> <p> </p> <p>The issue for determination by this court is whether or not the court <em>a quo</em> correctly summarised the law and applied it to the facts of this case. Mr <em>Hashiti</em> for the appellant submitted that there was a contract of employment between the appellant and respondent. He submitted that the provisions of s 14 of the Public Service Regulations S.I 1/2000 as read with s 12 of the Labour Act [<em>Chapter 28;01</em>], and the conduct of the parties confirms that there was an agreement.</p> <p> </p> <p>Mr <em>Matinenga</em> for the respondent submitted that there is no valid appeal before the court as there is no appeal on a point of Law. He further submitted that if the appeal is valid there was no contract of employment between the appellant and the respondent.</p> <p> </p> <p>Mr <em>Matinenga</em>’s submission that there is no appeal on a point of Law has no merit. The appeal is against the court <em>a quo</em>’s interpretation of s 14 of the Public Service Regulations SI 1/2000 and ss 2 and 12 (2) of the Labour Act. The appellant’s first ground of appeal refers to the court <em>a quo</em>’s failure to properly interpret the dictates of s 14 of the Public Service Regulations as read with ss 2 and 12 of the Labour Act. That clearly raises a point of law.</p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations S.I. 1/2000, provides for the secondment of civil servants as follows;   </p> <p>“(1) A member may at any time with his consent and at the invitation of the Head of the Ministry or Commission, be seconded by the Commission for a period not exceeding three years to a post in an approved service.</p> <p>     (2)The terms and conditions of service of a member while on secondment shall, subject to any policy directive issued by the Commission, be governed by contract between the member and the approved service concerned.”</p> <p> </p> <p> </p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations requires an employee who is seconded to enter into two contracts. The first contract is with his employer who will offer to second him to an approved service provider, which offer he can accept by giving his consent to the secondment. The secondment to be agreed upon should be “to a post in an approved service”.  The second contract is for the employee’s conditions of service which the employee enters into with the approved service provider to which his employer will have released him for secondment.</p> <p> </p> <p>If the agreement between the seconding employer and the employee to be seconded is for the employee to be released and seconded to a post in the approved service provider, then that institution and the employee must enter into an agreement which will govern the seconded employee’s conditions of service. The need for the second agreement depends on the agreement between the seconding employer and his employee. If for example the seconding employer wants his employee to continue working for it but also wants the employee to render services to a specified institution at its expense there will be no need for an agreement between the service provider and the employee. This is what the court <em>a quo</em> attempted to explain in the passage quoted above but unfortunately without fully analysing the provisions of s 14.</p> <p> </p> <p>The court <em>a quo</em>’s decision is correct though it should have adequately analysed s 14 and assessed the facts of this case against it starting from the intention of the seconding employer. The intention of the seconding employer is clearly explained in its memorandum dated 20 October 2009 on page 159 of the record, in which it explained the reason and nature of the secondment in issue. The memorandum reads;</p> <p>“To      Honourable Minister</p> <p>From    Permanent Secretary</p> <p>            Date      20 October 2009</p> <p> </p> <p><strong>Appointment of Ministry Officials To Run The Affairs Of Zimbabwe Electricity Regulatory Commission (ZERC)</strong></p> <p>   As you may recall ZERC was dissolved in order to pave way for the establishment of an all-encompassing Energy Regulatory Commission after the passage of the Energy Act by Parliament of Zimbabwe.</p> <p>   As you may also <strong>recall Eng. M. C Munodawafa was appointed to oversee the operations of ZERC.</strong></p> <p>   Eng M C Munodawafa has since been appointed Chief Executive Officer of the Zambezi River Authority. <strong>Therefore there is need to appoint persons to execute the functions of ZERC until the establishment of the Energy Regulatory Commission.</strong></p> <p>   I recommend that Mr P Mufunda and Mrs G Ngoma, Legal Advisor and Deputy Director for Policy and Planning respectively <strong>be appointed to administer ZERC.</strong> Mr P Mufunda shall take the leading role.”</p> <p> </p> <p> </p> <p>The Minister through a hand written endorsement to the Permanent Secretary’s letter agreed with the appellant’s appointment. He said:</p> <p>“<strong>The Chief Legal Officer may take the proposed role.</strong> While Mrs Ngoma is a good candidate she is a board member of ZESA so please substitute her with another member so that there is no direct conflict in roles” (emphasis added).</p> <p>  </p> <p> </p> <p>                        The Minister’s directive was implemented through a memorandum dated 21 October 2009 through which Mr Hugh Sagonda was appointed in place of Mrs Ngoma.</p> <p> </p> <p>It should be noted from these memoranda that the Ministry appointed its officers to carry out roles at ZERC. It did not second them in terms of s 14 (1) and (2) of SI 1/2000.  It did not second them to posts within ZERC. An appointment to a role by one’s own employer is not a secondment to a post in the service provider. In terms of s 14 (1) the role of the employer is to release the employee for appointment into a specified post by the approved service.</p> <p> </p> <p>The memorandum talks of the appointment of Ministry officials to run the affairs of ZERC. This means the persons being appointed would remain Ministry officials and were to run ZERC’s affairs in that capacity. This is confirmed by reference to M. C. Munodawafa having previously been appointed to oversee the operations of ZERC and the appellant being appointed to administer ZERC. These terms are not consistent with one being seconded in the capacity of an employee of the approved service. If that was the employer’s intention the post to be occupied in the approved service would have been specified. The employees were therefore not released by the Ministry. In the case of a secondment in terms of s 14 the approved service and not the original employer assigns duties to the employee. In this case it is the Ministry which assigned duties to the appellant. When the original employer assigns duties to be performed for the approved service it will not have released the employee. It will be assigning duties to its employee for the benefit of a third party.</p> <p> </p> <p>The determinant facts are that the employer did not release the appellant from his position within it. It did not mention a post to which he was to be appointed within ZERC. It clearly states that Ministry officials were to run the affairs of ZERC. The court <em>a quo</em> was therefore correct that what happened was an informal secondment because a real secondment can only take place when the employer and employee’s agreement is one in which the employer releases the employee to enable him to  go and take up employment in a specified post for a period not exceeding that stipulated in s 14.</p> <p> </p> <p>This explains why the appellant continued to perform duties for the Ministry and receiving his salary from the Public Service Commission.</p> <p> </p> <p>In view of my finding that the employer did not intend to release the appellant to take up a post in (ZERC) or (ZERA), Mr <em>Hashiti</em>’s submissions on the effect of the conduct of the parties and the meaning of ss 2 and 12 of the Labour Act does not warrant consideration. The parties’ conduct and the interpretation of ss 2 and 12 of the Labour Act cannot change the clear intention of the employer to assign the appellant a role as opposed to seconding him. They cannot change the appellant’s agreement with his employer from that of an informal secondment to a secondment in terms of s 14 of SI 1/2000.</p> <p> </p> <p>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement must, therefore, be dismissed.</p> <p> </p> <p>There is however an injustice caused by the Permanent Secretary. He backdated the allowance approved by the Minister to January 2010, when the appellant had been performing duties at ZERC since 20 October 2009. The appellant is entitled to the US$500.00 per month allowance for that period. There is no reason why he should not be paid for that period. The appellant raised this issue in the court <em>a quo</em> and in this Court. The respondent did not give any reasonable explanation for excluding that period from the authorised payment of allowances. The court <em>a quo</em> did not address its mind to this issue. Its decision in this regard must therefore be set aside.</p> <p> </p> <p>Both parties succeeded in part. Each party will therefore bear its own costs.</p> <p>In the result the decision of the court <em>a quo</em> is set aside and is substituted by the following:</p> <p>It is ordered that:</p> <ol><li>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement between him and the respondent be and is hereby dismissed.</li> <li>The appellant’s appeal against none payment of the US$500.00 per month allowance for the period 20 October to 31 December 2009 succeeds.</li> <li>The respondent is ordered to pay the appellant the US$500.00 per month allowance for the period 20 October 2009 to 31 December 2009.</li> <li>Each party shall bear its own costs</li> </ol><p><strong>HLATSHWAYO JA</strong>                        I agree</p> <p><strong>MAVANGIRA JA</strong>                I agree</p> <p><em>Messrs Mtombeni Mukwesha &amp; Muzavazi,</em> Appellant’s Legal Practitioners.</p> <p><em>Messrs Kantor &amp; Immerman,</em> Respondents Legal Practitioners.   </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-2ca077aaca2bf2e76606b43040dc74c801298972bad3439052e463a227565da1"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p>                                             </p> <p><strong>DISTRIBUTABLE</strong>  <strong>(6)</strong></p> <p>                                                  </p> <p><strong>PETER     MAFUNDA</strong></p> <p><strong>vs</strong></p> <p><strong>ZIMBABWE     ENERGY     REGULATORY     AUTHORITY</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, MAVANGIRA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, OCTOBER 26, 2015 &amp; MARCH 4, 2016</strong></p> <p> </p> <p><em>S. Hashiti</em>, for the Appellant</p> <p><em>E. Matinenga</em>, for the Respondent.</p> <p> </p> <p><strong>UCHENA JA:</strong>           The appellant Peter Mufunda is a Legal Advisor in the Ministry of Energy and Power Development. The respondent Zimbabwe Energy Regulatory Authority is a statutory successor of the Zimbabwe Electricity Regulatory Commission.</p> <p> </p> <p>The common cause facts on which the dispute between the parties arose are as follows. The appellant, an employee of the Ministry of Energy and Power Development was, on 20 October 2009, by appointment assigned to perform duties for the Zimbabwe Electricity Regulatory Commission     (ZERC), whose functions were taken over by The Zimbabwe Energy Regulatory Authority (ZERA).  The appellant played a role in the establishment of ZERA. According to the assigning memorandum he was to play the leading role. ZERA appreciated his role to the extent that when the Ministry sought to withdraw his services to it by memorandum dated 17 November 2011, it asked the Ministry to allow him to continue in that role till it appointed its own Chief Executive officer. The Ministry agreed and extended his assignment to 28 February 2012.</p> <p>After assuming duty at (ZERC) and thereafter (ZERA) the appellant continued to perform his normal duties as Legal Advisor for the Ministry. He did not sign a contract of employment with either ZERC or ZERA, but was paid an allowance of US$500.00 per month after he protested against none payment after serving ZERC for some time. He had demanded that he be paid a salary but the Secretary of the Ministry of Energy after initially telling him rather brutally and uncharitably, to “learn to work for nothing” authorised him to arrange with the respondent that he be paid the US$500.00 per month allowance which the Minister had authorised. The appellant accepted the payments on a without prejudice basis. The parties failed to reach an agreement leading to the appellant referring the dispute over salary and benefits to the Ministry of Labour and Social Services. On 2 September 2013 a certificate of no settlement was issued and the dispute was referred to arbitration. The Arbitrator found that the parties had entered into a valid contractual relationship. He ordered the parties to quantify the award failing which they could revert back to him for quantification.</p> <p> </p> <p>The respondent noted an appeal to the Labour Court which found in its favour leading to the appellant noting this appeal.</p> <p> </p> <p>In his two grounds of appeal the appellant alleged the following against the decision of the Labour Court:</p> <ol><li>The court <em>a quo</em> erred and misdirected itself in finding that there was no contractual relationship between the appellant and respondent contrary to the dictates of s 14 of the Public Service Regulations SI 1/2000 as read with ss 2 and 12 of the Labour Act (Chapter 28;01).</li> <li>The court further erred and misdirected itself in holding that there was no legal basis for the award of arrear salaries and benefits due to appellant from respondent.<br />   </li> </ol><p>In finding for the respondent the Labour Court on pages 54 to 55 of the record said:</p> <p>“The Oxford Dictionary defines secondment as a temporary transfer. In other words an employee on secondment remains the employee of the original employer (seconder) during the period of secondment. The Industrial Court of Malaysia in the case of Bank Simpanan Nasional Finance Bhd &amp; anor v Omar Hashim (2002) 1 ILR 272 (Award NO. 1013 of 2005) explained the meaning of the term “secondment” as follows:</p> <p>“The ordinary dictionary meaning of secondment as a temporary transfer has on the face of it the connotation that the employee is subject to recall by his employer. So he is not a permanent employee of the other.”</p> <p>The same court in Come Services Asia Pacific Region, Miri v Grame Ashley Power (1987) 2 ILR 34 reinforced the idea of a temporary transfer stating:</p> <p>“<strong>Therefore so long as the contract is not terminated, a new contract is not made and the employee continues to be in the employment of the original employer. Even if the employer orders the employee to do certain work for another person, the employee still continues to be in his employment.</strong> The only thing that happens in such cases is that the employee carries out the orders of the master hence he has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the period he had hired his services, but that is because of his agreement with his real employer. However, that does not have the effect of transferring the service of the employee to the other employer. The hirer may exercise control and direction in the doing of the thing for which he has hired the employee; or even the manner in which it is to be done. But if the employee fails to carry out his direction he cannot dismiss him and can only complain to the actual employer. The right of dismissal is vested in the employer.</p> <p> </p> <p>I am persuaded that the above quotation aptly describes the Respondent’s position. <strong>In my view the Respondent’s secondment was informal as no fully detailed secondment agreement was put in place as envisaged by s 14 (2) of S.I 1/2000. Consequently the respondent continued to receive his remuneration as a member of the Public Service.</strong> <strong>If the appellant was to pay for respondent’s services, in my view, a detailed agreement would have been put in place.</strong> In the case of <em>Dairibord Zimbabwe Limited v Lazarus Muyambi</em> SC 22/2002 the terms and conditions of the secondment were set out in a contract of assignment entered into by the appellant and the respondent. Such a contract is missing <em>in casu</em>. <strong>I am not persuaded that bit can be implied from the circumstances of this case.” </strong>(emphasis added)</p> <p>The court <em>a quo</em> therefore found that (a) the appellant was not released by his employer, (b) he did not enter into any contract of employment with ZERC nor ZERA, (c) the contract of secondment cannot be inferred from the conduct of the parties and the provisions of ss 2 and 12 of the Labour Act.</p> <p> </p> <p>The issue for determination by this court is whether or not the court <em>a quo</em> correctly summarised the law and applied it to the facts of this case. Mr <em>Hashiti</em> for the appellant submitted that there was a contract of employment between the appellant and respondent. He submitted that the provisions of s 14 of the Public Service Regulations S.I 1/2000 as read with s 12 of the Labour Act [<em>Chapter 28;01</em>], and the conduct of the parties confirms that there was an agreement.</p> <p> </p> <p>Mr <em>Matinenga</em> for the respondent submitted that there is no valid appeal before the court as there is no appeal on a point of Law. He further submitted that if the appeal is valid there was no contract of employment between the appellant and the respondent.</p> <p> </p> <p>Mr <em>Matinenga</em>’s submission that there is no appeal on a point of Law has no merit. The appeal is against the court <em>a quo</em>’s interpretation of s 14 of the Public Service Regulations SI 1/2000 and ss 2 and 12 (2) of the Labour Act. The appellant’s first ground of appeal refers to the court <em>a quo</em>’s failure to properly interpret the dictates of s 14 of the Public Service Regulations as read with ss 2 and 12 of the Labour Act. That clearly raises a point of law.</p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations S.I. 1/2000, provides for the secondment of civil servants as follows;   </p> <p>“(1) A member may at any time with his consent and at the invitation of the Head of the Ministry or Commission, be seconded by the Commission for a period not exceeding three years to a post in an approved service.</p> <p>     (2)The terms and conditions of service of a member while on secondment shall, subject to any policy directive issued by the Commission, be governed by contract between the member and the approved service concerned.”</p> <p> </p> <p> </p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations requires an employee who is seconded to enter into two contracts. The first contract is with his employer who will offer to second him to an approved service provider, which offer he can accept by giving his consent to the secondment. The secondment to be agreed upon should be “to a post in an approved service”.  The second contract is for the employee’s conditions of service which the employee enters into with the approved service provider to which his employer will have released him for secondment.</p> <p> </p> <p>If the agreement between the seconding employer and the employee to be seconded is for the employee to be released and seconded to a post in the approved service provider, then that institution and the employee must enter into an agreement which will govern the seconded employee’s conditions of service. The need for the second agreement depends on the agreement between the seconding employer and his employee. If for example the seconding employer wants his employee to continue working for it but also wants the employee to render services to a specified institution at its expense there will be no need for an agreement between the service provider and the employee. This is what the court <em>a quo</em> attempted to explain in the passage quoted above but unfortunately without fully analysing the provisions of s 14.</p> <p> </p> <p>The court <em>a quo</em>’s decision is correct though it should have adequately analysed s 14 and assessed the facts of this case against it starting from the intention of the seconding employer. The intention of the seconding employer is clearly explained in its memorandum dated 20 October 2009 on page 159 of the record, in which it explained the reason and nature of the secondment in issue. The memorandum reads;</p> <p>“To      Honourable Minister</p> <p>From    Permanent Secretary</p> <p>            Date      20 October 2009</p> <p> </p> <p><strong>Appointment of Ministry Officials To Run The Affairs Of Zimbabwe Electricity Regulatory Commission (ZERC)</strong></p> <p>   As you may recall ZERC was dissolved in order to pave way for the establishment of an all-encompassing Energy Regulatory Commission after the passage of the Energy Act by Parliament of Zimbabwe.</p> <p>   As you may also <strong>recall Eng. M. C Munodawafa was appointed to oversee the operations of ZERC.</strong></p> <p>   Eng M C Munodawafa has since been appointed Chief Executive Officer of the Zambezi River Authority. <strong>Therefore there is need to appoint persons to execute the functions of ZERC until the establishment of the Energy Regulatory Commission.</strong></p> <p>   I recommend that Mr P Mufunda and Mrs G Ngoma, Legal Advisor and Deputy Director for Policy and Planning respectively <strong>be appointed to administer ZERC.</strong> Mr P Mufunda shall take the leading role.”</p> <p> </p> <p> </p> <p>The Minister through a hand written endorsement to the Permanent Secretary’s letter agreed with the appellant’s appointment. He said:</p> <p>“<strong>The Chief Legal Officer may take the proposed role.</strong> While Mrs Ngoma is a good candidate she is a board member of ZESA so please substitute her with another member so that there is no direct conflict in roles” (emphasis added).</p> <p>  </p> <p> </p> <p>                        The Minister’s directive was implemented through a memorandum dated 21 October 2009 through which Mr Hugh Sagonda was appointed in place of Mrs Ngoma.</p> <p> </p> <p>It should be noted from these memoranda that the Ministry appointed its officers to carry out roles at ZERC. It did not second them in terms of s 14 (1) and (2) of SI 1/2000.  It did not second them to posts within ZERC. An appointment to a role by one’s own employer is not a secondment to a post in the service provider. In terms of s 14 (1) the role of the employer is to release the employee for appointment into a specified post by the approved service.</p> <p> </p> <p>The memorandum talks of the appointment of Ministry officials to run the affairs of ZERC. This means the persons being appointed would remain Ministry officials and were to run ZERC’s affairs in that capacity. This is confirmed by reference to M. C. Munodawafa having previously been appointed to oversee the operations of ZERC and the appellant being appointed to administer ZERC. These terms are not consistent with one being seconded in the capacity of an employee of the approved service. If that was the employer’s intention the post to be occupied in the approved service would have been specified. The employees were therefore not released by the Ministry. In the case of a secondment in terms of s 14 the approved service and not the original employer assigns duties to the employee. In this case it is the Ministry which assigned duties to the appellant. When the original employer assigns duties to be performed for the approved service it will not have released the employee. It will be assigning duties to its employee for the benefit of a third party.</p> <p> </p> <p>The determinant facts are that the employer did not release the appellant from his position within it. It did not mention a post to which he was to be appointed within ZERC. It clearly states that Ministry officials were to run the affairs of ZERC. The court <em>a quo</em> was therefore correct that what happened was an informal secondment because a real secondment can only take place when the employer and employee’s agreement is one in which the employer releases the employee to enable him to  go and take up employment in a specified post for a period not exceeding that stipulated in s 14.</p> <p> </p> <p>This explains why the appellant continued to perform duties for the Ministry and receiving his salary from the Public Service Commission.</p> <p> </p> <p>In view of my finding that the employer did not intend to release the appellant to take up a post in (ZERC) or (ZERA), Mr <em>Hashiti</em>’s submissions on the effect of the conduct of the parties and the meaning of ss 2 and 12 of the Labour Act does not warrant consideration. The parties’ conduct and the interpretation of ss 2 and 12 of the Labour Act cannot change the clear intention of the employer to assign the appellant a role as opposed to seconding him. They cannot change the appellant’s agreement with his employer from that of an informal secondment to a secondment in terms of s 14 of SI 1/2000.</p> <p> </p> <p>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement must, therefore, be dismissed.</p> <p> </p> <p>There is however an injustice caused by the Permanent Secretary. He backdated the allowance approved by the Minister to January 2010, when the appellant had been performing duties at ZERC since 20 October 2009. The appellant is entitled to the US$500.00 per month allowance for that period. There is no reason why he should not be paid for that period. The appellant raised this issue in the court <em>a quo</em> and in this Court. The respondent did not give any reasonable explanation for excluding that period from the authorised payment of allowances. The court <em>a quo</em> did not address its mind to this issue. Its decision in this regard must therefore be set aside.</p> <p> </p> <p>Both parties succeeded in part. Each party will therefore bear its own costs.</p> <p>In the result the decision of the court <em>a quo</em> is set aside and is substituted by the following:</p> <p>It is ordered that:</p> <ol><li>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement between him and the respondent be and is hereby dismissed.</li> <li>The appellant’s appeal against none payment of the US$500.00 per month allowance for the period 20 October to 31 December 2009 succeeds.</li> <li>The respondent is ordered to pay the appellant the US$500.00 per month allowance for the period 20 October 2009 to 31 December 2009.</li> <li>Each party shall bear its own costs</li> </ol><p><strong>HLATSHWAYO JA</strong>                        I agree</p> <p><strong>MAVANGIRA JA</strong>                I agree</p> <p><em>Messrs Mtombeni Mukwesha &amp; Muzavazi,</em> Appellant’s Legal Practitioners.</p> <p><em>Messrs Kantor &amp; Immerman,</em> Respondents Legal Practitioners.   </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:32 +0000 Anonymous 10095 at http://zimlii.org University of Zimbabwe v Jirira & Another (SC 12 of 2018, Chamber Application SC 179 of 2015) [2016] ZWSC 12 (15 June 2016); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2016/12 <span class="field field--name-title field--type-string field--label-hidden">University of Zimbabwe v Jirira &amp; Another (SC 12 of 2018, Chamber Application SC 179 of 2015) [2016] ZWSC 12 (15 June 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/1459" hreflang="en">Arbitration</a></div> <div class="field__item"><a href="/taxonomy/term/1451" hreflang="en">Arbitration appeal</a></div> <div class="field__item"><a href="/taxonomy/term/2124" hreflang="x-default">Award</a></div> <div class="field__item"><a href="/taxonomy/term/2260" hreflang="x-default">enforcement</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2016/12/2016-zwsc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30688">2016-zwsc-12.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2016/12/2016-zwsc-12.pdf" type="application/pdf; length=127574">2016-zwsc-12.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>UNIVERSITY     OF     ZIMBABWE</strong></p> <p><strong>v</strong></p> <ol><li><strong>KWANELE N.JIRIRA(2)LOUIS MASUKO</strong></li> </ol><p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA</strong></p> <p><strong>HARARE, 15 JUNE 2016</strong></p> <p><em>R. H. Goba, </em>for the applicant</p> <p><em>K. E. Kadzere, </em>for the respondents</p> <p><strong>IN CHAMBERS</strong></p> <p><strong>BHUNU JA:</strong>       This is a chamber application for leave to appeal against the judgment of the Labour Court in terms of r 5 (2) of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975.</p> <p>The applicant is a tertiary educational institution incorporated as such under the University of Zimbabwe Act [<em>Chapter 25:16</em>]. Both respondents are its former workers who were employed as research fellows at its Institute of Development Studies. They were dismissed from employment by the disciplinary Tribunal on allegations of misconduct. They are alleged to have wilfully refused to obey a lawful order to be redeployed from the Institute of Development Studies offices to the University campus.</p> <p>Aggrieved by their dismissal from employment they approached the Labour officer complaining of unfair dismissal. The Labour Officer in turn referred their grievance for arbitration. The arbitrator ruled in their favour and made an award of reinstatement and in the alternative damages in<em> lieu</em> of reinstatement.</p> <p>Dissatisfied with the Arbitration award, the applicant appealed to the Labour Court without success. Unhappy with the decision of the Labour court, the applicant sought leave to appeal to this court. On 5 April 2013 the Labour Court granted the applicant leave to appeal to this Court.</p> <p>The applicant did not however reinstate the respondent as ordered by both the Arbitrator and the Labour Court. As the result the respondents approached the Arbitrator for quantification of damages in<em> lieu</em> of reinstatement. The Arbitrator assessed damages in the amounts of US$156 852.13 and US$134 362. 00, respectively.</p> <p>Aggrieved by the quantification award, the applicant once again appealed against that award to the Labour Court. Despite the appeal, the respondents proceeded to register the award with the High Court for enforcement. A writ of execution and attachment of the applicant’s property was subsequently issued. The applicant made an urgent application for stay of execution without success. It then successfully appealed to this court for stay of execution pending appeal under judgment number SC 6/12.</p> <p>The applicant’s appeal against the quantification award was subsequently dismissed by the Labour Court. Its complaint is that CHIVIZHE J granted the application for dismissal of the appeal without a formal hearing of the appeal. They allege that despite numerous requests the honourable judge failed to provide the applicant with reasons for judgment resulting in the lapse of time stipulated of the intended appeal.</p> <p>                        It therefore became necessary to apply for condonation and extension of time to file an application for leave to apply to this Court. Both parties filed heads of argument. The applicant now alleges that while they were waiting for the set down date of hearing they were surprised to receive a written judgment by HOVE J dismissing the application for leave to appeal to this Court. It is not clear to me but it appears that the matter was subsequently placed before the same judge who then properly heard the application and dismissed the applicant’s claim under judgment LCH/H/472/2011 at page 56 of the record of proceedings. It is this judgment which prompted this application.</p> <p>In terms s 92F (3) of the Labour Act [<em>Chapter 28:01</em>], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court. When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal he does not treat the application as an appeal against the refusal to grant leave by the court <em>a quo</em>. He simply decides the matter on the merits as if it was a fresh application before him/her. For that reason while he may consider the criticisms levelled against the judge in the court <em>a quo</em>, these are not overriding considerations because he makes his own independent fresh determination on the basis of the papers and arguments placed before him/her.</p> <p>I now turn to consider the application for leave to appeal to this Court on the merits.</p> <p>An application for leave to appeal to this Court is firmly grounded on the applicant’s prospects of success on appeal.  In terms of s 92F of the Act, appeals from the Labour Court only lie to this Court on a point of law. In that regard the first question for consideration is whether the applicant’s grounds of appeal raise a point of law.</p> <p>The grounds of appeal essentially raises the question whether the applicant was subjected to a fair trial when CHIVIZHE J issued an order under case number LC/H/145/11 without giving reasons for the order which it has branded a judgment.</p> <p>The order is dated 31 October 2012 and it reads:</p> <p>“IN THE LABOUR COURT OF ZIMBABWE</p> <p>LC/H/145/11</p> <p>In the matter between:-</p> <p><strong>KWANELE JIRIRA &amp; ANOTHER                                                 Applicants</strong></p> <p><strong>Vs</strong></p> <p><strong>UNIVERSITY OF ZIMBABWE                                          Respondents</strong></p> <p>Before the Honourable B T Chivizhe, President</p> <p><strong>(IN CHAMBERS)</strong></p> <p>Whereupon after reading documents filed of record</p> <p>IT IS ORDERED THAT</p> <p>The application for dismissal of appeal in terms of Rule 19 (3) (a) of the Labour Court Rules be and is hereby granted.”</p> <p>The above order is clearly not a judgment but an order given by the learned judge <em>a quo</em> sitting in chambers. This is so because it does not bear a judgment number or reasons for judgment. It cites no legal representatives signifying that none were heard although both parties had legal representation. This is clearly a default judgment. It is not correct for the applicant to say in its founding affidavit that the learned judge did not give reasons for its judgment. This is because in the same breath it confesses that the judgment was given pursuant to an application for dismissal of its appeal because of its failure to file heads of argument timeously.</p> <p>It is therefore plain that the applicant’s appeal was dismissed for want of compliance with the Rules. Nowhere in its grounds of appeal does the applicant allege that it filed its heads of argument timeously. </p> <p>In my view, the applicant having failed to file its heads of argument within the prescribed time limit, it ought to have applied for rescission of judgment in terms of s 92C. The section confers a wide discretion on a judge of the labour Court to rescind his own decisions including those given in the absence of a party or in error. The section provides as follows:</p> <p>“(1) Subject to this section, the Labour Court may, on application, rescind or vary any determination or order—</p> <ul><li>which it made in the absence of the party against whom it was made;</li> <li> </li> </ul><p>(<em>b</em>) which the Labour Court is satisfied is void or was obtained by fraud or a mistake common to the parties; or</p> <ul><li>in order to correct any patent error.</li> </ul><p>(2) The Labour Court shall not exercise the powers conferred by subsection (1)–</p> <ul><li>except upon notice to all the parties affected by the determination or order concerned; or</li> <li>in respect of any determination or order which is the subject of a pending appeal or review.</li> </ul><p>(3) Where an application has been made to the Labour Court to rescind or vary any determination or order in terms of subsection (1), the Labour Court may direct that—</p> <ul><li>the determination or order shall be carried into execution; or</li> <li>execution of the determination or order shall be suspended pending the decision upon the application;</li> </ul><p>upon such terms as the Labour Court may fix as to security for the due performance of the determination or order or any variation thereof”</p> <p>That application ought to have been made simultaneously with an application for condonation and extension of time within which to file its heads of argument in terms of r 26 which provides that:</p> <p>“At any time before or during the hearing of a matter a President or the Court may—</p> <p>(<em>a</em>) direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the President or Court is satisfied that the departure is required in the interests</p> <p>of justice, fairness and equity;</p> <p>(<em>b</em>) give such directions as to procedure in respect of any matter not expressly provided for in these rules as</p> <p>appear to the President of the Court to be just, expedient and equitable”</p> <p>In terms of r 33 the applicant had 30 days within which to make the above applications for relief in the court <em>a quo.</em> From the date it became aware of the so called judgment. This it not do. The so called judgment it seeks to impugn is dated 31 October 2012. It only approached this court for relief about two and a half years later on 15 March 2015. That delay in approaching this Court is lengthy and inordinate. It cannot be the kind of delay occasioned by a party who has the serious intention to prosecute its appeal.</p> <p>It appears to me that this Application was lodged as an afterthought, simply to circumvent the court <em>a quo</em> and throw spanners into the pending execution. The applicant could no longer approach the court <em>a quo</em> for relief as it was now woefully out of time. Approaching this Court was an ingenuous way of evading the natural consequences of its inordinate delay in approaching the court <em>a quo</em> for relief timeously.</p> <p>The applicant has not proffered any explanation for the inordinate delay of more than two and a half years before approaching this Court if it was sincere in its belief that the relief it seeks resides in this Court. In any case the applicant ought to have exhausted its domestic remedies before approaching this Court for relief. For the foregoing reasons I come to the conclusion that there is absolutely no merit in this Application it is accordingly ordered that the application be and is hereby dismissed with costs.</p> <p><em>Ziumbe &amp; partners, </em>applicant’s legal practitioners</p> <p><em>Hungwe &amp; Mandevere, </em>respondents’ legal practitioners</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-786b2289d64fe03bf0cad6c2303f592447b250ed4afe628cfecd6aba397c0152"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>UNIVERSITY     OF     ZIMBABWE</strong></p> <p><strong>v</strong></p> <ol><li><strong>KWANELE N.JIRIRA(2)LOUIS MASUKO</strong></li> </ol><p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA</strong></p> <p><strong>HARARE, 15 JUNE 2016</strong></p> <p><em>R. H. Goba, </em>for the applicant</p> <p><em>K. E. Kadzere, </em>for the respondents</p> <p><strong>IN CHAMBERS</strong></p> <p><strong>BHUNU JA:</strong>       This is a chamber application for leave to appeal against the judgment of the Labour Court in terms of r 5 (2) of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975.</p> <p>The applicant is a tertiary educational institution incorporated as such under the University of Zimbabwe Act [<em>Chapter 25:16</em>]. Both respondents are its former workers who were employed as research fellows at its Institute of Development Studies. They were dismissed from employment by the disciplinary Tribunal on allegations of misconduct. They are alleged to have wilfully refused to obey a lawful order to be redeployed from the Institute of Development Studies offices to the University campus.</p> <p>Aggrieved by their dismissal from employment they approached the Labour officer complaining of unfair dismissal. The Labour Officer in turn referred their grievance for arbitration. The arbitrator ruled in their favour and made an award of reinstatement and in the alternative damages in<em> lieu</em> of reinstatement.</p> <p>Dissatisfied with the Arbitration award, the applicant appealed to the Labour Court without success. Unhappy with the decision of the Labour court, the applicant sought leave to appeal to this court. On 5 April 2013 the Labour Court granted the applicant leave to appeal to this Court.</p> <p>The applicant did not however reinstate the respondent as ordered by both the Arbitrator and the Labour Court. As the result the respondents approached the Arbitrator for quantification of damages in<em> lieu</em> of reinstatement. The Arbitrator assessed damages in the amounts of US$156 852.13 and US$134 362. 00, respectively.</p> <p>Aggrieved by the quantification award, the applicant once again appealed against that award to the Labour Court. Despite the appeal, the respondents proceeded to register the award with the High Court for enforcement. A writ of execution and attachment of the applicant’s property was subsequently issued. The applicant made an urgent application for stay of execution without success. It then successfully appealed to this court for stay of execution pending appeal under judgment number SC 6/12.</p> <p>The applicant’s appeal against the quantification award was subsequently dismissed by the Labour Court. Its complaint is that CHIVIZHE J granted the application for dismissal of the appeal without a formal hearing of the appeal. They allege that despite numerous requests the honourable judge failed to provide the applicant with reasons for judgment resulting in the lapse of time stipulated of the intended appeal.</p> <p>                        It therefore became necessary to apply for condonation and extension of time to file an application for leave to apply to this Court. Both parties filed heads of argument. The applicant now alleges that while they were waiting for the set down date of hearing they were surprised to receive a written judgment by HOVE J dismissing the application for leave to appeal to this Court. It is not clear to me but it appears that the matter was subsequently placed before the same judge who then properly heard the application and dismissed the applicant’s claim under judgment LCH/H/472/2011 at page 56 of the record of proceedings. It is this judgment which prompted this application.</p> <p>In terms s 92F (3) of the Labour Act [<em>Chapter 28:01</em>], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court. When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal he does not treat the application as an appeal against the refusal to grant leave by the court <em>a quo</em>. He simply decides the matter on the merits as if it was a fresh application before him/her. For that reason while he may consider the criticisms levelled against the judge in the court <em>a quo</em>, these are not overriding considerations because he makes his own independent fresh determination on the basis of the papers and arguments placed before him/her.</p> <p>I now turn to consider the application for leave to appeal to this Court on the merits.</p> <p>An application for leave to appeal to this Court is firmly grounded on the applicant’s prospects of success on appeal.  In terms of s 92F of the Act, appeals from the Labour Court only lie to this Court on a point of law. In that regard the first question for consideration is whether the applicant’s grounds of appeal raise a point of law.</p> <p>The grounds of appeal essentially raises the question whether the applicant was subjected to a fair trial when CHIVIZHE J issued an order under case number LC/H/145/11 without giving reasons for the order which it has branded a judgment.</p> <p>The order is dated 31 October 2012 and it reads:</p> <p>“IN THE LABOUR COURT OF ZIMBABWE</p> <p>LC/H/145/11</p> <p>In the matter between:-</p> <p><strong>KWANELE JIRIRA &amp; ANOTHER                                                 Applicants</strong></p> <p><strong>Vs</strong></p> <p><strong>UNIVERSITY OF ZIMBABWE                                          Respondents</strong></p> <p>Before the Honourable B T Chivizhe, President</p> <p><strong>(IN CHAMBERS)</strong></p> <p>Whereupon after reading documents filed of record</p> <p>IT IS ORDERED THAT</p> <p>The application for dismissal of appeal in terms of Rule 19 (3) (a) of the Labour Court Rules be and is hereby granted.”</p> <p>The above order is clearly not a judgment but an order given by the learned judge <em>a quo</em> sitting in chambers. This is so because it does not bear a judgment number or reasons for judgment. It cites no legal representatives signifying that none were heard although both parties had legal representation. This is clearly a default judgment. It is not correct for the applicant to say in its founding affidavit that the learned judge did not give reasons for its judgment. This is because in the same breath it confesses that the judgment was given pursuant to an application for dismissal of its appeal because of its failure to file heads of argument timeously.</p> <p>It is therefore plain that the applicant’s appeal was dismissed for want of compliance with the Rules. Nowhere in its grounds of appeal does the applicant allege that it filed its heads of argument timeously. </p> <p>In my view, the applicant having failed to file its heads of argument within the prescribed time limit, it ought to have applied for rescission of judgment in terms of s 92C. The section confers a wide discretion on a judge of the labour Court to rescind his own decisions including those given in the absence of a party or in error. The section provides as follows:</p> <p>“(1) Subject to this section, the Labour Court may, on application, rescind or vary any determination or order—</p> <ul><li>which it made in the absence of the party against whom it was made;</li> <li> </li> </ul><p>(<em>b</em>) which the Labour Court is satisfied is void or was obtained by fraud or a mistake common to the parties; or</p> <ul><li>in order to correct any patent error.</li> </ul><p>(2) The Labour Court shall not exercise the powers conferred by subsection (1)–</p> <ul><li>except upon notice to all the parties affected by the determination or order concerned; or</li> <li>in respect of any determination or order which is the subject of a pending appeal or review.</li> </ul><p>(3) Where an application has been made to the Labour Court to rescind or vary any determination or order in terms of subsection (1), the Labour Court may direct that—</p> <ul><li>the determination or order shall be carried into execution; or</li> <li>execution of the determination or order shall be suspended pending the decision upon the application;</li> </ul><p>upon such terms as the Labour Court may fix as to security for the due performance of the determination or order or any variation thereof”</p> <p>That application ought to have been made simultaneously with an application for condonation and extension of time within which to file its heads of argument in terms of r 26 which provides that:</p> <p>“At any time before or during the hearing of a matter a President or the Court may—</p> <p>(<em>a</em>) direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the President or Court is satisfied that the departure is required in the interests</p> <p>of justice, fairness and equity;</p> <p>(<em>b</em>) give such directions as to procedure in respect of any matter not expressly provided for in these rules as</p> <p>appear to the President of the Court to be just, expedient and equitable”</p> <p>In terms of r 33 the applicant had 30 days within which to make the above applications for relief in the court <em>a quo.</em> From the date it became aware of the so called judgment. This it not do. The so called judgment it seeks to impugn is dated 31 October 2012. It only approached this court for relief about two and a half years later on 15 March 2015. That delay in approaching this Court is lengthy and inordinate. It cannot be the kind of delay occasioned by a party who has the serious intention to prosecute its appeal.</p> <p>It appears to me that this Application was lodged as an afterthought, simply to circumvent the court <em>a quo</em> and throw spanners into the pending execution. The applicant could no longer approach the court <em>a quo</em> for relief as it was now woefully out of time. Approaching this Court was an ingenuous way of evading the natural consequences of its inordinate delay in approaching the court <em>a quo</em> for relief timeously.</p> <p>The applicant has not proffered any explanation for the inordinate delay of more than two and a half years before approaching this Court if it was sincere in its belief that the relief it seeks resides in this Court. In any case the applicant ought to have exhausted its domestic remedies before approaching this Court for relief. For the foregoing reasons I come to the conclusion that there is absolutely no merit in this Application it is accordingly ordered that the application be and is hereby dismissed with costs.</p> <p><em>Ziumbe &amp; partners, </em>applicant’s legal practitioners</p> <p><em>Hungwe &amp; Mandevere, </em>respondents’ legal practitioners</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:22 +0000 Anonymous 10089 at http://zimlii.org Mbangani v OK Zimbabwe (SC 9 of 2018, Civil Appeal SC 445 of 2015) [2017] ZWSC 9 (17 July 2017); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2017/9 <span class="field field--name-title field--type-string field--label-hidden">Mbangani v OK Zimbabwe (SC 9 of 2018, Civil Appeal SC 445 of 2015) [2017] ZWSC 9 (17 July 2017);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/1628" hreflang="en">Default Judgment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2017/9/2017-zwsc-9.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26628">2017-zwsc-9.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2017/9/2017-zwsc-9.pdf" type="application/pdf; length=99950">2017-zwsc-9.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>  DISTRIBUTABLE             (8)</strong></p> <p><strong>WEBSTER     MBANGANI</strong></p> <p><strong>v</strong></p> <p><strong>OK     ZIMBABWE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GOWORA JA &amp; HLATSHWAYO JA</strong></p> <p><strong>HARARE, </strong>JULY 17, 2017</p> <p>No appearance for the appellant</p> <p>Mrs<em> Matsika</em>, for the respondent</p> <p><strong>GWAUNZA JA</strong>:     This is an appeal against the decision of the Labour Court upholding the appellant’s dismissal from his employment with the respondent.</p> <p>On 17 July 2017, the court dismissed the appeal with costs. The appellant was in default but was aggrieved by such dismissal and wrote to the Registrar requesting reasons for the order. These are they:</p> <p>The brief facts of this case are as follows:</p> <p>The appellant was employed as a Branch Manager by the respondent. Sometime in 2009, he was charged with having ordered 180 ‘fancy’ loaves of bread on 11 September 2008 and another 180 loaves on 12 September 2008, contrary to standing orders disallowing bulk purchases. This was a measure implemented by the employer at the height of bread shortages to avoid employees supplying the “black market” with bread, thereby prejudicing the formal market. The appellant was also charged for allegedly cashing 50 personal cheques with a total value of US$254 015.00 and generally failing to diligently execute his duties.</p> <p>The disciplinary committee before which the appellant appeared decided that the penalty for the bulk purchases was dismissal, and proceeded to impose it on the appellant. In relation to the charge of encashment of cheques the appellant was acquitted and a final written warning was imposed for failure to discharge his duties diligently. Therefore, the effective penalty imposed by the disciplinary committee was dismissal. We were satisfied on a reading of the papers before us that no misdirection could be attributed to the disciplinary committee in reaching the decisions it did.</p> <p>Having unsuccessfully gone through the relevant appeals processes both internally and before the Labour Court, the appellant filed this appeal. The appeal was initially set down for hearing on 13 June 2017 following proper service of the notice of hearing on him on 8 May 2017. The service was effected at No. 2208 Manyuchi Road, New Malborough on the appellant’s daughter, Samantha V. Mbangani. However, the matter could not be heard on the set down date.</p> <p>The matter was then set down for hearing on 17 July 2017. The notice of hearing was again served at the same address, this time on Winnet Maniko, who identified herself as a tenant at the address. This was on 23 June 2017.  On the date of hearing, the appellant was in default and after having sight of the Sheriff’s return of service dated 23 June 2017 the court found that service of the notice of hearing had been properly effected.  The address at which service was effected was the appellant’s given address for service in terms of the record and no notice of change of the address had been filed. Further, the appellant’s name was called out from outside the courtroom by the Registrar and no response was received.</p> <p>In these circumstances, the court was satisfied that the appellant was in default, hence its dismissal of the matter.</p> <p><strong>GOWORA JA:                                  </strong>I agree</p> <p><strong>HLATSHWAYO JA:</strong>                       I agree</p> <p><em>Atherstone &amp; Cook</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-1c8e3afc170169dccecaca07697aa8d97206c61610d0c0c96219350925252dbb"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>  DISTRIBUTABLE             (8)</strong></p> <p><strong>WEBSTER     MBANGANI</strong></p> <p><strong>v</strong></p> <p><strong>OK     ZIMBABWE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GOWORA JA &amp; HLATSHWAYO JA</strong></p> <p><strong>HARARE, </strong>JULY 17, 2017</p> <p>No appearance for the appellant</p> <p>Mrs<em> Matsika</em>, for the respondent</p> <p><strong>GWAUNZA JA</strong>:     This is an appeal against the decision of the Labour Court upholding the appellant’s dismissal from his employment with the respondent.</p> <p>On 17 July 2017, the court dismissed the appeal with costs. The appellant was in default but was aggrieved by such dismissal and wrote to the Registrar requesting reasons for the order. These are they:</p> <p>The brief facts of this case are as follows:</p> <p>The appellant was employed as a Branch Manager by the respondent. Sometime in 2009, he was charged with having ordered 180 ‘fancy’ loaves of bread on 11 September 2008 and another 180 loaves on 12 September 2008, contrary to standing orders disallowing bulk purchases. This was a measure implemented by the employer at the height of bread shortages to avoid employees supplying the “black market” with bread, thereby prejudicing the formal market. The appellant was also charged for allegedly cashing 50 personal cheques with a total value of US$254 015.00 and generally failing to diligently execute his duties.</p> <p>The disciplinary committee before which the appellant appeared decided that the penalty for the bulk purchases was dismissal, and proceeded to impose it on the appellant. In relation to the charge of encashment of cheques the appellant was acquitted and a final written warning was imposed for failure to discharge his duties diligently. Therefore, the effective penalty imposed by the disciplinary committee was dismissal. We were satisfied on a reading of the papers before us that no misdirection could be attributed to the disciplinary committee in reaching the decisions it did.</p> <p>Having unsuccessfully gone through the relevant appeals processes both internally and before the Labour Court, the appellant filed this appeal. The appeal was initially set down for hearing on 13 June 2017 following proper service of the notice of hearing on him on 8 May 2017. The service was effected at No. 2208 Manyuchi Road, New Malborough on the appellant’s daughter, Samantha V. Mbangani. However, the matter could not be heard on the set down date.</p> <p>The matter was then set down for hearing on 17 July 2017. The notice of hearing was again served at the same address, this time on Winnet Maniko, who identified herself as a tenant at the address. This was on 23 June 2017.  On the date of hearing, the appellant was in default and after having sight of the Sheriff’s return of service dated 23 June 2017 the court found that service of the notice of hearing had been properly effected.  The address at which service was effected was the appellant’s given address for service in terms of the record and no notice of change of the address had been filed. Further, the appellant’s name was called out from outside the courtroom by the Registrar and no response was received.</p> <p>In these circumstances, the court was satisfied that the appellant was in default, hence its dismissal of the matter.</p> <p><strong>GOWORA JA:                                  </strong>I agree</p> <p><strong>HLATSHWAYO JA:</strong>                       I agree</p> <p><em>Atherstone &amp; Cook</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:19 +0000 Anonymous 10087 at http://zimlii.org UNIFREIGHT LIMITED v MADEMBO (SC 6 of 2018, Civil Appeal SC 213 of 2015) [2015] ZWSC 6 (31 July 2015); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2015/6 <span class="field field--name-title field--type-string field--label-hidden">UNIFREIGHT LIMITED v MADEMBO (SC 6 of 2018, Civil Appeal SC 213 of 2015) [2015] ZWSC 6 (31 July 2015);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/1439" hreflang="en">Administrative Law</a></div> <div class="field__item"><a href="/taxonomy/term/1713" hreflang="en">Natural Justice</a></div> <div class="field__item"><a href="/taxonomy/term/2380" hreflang="x-default">rules of</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2103" hreflang="x-default">Disciplinary proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2015/6/2015-zwsc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39760">2015-zwsc-6.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2015/6/2015-zwsc-6.pdf" type="application/pdf; length=202912">2015-zwsc-6.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE</strong><strong>   (13)</strong></p> <p> </p> <p><strong>UNIFREIGHT     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>LIGHTON     MADEMBO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA; GUVAVA JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE: 31 JULY, 2015</strong></p> <p><em>A. Rukawo</em>, for the appellant</p> <p>N.S. <em>Chidzanga</em>, for the respondent</p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a decision of the Labour Court judgment number LC/H/122/2012 dated 17 August 2012.   After hearing arguments from both counsel the appeal was dismissed with costs. It was indicated that the reasons for this decision would follow in due course. These are they.</p> <p>The brief facts which gave rise to this matter may be summarized as follows:</p> <p>The respondent was employed by the appellant as a truck driver. His duties included delivering bulk fuel to various service stations. On 8 September 2010 the respondent made a delivery to Cargill Chegutu.  Upon arrival at the premises he had a physical altercation with a local tout. The manager of Cargill reported the incident to the police and the tout was arrested. Upon being interviewed by the police, the tout made a statement claiming that on a previous occasion, the respondent stopped at an off-route location and offered to sell two “containers” of diesel to the tout for $60.00. The tout offered to pay $30.00 which the respondent rejected. The respondent denied the allegation and stated that he had in fact been robbed of a container of diesel by the tout.</p> <p>When the appellant was informed by the police on the allegations made by the tout it suspended the respondent from 15 September 2010 with pay until Monday 20 September 2010 whilst conducting investigations into the matter.  On 18 September 2010, the Contracts Supervisor wrote a report of the incident to the Personnel Manager of the appellant indicating that a report against the conduct of the respondent had been filed by Total Zimbabwe who is a customer of the appellant and to whom Cargill Chegutu is a client. The Contracts Supervisor, on the basis of this report, requested that the personnel department arrange for the respondent to be charged with misconduct arising from the incident.</p> <p>Following the above report the respondent was charged with the following acts of misconduct:</p> <ol><li>Contravening Part III Section 3.3.5 as read with Part VII 7.3 Subsection 7.33 (d) of the Unifreight Group Code, that is, violent and disorderly behaviour.</li> <li>Contravening Part III Section 3.3.5 (ix) as read with Part VII, Section 7.4 subsection 7.4.4 (d) of the same Code of Conduct, that is any act or attempted act of dishonesty against the company or any of its customers whether a criminal conviction is pursued or not.</li> </ol><p>The respondent was summoned to attend a disciplinary hearing scheduled to be held on 24 September 2010. The letter advised the respondent that he had the right to be represented by a workers committee member or fellow worker at the proceedings.</p> <p>At the hearing the respondent denied the charges and explained that on 25 August 2010 the tout had approached him and asked to buy fuel from him. He advised the tout that he did not sell fuel and he should buy it from a service station. He went on to ask this individual where he could buy affordable potatoes and he was directed to a place a few kilometres outside Chegutu. He admits that he went off route in search of these potatoes. When he pulled off the road, he crossed the road to buy the potatoes. As he was buying the potatoes he noticed a small truck with four men in it parked behind his truck. He stated that some of them disappeared behind his truck.  He crossed over to investigate and realized that they were syphoning diesel from his truck. He stated that a scuffle ensued but the men got away with some fuel. The respondent admitted that he did not report this incident as he reasoned that the fuel syphoned was negligible. The respondent explained that when he made the delivery on 8 September 2010 he recognized the tout as one of the four men involved in the incident of 25 August, 2010 and he decided to confront him.</p> <p>The disciplinary committee disbelieved the respondent and found him guilty as charged. It reasoned as follows:</p> <ol><li>He failed to report the incident of 25 August 2010 which was found to be tantamount to contributing to fuel loss and or theft;</li> <li>The company suffered substantial prejudice by loss of business as a result of his violent and disorderly behavior as it lost the contract with Cargill.</li> <li>The respondent did not appear to show any remorse.</li> </ol><p>The disciplinary committee decided that the appropriate penalty was to dismiss the respondent as a deterrent to any other would be perpetrators in their employ. He was dismissed with immediate effect on 24 September 2010. The respondent appealed this decision to the Executive Director of Personnel and Training on 28 September 2010. In his appeal he submitted that he was under the assumption that the hearing was merely a discussion and not a formal hearing. He stated that he queried why there were no representatives from the workers committee present during the hearing in accordance with their code. He informed the appeals committee that when he queried the anomaly he was advised that it was simply a discussion not a hearing. He stated that he was therefore surprised to receive a letter of termination of employment.</p> <p>The Executive Director of Personnel and Training analyzed the appeal and concluded that the determination of the committee could not be faulted. As to composition of the committee it was brought to his attention that the Works Council minutes of 23 September 2010 discussed the threat by the Logistics Workers Committee to boycott all disciplinary hearings on allegations that the employer was perpetually inclined to dismiss employees. This difficulty remained ongoing at the time the respondent’s hearing was held and the employer made the decision to proceed with hearings and not be held to ransom by the Workers Committee. The Executive Director also took into account that the respondent was informed of this predicament at the hearing and that he gave his consent to proceed. It was also noted that the letter calling the respondent to the hearing advised him that he would be well within his rights to attend with any other worker if he was so inclined. He was also advised that he could seek legal representation. Having taken note of all these factors the appeal was dismissed on 7 October 2010.</p> <p>                        Dissatisfied with the result, the respondent appealed to the Labour Court alleging gross procedural irregularities which he believed should result in the setting aside of the decision of the disciplinary hearings. He argued that:</p> <ol><li>The employer failed to produce the record of proceedings</li> <li>That there was no evidence to support claims of the boycott members of the Workers Committee as alleged by the Executive Director, neither was there evidence to show that members of the Workers Committee were notified and invited to attend which invitation they declined</li> <li>In the absence of a representative of the Workers Committee the hearing was not properly constituted</li> <li>The hearing was not properly constituted as the Chairman was also the complainant and also served as the minute taker.</li> </ol><p>The court <em>a quo</em> in its judgment was dissatisfied with the failure by the disciplinary committee to transcribe proper minutes and the double role performed by the Chairman which it held compromised his impartiality as he had to be both complainant and adjudicator. On this basis the court <em>a quo</em> ordered the remittal of the matter to be heard <em>de novo</em> by the disciplinary committee in a procedurally correct manner within thirty days of the order and, pending such hearing the respondent was to revert to “suspension with pay” basis.</p> <p>The appellant was aggrieved by the judgment of the court <em>a quo</em> and appealed against its decision on the following grounds:</p> <ol><li>The Labour Court grossly misdirected itself on the facts in finding that there were gross procedural irregularities in the disciplinary proceedings</li> <li>The Labour Court erred in finding that by doubling up as complainant and Chairman, the impartiality of the Chairman became compromised when in fact the Chairman was never the complainant</li> <li>The Labour Court erred in finding that members of the disciplinary committee were also the investigating officials</li> <li>The Labour Court erred in finding that the Chairman’s assumption of the role of secretary was an irregularity in procedure nullifying the disciplinary hearing</li> <li>The Labour Court grossly misdirected itself in ruling that there was an irregularity in procedure because the workers representatives had not been asked to provide a secretary at the hearing when in fact the workers representatives had boycotted the disciplinary hearing</li> </ol><p>In my view it is apparent from the above grounds of appeal that this appeal turns on one issue; that is, whether the procedural irregularities in the disciplinary hearing are so serious as to warrant the setting aside of the determination of the hearing committee.</p> <p>It cannot be denied that there were some irregularities during the disciplinary hearing. This is indeed accepted by the appellant. Although it is trite that not all irregularities result in the vitiating of disciplinary proceedings it must be shown that the irregularities resulted in prejudice. This point was well articulated in the case of <em>Nyahuma v Barclays Bank of Zimbabwe </em>SC 67/05 wherein the court held as follows:</p> <p>“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”</p> <p>In<em> casu</em>, it appears most of the procedural dictates of the Code governing the employment relationship between the parties were disregarded. There was a blatant disregard of the most basic of procedural requirements. No accurate minutes of the disciplinary hearing were kept by the appellant. The committee comprised of only two disciplinary officers, one of whom was the chairman and also posed questions raising the employers concerns. In essence, the Chairman’s role went beyond that of an inquisitorial authority and became a party to the proceedings.</p> <p>It is important to note that the Code that regulates the conduct between employer and employee operates as a contractual obligation which they both willingly entered into and is therefore binding. One of the parties cannot therefore arbitrarily, and to the prejudice of the other, decide not to comply with certain dictates of that contract.</p> <p>The double role undertaken by the Chairman as both chairman and complainant was in my view wholly inappropriate and not in line with the principles of natural justice. His impartiality could in these circumstances not be guaranteed. This is clearly apparent when one has regard to the accepted test for bias. The case of<em> City and Suburban Transport (Pvt) Ltd v Local Board Road Transportation Johannesburg </em>1932 WLD 100 sets out clearly the test for bias. It was held that:</p> <p>“the test [for bias] appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.” [My emphasis]</p> <p>This case makes it clear that the conduct of the appellant, in convening a hearing, must be transparent. Any reasonable person faced with the above facts would suspect that the chairman was biased. <em>In casu</em> the duplication of roles creates doubt with regard to impartiality in anyone’s mind and therefore a reasonable man could not find such an arrangement free from bias. The case of <em>Musarira v Anglo American Corporation</em> SC 53/05 states that once a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. The Chairman cannot therefore operate in an employer appointed role and remain impartial as the adjudicator in the hearing.</p> <p>The Code mandates that a representative of the Workers Committee be present at all hearings, for substantive and procedural fairness, a disciplinary hearing ought to be properly constituted. In the case of <em>Madzitauswa v ZFC Ltd &amp; Anor</em> SC 73/15, GOWORA JA stated that:</p> <p>“The definition of disciplinary committee clearly envisages a body in which both the employer and the employees are represented …</p> <p>In any event, this court has time after time emphasised the need for flexibility in the conduct of disciplinary proceedings in which the overriding principle is that disciplinary tribunals must conduct an enquiry.  The rules of natural justice require no more than that the domestic tribunal acts according to common sense precepts of fairness.  See <em>Dulys Holdings v Chanaiwa</em> 2007 (2) ZLR 1 at 6A-B.” [My emphasis]</p> <p>A disciplinary committee must be comprised of representatives of the employer and the employees. This was not the case during the respondent’s hearing. This case also recognizes that certain liberties can be taken in conducting hearings. However, such flexibility must not operate against the rights of the employee to a fair and procedurally just hearing.  (See also <em>Chataira v ZESA</em> HH9/2000).  In my view, the facts of this case show that the respondent was clearly prejudiced by the irregularities.</p> <p>The appellant also invited this Court to set aside the decision of the court <em>a quo</em>, which was based on findings of fact. It is trite that for an appellate court to interfere with the judgment of a court <em>a quo</em> based on factual findings gross misdirection must be alleged and established. The case of <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S) states in this regard as follows:</p> <p>“In other words, the decision must have been irrational, in the sense of being outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.” [My emphasis]</p> <p>This cannot be said of the decision of the court <em>a quo. </em> It cannot be said that the court <em>a quo</em> erred. In fact, the court <em>a quo</em> correctly applied the principles in <em>Dalny Mine v Banda</em> 1999(1) ZLR 220 which states that:</p> <p><strong>“</strong>As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:</p> <ul><li>by remitting the matter for hearing <em>de novo</em> and in a procedurallycorrect manner;</li> <li>by the Tribunal hearing the evidence <em>de novo</em>.”</li> </ul><p>                        It is the finding of this Court that the court <em>a quo</em> therefore correctly remitted the appeal back to the disciplinary committee.</p> <p>                        Accordingly it was for the above reasons that the court found against the appellant.</p> <p>                        <strong>GOWORA JA:                      </strong>I agree</p> <p><strong>MAVANGIRA JA:               </strong>I agree</p> <p><em>Gwaunza &amp; Mapota, </em>appellant’s legal practitioners</p> <p><em>Mangwana &amp; Partners, </em>respondent’s legal practitioners</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-a73668f4147dbf642e92872807b60e33a88436da3fdc721545776b816f8c523f"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE</strong><strong>   (13)</strong></p> <p> </p> <p><strong>UNIFREIGHT     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>LIGHTON     MADEMBO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA; GUVAVA JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE: 31 JULY, 2015</strong></p> <p><em>A. Rukawo</em>, for the appellant</p> <p>N.S. <em>Chidzanga</em>, for the respondent</p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a decision of the Labour Court judgment number LC/H/122/2012 dated 17 August 2012.   After hearing arguments from both counsel the appeal was dismissed with costs. It was indicated that the reasons for this decision would follow in due course. These are they.</p> <p>The brief facts which gave rise to this matter may be summarized as follows:</p> <p>The respondent was employed by the appellant as a truck driver. His duties included delivering bulk fuel to various service stations. On 8 September 2010 the respondent made a delivery to Cargill Chegutu.  Upon arrival at the premises he had a physical altercation with a local tout. The manager of Cargill reported the incident to the police and the tout was arrested. Upon being interviewed by the police, the tout made a statement claiming that on a previous occasion, the respondent stopped at an off-route location and offered to sell two “containers” of diesel to the tout for $60.00. The tout offered to pay $30.00 which the respondent rejected. The respondent denied the allegation and stated that he had in fact been robbed of a container of diesel by the tout.</p> <p>When the appellant was informed by the police on the allegations made by the tout it suspended the respondent from 15 September 2010 with pay until Monday 20 September 2010 whilst conducting investigations into the matter.  On 18 September 2010, the Contracts Supervisor wrote a report of the incident to the Personnel Manager of the appellant indicating that a report against the conduct of the respondent had been filed by Total Zimbabwe who is a customer of the appellant and to whom Cargill Chegutu is a client. The Contracts Supervisor, on the basis of this report, requested that the personnel department arrange for the respondent to be charged with misconduct arising from the incident.</p> <p>Following the above report the respondent was charged with the following acts of misconduct:</p> <ol><li>Contravening Part III Section 3.3.5 as read with Part VII 7.3 Subsection 7.33 (d) of the Unifreight Group Code, that is, violent and disorderly behaviour.</li> <li>Contravening Part III Section 3.3.5 (ix) as read with Part VII, Section 7.4 subsection 7.4.4 (d) of the same Code of Conduct, that is any act or attempted act of dishonesty against the company or any of its customers whether a criminal conviction is pursued or not.</li> </ol><p>The respondent was summoned to attend a disciplinary hearing scheduled to be held on 24 September 2010. The letter advised the respondent that he had the right to be represented by a workers committee member or fellow worker at the proceedings.</p> <p>At the hearing the respondent denied the charges and explained that on 25 August 2010 the tout had approached him and asked to buy fuel from him. He advised the tout that he did not sell fuel and he should buy it from a service station. He went on to ask this individual where he could buy affordable potatoes and he was directed to a place a few kilometres outside Chegutu. He admits that he went off route in search of these potatoes. When he pulled off the road, he crossed the road to buy the potatoes. As he was buying the potatoes he noticed a small truck with four men in it parked behind his truck. He stated that some of them disappeared behind his truck.  He crossed over to investigate and realized that they were syphoning diesel from his truck. He stated that a scuffle ensued but the men got away with some fuel. The respondent admitted that he did not report this incident as he reasoned that the fuel syphoned was negligible. The respondent explained that when he made the delivery on 8 September 2010 he recognized the tout as one of the four men involved in the incident of 25 August, 2010 and he decided to confront him.</p> <p>The disciplinary committee disbelieved the respondent and found him guilty as charged. It reasoned as follows:</p> <ol><li>He failed to report the incident of 25 August 2010 which was found to be tantamount to contributing to fuel loss and or theft;</li> <li>The company suffered substantial prejudice by loss of business as a result of his violent and disorderly behavior as it lost the contract with Cargill.</li> <li>The respondent did not appear to show any remorse.</li> </ol><p>The disciplinary committee decided that the appropriate penalty was to dismiss the respondent as a deterrent to any other would be perpetrators in their employ. He was dismissed with immediate effect on 24 September 2010. The respondent appealed this decision to the Executive Director of Personnel and Training on 28 September 2010. In his appeal he submitted that he was under the assumption that the hearing was merely a discussion and not a formal hearing. He stated that he queried why there were no representatives from the workers committee present during the hearing in accordance with their code. He informed the appeals committee that when he queried the anomaly he was advised that it was simply a discussion not a hearing. He stated that he was therefore surprised to receive a letter of termination of employment.</p> <p>The Executive Director of Personnel and Training analyzed the appeal and concluded that the determination of the committee could not be faulted. As to composition of the committee it was brought to his attention that the Works Council minutes of 23 September 2010 discussed the threat by the Logistics Workers Committee to boycott all disciplinary hearings on allegations that the employer was perpetually inclined to dismiss employees. This difficulty remained ongoing at the time the respondent’s hearing was held and the employer made the decision to proceed with hearings and not be held to ransom by the Workers Committee. The Executive Director also took into account that the respondent was informed of this predicament at the hearing and that he gave his consent to proceed. It was also noted that the letter calling the respondent to the hearing advised him that he would be well within his rights to attend with any other worker if he was so inclined. He was also advised that he could seek legal representation. Having taken note of all these factors the appeal was dismissed on 7 October 2010.</p> <p>                        Dissatisfied with the result, the respondent appealed to the Labour Court alleging gross procedural irregularities which he believed should result in the setting aside of the decision of the disciplinary hearings. He argued that:</p> <ol><li>The employer failed to produce the record of proceedings</li> <li>That there was no evidence to support claims of the boycott members of the Workers Committee as alleged by the Executive Director, neither was there evidence to show that members of the Workers Committee were notified and invited to attend which invitation they declined</li> <li>In the absence of a representative of the Workers Committee the hearing was not properly constituted</li> <li>The hearing was not properly constituted as the Chairman was also the complainant and also served as the minute taker.</li> </ol><p>The court <em>a quo</em> in its judgment was dissatisfied with the failure by the disciplinary committee to transcribe proper minutes and the double role performed by the Chairman which it held compromised his impartiality as he had to be both complainant and adjudicator. On this basis the court <em>a quo</em> ordered the remittal of the matter to be heard <em>de novo</em> by the disciplinary committee in a procedurally correct manner within thirty days of the order and, pending such hearing the respondent was to revert to “suspension with pay” basis.</p> <p>The appellant was aggrieved by the judgment of the court <em>a quo</em> and appealed against its decision on the following grounds:</p> <ol><li>The Labour Court grossly misdirected itself on the facts in finding that there were gross procedural irregularities in the disciplinary proceedings</li> <li>The Labour Court erred in finding that by doubling up as complainant and Chairman, the impartiality of the Chairman became compromised when in fact the Chairman was never the complainant</li> <li>The Labour Court erred in finding that members of the disciplinary committee were also the investigating officials</li> <li>The Labour Court erred in finding that the Chairman’s assumption of the role of secretary was an irregularity in procedure nullifying the disciplinary hearing</li> <li>The Labour Court grossly misdirected itself in ruling that there was an irregularity in procedure because the workers representatives had not been asked to provide a secretary at the hearing when in fact the workers representatives had boycotted the disciplinary hearing</li> </ol><p>In my view it is apparent from the above grounds of appeal that this appeal turns on one issue; that is, whether the procedural irregularities in the disciplinary hearing are so serious as to warrant the setting aside of the determination of the hearing committee.</p> <p>It cannot be denied that there were some irregularities during the disciplinary hearing. This is indeed accepted by the appellant. Although it is trite that not all irregularities result in the vitiating of disciplinary proceedings it must be shown that the irregularities resulted in prejudice. This point was well articulated in the case of <em>Nyahuma v Barclays Bank of Zimbabwe </em>SC 67/05 wherein the court held as follows:</p> <p>“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”</p> <p>In<em> casu</em>, it appears most of the procedural dictates of the Code governing the employment relationship between the parties were disregarded. There was a blatant disregard of the most basic of procedural requirements. No accurate minutes of the disciplinary hearing were kept by the appellant. The committee comprised of only two disciplinary officers, one of whom was the chairman and also posed questions raising the employers concerns. In essence, the Chairman’s role went beyond that of an inquisitorial authority and became a party to the proceedings.</p> <p>It is important to note that the Code that regulates the conduct between employer and employee operates as a contractual obligation which they both willingly entered into and is therefore binding. One of the parties cannot therefore arbitrarily, and to the prejudice of the other, decide not to comply with certain dictates of that contract.</p> <p>The double role undertaken by the Chairman as both chairman and complainant was in my view wholly inappropriate and not in line with the principles of natural justice. His impartiality could in these circumstances not be guaranteed. This is clearly apparent when one has regard to the accepted test for bias. The case of<em> City and Suburban Transport (Pvt) Ltd v Local Board Road Transportation Johannesburg </em>1932 WLD 100 sets out clearly the test for bias. It was held that:</p> <p>“the test [for bias] appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.” [My emphasis]</p> <p>This case makes it clear that the conduct of the appellant, in convening a hearing, must be transparent. Any reasonable person faced with the above facts would suspect that the chairman was biased. <em>In casu</em> the duplication of roles creates doubt with regard to impartiality in anyone’s mind and therefore a reasonable man could not find such an arrangement free from bias. The case of <em>Musarira v Anglo American Corporation</em> SC 53/05 states that once a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. The Chairman cannot therefore operate in an employer appointed role and remain impartial as the adjudicator in the hearing.</p> <p>The Code mandates that a representative of the Workers Committee be present at all hearings, for substantive and procedural fairness, a disciplinary hearing ought to be properly constituted. In the case of <em>Madzitauswa v ZFC Ltd &amp; Anor</em> SC 73/15, GOWORA JA stated that:</p> <p>“The definition of disciplinary committee clearly envisages a body in which both the employer and the employees are represented …</p> <p>In any event, this court has time after time emphasised the need for flexibility in the conduct of disciplinary proceedings in which the overriding principle is that disciplinary tribunals must conduct an enquiry.  The rules of natural justice require no more than that the domestic tribunal acts according to common sense precepts of fairness.  See <em>Dulys Holdings v Chanaiwa</em> 2007 (2) ZLR 1 at 6A-B.” [My emphasis]</p> <p>A disciplinary committee must be comprised of representatives of the employer and the employees. This was not the case during the respondent’s hearing. This case also recognizes that certain liberties can be taken in conducting hearings. However, such flexibility must not operate against the rights of the employee to a fair and procedurally just hearing.  (See also <em>Chataira v ZESA</em> HH9/2000).  In my view, the facts of this case show that the respondent was clearly prejudiced by the irregularities.</p> <p>The appellant also invited this Court to set aside the decision of the court <em>a quo</em>, which was based on findings of fact. It is trite that for an appellate court to interfere with the judgment of a court <em>a quo</em> based on factual findings gross misdirection must be alleged and established. The case of <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S) states in this regard as follows:</p> <p>“In other words, the decision must have been irrational, in the sense of being outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.” [My emphasis]</p> <p>This cannot be said of the decision of the court <em>a quo. </em> It cannot be said that the court <em>a quo</em> erred. In fact, the court <em>a quo</em> correctly applied the principles in <em>Dalny Mine v Banda</em> 1999(1) ZLR 220 which states that:</p> <p><strong>“</strong>As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:</p> <ul><li>by remitting the matter for hearing <em>de novo</em> and in a procedurallycorrect manner;</li> <li>by the Tribunal hearing the evidence <em>de novo</em>.”</li> </ul><p>                        It is the finding of this Court that the court <em>a quo</em> therefore correctly remitted the appeal back to the disciplinary committee.</p> <p>                        Accordingly it was for the above reasons that the court found against the appellant.</p> <p>                        <strong>GOWORA JA:                      </strong>I agree</p> <p><strong>MAVANGIRA JA:               </strong>I agree</p> <p><em>Gwaunza &amp; Mapota, </em>appellant’s legal practitioners</p> <p><em>Mangwana &amp; Partners, </em>respondent’s legal practitioners</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:17 +0000 Anonymous 10085 at http://zimlii.org ZIMRA v Mudzimuwaona (SC 4 of 2018, Civil Appeal 176 of 2013) [2014] ZWSC 4 (28 July 2014); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2014/4 <span class="field field--name-title field--type-string field--label-hidden">ZIMRA v Mudzimuwaona (SC 4 of 2018, Civil Appeal 176 of 2013) [2014] ZWSC 4 (28 July 2014);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2125" hreflang="x-default">CONTRACT</a></div> <div class="field__item"><a href="/taxonomy/term/2377" hreflang="x-default">Termination</a></div> <div class="field__item"><a href="/taxonomy/term/2378" hreflang="x-default">fixed term contract</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2119" hreflang="x-default">Lawful dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2361" hreflang="x-default">Salaries and wages</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2014/4/2014-zwsc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41108">2014-zwsc-4.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2014/4/2014-zwsc-4.pdf" type="application/pdf; length=131172">2014-zwsc-4.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>        (3)</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>CHESTER     MUDZIMUWAONA</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, GOWORA JA &amp; MUTEMA AJA</strong></p> <p><strong>BULAWAYO, </strong>28 JULY 2014</p> <p><em>T. Magwaliba</em>, for the appellant                                                                                         </p> <p><em>C. Mucheche</em>, for the first respondent</p> <p><strong>                        GOWORA JA</strong>:  This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course. The following are the reasons for the order.</p> <p>                        The facts arising in this matter are that in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:</p> <p>“upon successful completion of the probation period the employment contract shall run for a further period of 24 (twenty-four) months after which the authority , may at its sole discretion offer you permanent employment on such terms and conditions as determined by it at the time.”</p> <p>                        The literal meaning of that clause is that the respondent’s contract was subject, first to the successful completion of the probation period and then would terminate at the end of 36 month. </p> <p>                        In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment. He was arraigned before a disciplinary committee and was found guilty of both charges. He was as a consequence dismissed from employment. He appealed to the appeals committee without success.</p> <p>                        The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court <em>a quo</em> ordered the appellant to reinstate the respondent without loss of salary or benefits and, in the event that reinstatement was no longer tenable, to pay damages in <em>lieu</em> of reinstatement. This decision was not appealed against. Instead, the parties decided to negotiate the <em>quantum</em> of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification. He claimed that when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee. The appellant opposed the quantification on the basis that the respondent was employed on a fixed term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract. The Labour Court ruled in favour of the respondent and ordered the appellant to pay:</p> <ul><li>US$ 19 740.16 as back-pay and benefits</li> <li>Twelve (12) months’ salary that the respondent would have earned in August 2011 minus US$150.00 earned by the respondent per month for a period of twelve months.</li> </ul><p>The appellant was aggrieved by the decision and with the leave of this court has appealed the order of the court <em>a quo</em>. It is criticized for the following reasons:</p> <ul><li> </li> </ul><p>-           failing to give proper weight to the fact that when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.</p> <ul><li> </li> <li> </li> </ul><p>-           failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.</p> <ul><li> </li> </ul><p>-           in failing to deduct the US$150.00 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.</p> <ul><li> </li> </ul><p>-           in rejecting the evidence of the appellant’s expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.</p> <p>                        The respondent raised three preliminary objections to the appeal. The objections were respectively that, the notice of appeal did not state the correct date of judgment, the grounds of appeal were not clear and concise and, lastly, that the grounds of appeal did not raise questions of law. The respondent abandoned the first objection after conceding that the notice of appeal in point of fact reflected the correct date of judgment.</p> <p>                        The other two points were dismissed by the court.  Quite apart from the fact that in mounting the objections, the respondent sought to rely on the Supreme Court Rules, 1964 which are not applicable to appeals from the Labour Court, in attacking the grounds of appeal, the point that the grounds of appeal were not clear and concise had no merit. The respondent was unable to show to this court in what way the grounds of appeal were not clear and concise. The grounds set out by the appellant may have been inelegantly drafted but they articulate the basis upon which the appeal is founded.</p> <p>                        Regarding the point taken that the grounds of appeal were not on a question of law, the court was of the view that the point was improperly taken. The issue of what is a question of law has been addressed in a plethora of cases. See for example, <em>Muzuva v United Bottlers (Pvt) Ltd </em>1994 (1) ZLR 217 (S) and <em>Hama v National Railways of Zimbabwe </em>1996 (1) ZLR 664 (S).</p> <p>                        The respondent submitted that the appellant should have expressly stated in its grounds of appeal that the factual findings of the court <em>a quo</em> are gross as to amount to a question of law.  In <em>Reserve Bank of Zimbabwe v Granger and Anor</em> SC 34/01, MUCHECHETERE JA (as he then was), at page 5 to 6 of the cyclostyled judgment, said:</p> <p>“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”</p> <p>These remarks were qualified by GARWE JA in <em>Zvokusekwa v Biita Rural District Council</em> SC-44-15 as follows:</p> <p>“In my view, the remarks made in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think, be guided by the substance of the grounds of appeal and not the form.  Legal practitioners often exhibit different styles in formulating such grounds.  What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.” </p> <p>                        The essential principle outlined above is that regard must be had to the substance of a ground of appeal as opposed to its form in order to determine whether it raises a question of law. The court was of the view that the grounds of appeal raised by the appellant in essence attacked the alleged failure by the court <em>a quo</em> to consider relevant facts which failure led to an error at law. The grounds complied with the requirements of s 92F of the Labour Act [<em>Chapter 28:01</em>] and therefore the point <em>in limine</em> was dismissed.</p> <p>                        On the merits the issues which are pertinent in the determination of the appeal are the following:</p> <ul><li>Whether or not the court <em>a quo</em> correctly applied the principles on fixed term contracts;</li> </ul><p>(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;</p> <ul><li>Whether or not the court drew a distinction between a permanent employee and one on a fixed term contract in its quantification of damages; and</li> <li>Whether or not the court grossly misdirected itself in respect of the factual findings it arrived at on the evidence presented.</li> </ul><p>                        It was the appellant’s contention that the court <em>a quo</em> erred in law by quantifying damages as if the respondent was a permanent employee prior to his dismissal, yet it is clear from the contract of employment that he was on a fixed term contract. One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in <em>Gauntlet Security Services v Leonard</em> 1997 (1) ZLR 583 (S) in which he said:</p> <p>“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”</p> <p>The remarks by the learned judge show that in assessing damages for unlawful termination of an employment contract,  the court has to place the employee in the position he would have been save for the premature termination of the contract. This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract . This position was aptly captured in <em>Goedhals v Graaff-Reinet Municipality</em> 1955 (3) S.A 482 in which HALL J, at 487C-E said;</p> <p>“The general principle upon which damages are to be assessed was laid in <em>Victoria Falls and Transvaal and</em> <em>Power Co. Ltd v Consolidated Langlaate Mines Ltd</em> 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case.”</p> <p>                        What is derived therein is that damages are awarded for what can be termed as expectation loss. There was no dispute between the parties regarding the nature of the respondent’s contract of employment with the appellant. Thus his status was never in issue. His was a fixed term contract. Further, it was not in dispute that when he was dismissed his contract only had six months before it was due to expire.</p> <p>                        Mr <em>Mucheche</em> conceded, properly in my view, that a distinction had to be drawn between reinstatement to a contract without limit of time and one that was of fixed duration. He however, detracted from this concession by submitting that there should be no distinction between the two when considering consequential damages arising out an unlawful termination of a contract of employment.</p> <p>                        <em>In casu</em>, the contract of employment signed by the parties as outlined above, was for a duration of 36 months, which point was conceded by the respondent.  This means that the relationship between the parties was expected to expire on the last day of the 36th month. The appellant submitted that based on the principles of law that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract. This is the correct position.  Damages for unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to unexpired period of that contract. This position is fortified in <em>Myers v Abramson</em> 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:</p> <p>“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.’ (at 127 D-E).”</p> <p>The standard in <em>Myers v Abramson</em> intimates that an employee will be entitled to his proven actual damages, which is the loss of income for the unexpired period. The court <em>a quo</em> awarded the respondent damages in <em>lieu</em> of reinstatement for a period of 12 months yet the remaining period was six months. The court <em>a quo</em> failed to take cognisance of the fact that damages in lieu of reinstatement, are in fact, a substitute of reinstatement. The question that ought to have exercised its mind is; if the respondent were to be reinstated, what would be the period of his engagement in terms of the contract? The answer is obviously six months because it is clearly stated in the contract that it was for the duration of 36 months.</p> <p>The court also accepted the appellant’s reasoning that the court <em>a quo</em> in making the order it made, actually created a new contract for the parties. That was a violation of the principle of sanctity of contracts. In <em>Book v Davidson</em> 1988(1) ZLR 365(S), the sanctity of contracts was discussed as follows:</p> <p>“There is however another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts ...  If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract ... to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”</p> <p>The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it.</p> <p>                        The dispute between the parties does not and cannot extend beyond the life span of the contract. Clearly, the court a quo misdirected itself in extending the dispute beyond the life of the contract. If a contract is for a fixed term it automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. So too do any obligations entered into for performance by the parties to the contract. By accepting that the dispute of the parties did not extend beyond the life of the contract, Mr <em>Mucheche</em> was in effect conceding that there was no place for a claim for consequential damages. Such claim could only properly arise if there was a legitimate expectation that the respondent would be offered permanent employment, which was never the contention.</p> <p>                        What is at issue is the computation of damages for the unexpired period of the contract. In terms of clause 3.1 of the contract the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position. When the respondent was dismissed the appellant had not exercised that discretion. As a consequence the court a quo ought to have given effect to that clause. Its failure to do so meant that it was extending the period of the contract on its own volition contrary to the wishes of the parties as expressed in the contract. It was therefore a serious misdirection on its part to award damages for a period beyond the date of termination as stipulated in the contract. The court a quo completely ignored the agreement that had been entered into between the parties which stipulated the duration of the relationship between the parties.</p> <p>It should also be noted that in the absence of a finding that the respondent had a legitimate expectation that he would be given a permanent contract, there was no justification for the method it used to quantify damages. The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 and failed. He would only be competent to be employed on a permanent basis after successfully completing the training. Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:</p> <p>A Revenue Trainee who fails to successfully complete level 2 and has a negative mentor’s report will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject<em>.</em></p> <p>He did not deny that he had rewritten the required examinations and that he had failed a second time. His explanation upon being shown the examination scripts was that he had forgotten having written the said examinations. Against these clear admissions it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them. From what is stipulated in the policy, it is clear that the respondent’s employment would have been terminated at the end of the 36 months because he had failed the examinations.</p> <p> </p> <p>There was no basis upon which the respondent could have at law been entitled to more than what he would have earned during the unexpired period of his contract with the appellant and thus there was no legal basis upon which the court <em>a quo</em> made the order it did. It is for the above reasons that we allowed the appeal and made the following order:</p> <ol><li>The appeal be and is hereby allowed with costs.</li> <li>The order of the Labour Court is set aside and the following is substituted:</li> </ol><ul><li>The appellant shall pay the respondent the amount of US$1 470.00 as back-pay and benefits less US$900.00 earned by the respondent from informal jobs over a period of six months.</li> </ul><p><strong>CHIDYAUSIKU CJ (Deceased)                  </strong>I agree</p> <p><strong>MUTEMA AJA         (Deceased)                  </strong>I agree</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-f92f767f00bc90bd198425391fa9e03044c4d84ac0606dcd3ef848bbb1a2c711"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>        (3)</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>CHESTER     MUDZIMUWAONA</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, GOWORA JA &amp; MUTEMA AJA</strong></p> <p><strong>BULAWAYO, </strong>28 JULY 2014</p> <p><em>T. Magwaliba</em>, for the appellant                                                                                         </p> <p><em>C. Mucheche</em>, for the first respondent</p> <p><strong>                        GOWORA JA</strong>:  This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course. The following are the reasons for the order.</p> <p>                        The facts arising in this matter are that in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:</p> <p>“upon successful completion of the probation period the employment contract shall run for a further period of 24 (twenty-four) months after which the authority , may at its sole discretion offer you permanent employment on such terms and conditions as determined by it at the time.”</p> <p>                        The literal meaning of that clause is that the respondent’s contract was subject, first to the successful completion of the probation period and then would terminate at the end of 36 month. </p> <p>                        In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment. He was arraigned before a disciplinary committee and was found guilty of both charges. He was as a consequence dismissed from employment. He appealed to the appeals committee without success.</p> <p>                        The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court <em>a quo</em> ordered the appellant to reinstate the respondent without loss of salary or benefits and, in the event that reinstatement was no longer tenable, to pay damages in <em>lieu</em> of reinstatement. This decision was not appealed against. Instead, the parties decided to negotiate the <em>quantum</em> of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification. He claimed that when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee. The appellant opposed the quantification on the basis that the respondent was employed on a fixed term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract. The Labour Court ruled in favour of the respondent and ordered the appellant to pay:</p> <ul><li>US$ 19 740.16 as back-pay and benefits</li> <li>Twelve (12) months’ salary that the respondent would have earned in August 2011 minus US$150.00 earned by the respondent per month for a period of twelve months.</li> </ul><p>The appellant was aggrieved by the decision and with the leave of this court has appealed the order of the court <em>a quo</em>. It is criticized for the following reasons:</p> <ul><li> </li> </ul><p>-           failing to give proper weight to the fact that when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.</p> <ul><li> </li> <li> </li> </ul><p>-           failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.</p> <ul><li> </li> </ul><p>-           in failing to deduct the US$150.00 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.</p> <ul><li> </li> </ul><p>-           in rejecting the evidence of the appellant’s expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.</p> <p>                        The respondent raised three preliminary objections to the appeal. The objections were respectively that, the notice of appeal did not state the correct date of judgment, the grounds of appeal were not clear and concise and, lastly, that the grounds of appeal did not raise questions of law. The respondent abandoned the first objection after conceding that the notice of appeal in point of fact reflected the correct date of judgment.</p> <p>                        The other two points were dismissed by the court.  Quite apart from the fact that in mounting the objections, the respondent sought to rely on the Supreme Court Rules, 1964 which are not applicable to appeals from the Labour Court, in attacking the grounds of appeal, the point that the grounds of appeal were not clear and concise had no merit. The respondent was unable to show to this court in what way the grounds of appeal were not clear and concise. The grounds set out by the appellant may have been inelegantly drafted but they articulate the basis upon which the appeal is founded.</p> <p>                        Regarding the point taken that the grounds of appeal were not on a question of law, the court was of the view that the point was improperly taken. The issue of what is a question of law has been addressed in a plethora of cases. See for example, <em>Muzuva v United Bottlers (Pvt) Ltd </em>1994 (1) ZLR 217 (S) and <em>Hama v National Railways of Zimbabwe </em>1996 (1) ZLR 664 (S).</p> <p>                        The respondent submitted that the appellant should have expressly stated in its grounds of appeal that the factual findings of the court <em>a quo</em> are gross as to amount to a question of law.  In <em>Reserve Bank of Zimbabwe v Granger and Anor</em> SC 34/01, MUCHECHETERE JA (as he then was), at page 5 to 6 of the cyclostyled judgment, said:</p> <p>“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”</p> <p>These remarks were qualified by GARWE JA in <em>Zvokusekwa v Biita Rural District Council</em> SC-44-15 as follows:</p> <p>“In my view, the remarks made in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think, be guided by the substance of the grounds of appeal and not the form.  Legal practitioners often exhibit different styles in formulating such grounds.  What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.” </p> <p>                        The essential principle outlined above is that regard must be had to the substance of a ground of appeal as opposed to its form in order to determine whether it raises a question of law. The court was of the view that the grounds of appeal raised by the appellant in essence attacked the alleged failure by the court <em>a quo</em> to consider relevant facts which failure led to an error at law. The grounds complied with the requirements of s 92F of the Labour Act [<em>Chapter 28:01</em>] and therefore the point <em>in limine</em> was dismissed.</p> <p>                        On the merits the issues which are pertinent in the determination of the appeal are the following:</p> <ul><li>Whether or not the court <em>a quo</em> correctly applied the principles on fixed term contracts;</li> </ul><p>(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;</p> <ul><li>Whether or not the court drew a distinction between a permanent employee and one on a fixed term contract in its quantification of damages; and</li> <li>Whether or not the court grossly misdirected itself in respect of the factual findings it arrived at on the evidence presented.</li> </ul><p>                        It was the appellant’s contention that the court <em>a quo</em> erred in law by quantifying damages as if the respondent was a permanent employee prior to his dismissal, yet it is clear from the contract of employment that he was on a fixed term contract. One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in <em>Gauntlet Security Services v Leonard</em> 1997 (1) ZLR 583 (S) in which he said:</p> <p>“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”</p> <p>The remarks by the learned judge show that in assessing damages for unlawful termination of an employment contract,  the court has to place the employee in the position he would have been save for the premature termination of the contract. This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract . This position was aptly captured in <em>Goedhals v Graaff-Reinet Municipality</em> 1955 (3) S.A 482 in which HALL J, at 487C-E said;</p> <p>“The general principle upon which damages are to be assessed was laid in <em>Victoria Falls and Transvaal and</em> <em>Power Co. Ltd v Consolidated Langlaate Mines Ltd</em> 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case.”</p> <p>                        What is derived therein is that damages are awarded for what can be termed as expectation loss. There was no dispute between the parties regarding the nature of the respondent’s contract of employment with the appellant. Thus his status was never in issue. His was a fixed term contract. Further, it was not in dispute that when he was dismissed his contract only had six months before it was due to expire.</p> <p>                        Mr <em>Mucheche</em> conceded, properly in my view, that a distinction had to be drawn between reinstatement to a contract without limit of time and one that was of fixed duration. He however, detracted from this concession by submitting that there should be no distinction between the two when considering consequential damages arising out an unlawful termination of a contract of employment.</p> <p>                        <em>In casu</em>, the contract of employment signed by the parties as outlined above, was for a duration of 36 months, which point was conceded by the respondent.  This means that the relationship between the parties was expected to expire on the last day of the 36th month. The appellant submitted that based on the principles of law that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract. This is the correct position.  Damages for unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to unexpired period of that contract. This position is fortified in <em>Myers v Abramson</em> 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:</p> <p>“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.’ (at 127 D-E).”</p> <p>The standard in <em>Myers v Abramson</em> intimates that an employee will be entitled to his proven actual damages, which is the loss of income for the unexpired period. The court <em>a quo</em> awarded the respondent damages in <em>lieu</em> of reinstatement for a period of 12 months yet the remaining period was six months. The court <em>a quo</em> failed to take cognisance of the fact that damages in lieu of reinstatement, are in fact, a substitute of reinstatement. The question that ought to have exercised its mind is; if the respondent were to be reinstated, what would be the period of his engagement in terms of the contract? The answer is obviously six months because it is clearly stated in the contract that it was for the duration of 36 months.</p> <p>The court also accepted the appellant’s reasoning that the court <em>a quo</em> in making the order it made, actually created a new contract for the parties. That was a violation of the principle of sanctity of contracts. In <em>Book v Davidson</em> 1988(1) ZLR 365(S), the sanctity of contracts was discussed as follows:</p> <p>“There is however another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts ...  If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract ... to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”</p> <p>The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it.</p> <p>                        The dispute between the parties does not and cannot extend beyond the life span of the contract. Clearly, the court a quo misdirected itself in extending the dispute beyond the life of the contract. If a contract is for a fixed term it automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. So too do any obligations entered into for performance by the parties to the contract. By accepting that the dispute of the parties did not extend beyond the life of the contract, Mr <em>Mucheche</em> was in effect conceding that there was no place for a claim for consequential damages. Such claim could only properly arise if there was a legitimate expectation that the respondent would be offered permanent employment, which was never the contention.</p> <p>                        What is at issue is the computation of damages for the unexpired period of the contract. In terms of clause 3.1 of the contract the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position. When the respondent was dismissed the appellant had not exercised that discretion. As a consequence the court a quo ought to have given effect to that clause. Its failure to do so meant that it was extending the period of the contract on its own volition contrary to the wishes of the parties as expressed in the contract. It was therefore a serious misdirection on its part to award damages for a period beyond the date of termination as stipulated in the contract. The court a quo completely ignored the agreement that had been entered into between the parties which stipulated the duration of the relationship between the parties.</p> <p>It should also be noted that in the absence of a finding that the respondent had a legitimate expectation that he would be given a permanent contract, there was no justification for the method it used to quantify damages. The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 and failed. He would only be competent to be employed on a permanent basis after successfully completing the training. Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:</p> <p>A Revenue Trainee who fails to successfully complete level 2 and has a negative mentor’s report will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject<em>.</em></p> <p>He did not deny that he had rewritten the required examinations and that he had failed a second time. His explanation upon being shown the examination scripts was that he had forgotten having written the said examinations. Against these clear admissions it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them. From what is stipulated in the policy, it is clear that the respondent’s employment would have been terminated at the end of the 36 months because he had failed the examinations.</p> <p> </p> <p>There was no basis upon which the respondent could have at law been entitled to more than what he would have earned during the unexpired period of his contract with the appellant and thus there was no legal basis upon which the court <em>a quo</em> made the order it did. It is for the above reasons that we allowed the appeal and made the following order:</p> <ol><li>The appeal be and is hereby allowed with costs.</li> <li>The order of the Labour Court is set aside and the following is substituted:</li> </ol><ul><li>The appellant shall pay the respondent the amount of US$1 470.00 as back-pay and benefits less US$900.00 earned by the respondent from informal jobs over a period of six months.</li> </ul><p><strong>CHIDYAUSIKU CJ (Deceased)                  </strong>I agree</p> <p><strong>MUTEMA AJA         (Deceased)                  </strong>I agree</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:14 +0000 Anonymous 10084 at http://zimlii.org Reserve Bank of Zimbabwe v Mufudzi & 3 Others (SC 29 of 2018, Civil Appeal 524 of 2014) [2018] ZWSC 29 (26 June 2018); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/29 <span class="field field--name-title field--type-string field--label-hidden">Reserve Bank of Zimbabwe v Mufudzi &amp; 3 Others (SC 29 of 2018, Civil Appeal 524 of 2014) [2018] ZWSC 29 (26 June 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/1459" hreflang="en">Arbitration</a></div> <div class="field__item"><a href="/taxonomy/term/2294" hreflang="x-default">Arbitrator</a></div> <div class="field__item"><a href="/taxonomy/term/2124" hreflang="x-default">Award</a></div> <div class="field__item"><a href="/taxonomy/term/2124" hreflang="x-default">Award</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2158" hreflang="x-default">Retrenchment</a></div> <div class="field__item"><a href="/taxonomy/term/2361" hreflang="x-default">Salaries and wages</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/29/2018-zwsc-29.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37102">2018-zwsc-29.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/29/2018-zwsc-29.pdf" type="application/pdf; length=193058">2018-zwsc-29.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>        (28)</strong></p> <p> </p> <p> </p> <p><strong>RESERVE     BANK     OF     ZIMBABWE</strong></p> <p><strong>v</strong></p> <ol><li><strong>T. LLOYDMUFUDZI(2)RICHARDUSEYA(3)NYASHACHIKAZAZA(4)WARAIDZOTANDI</strong></li> </ol><p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, BHUNU JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, JUNE 26 2017 </strong></p> <p> </p> <p> </p> <p> </p> <p><em>V. Mukwachari, </em>for the appellant</p> <p><em>T. Marume, </em>for the respondents</p> <p> </p> <p> </p> <p> </p> <p><strong>ZIYAMBI AJA:</strong></p> <p>[1]       This is an appeal against a judgment of the Labour Court dismissing an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.</p> <p> </p> <p>[2]        It arises from the facts set out briefly hereunder. The appellant, in 2010, embarked on a retrenchment exercise which affected the respondents, among others. Following the usual negotiations with the works council, a retrenchment agreement was concluded between the appellants’ and the respondents’ representatives on 8 December 2010.  Thereafter pursuant to this agreement each respondent was requested to, and did, sign an ‘Acknowledgement Form’ containing the agreed terms of the retrenchment. With specific reference to motor vehicles and lap tops, the agreement provides:</p> <p>“Vehicle    +5years – Drive out</p> <p>                 -5years -  Calculated at book value</p> <p>             Laptop      Take out at book value”.</p> <p> </p> <p>Certain items like housing and clothing allowances were provided for in the following terms:</p> <p>“….Housing Allowance – in terms of Bank Policy.</p> <p>Clothing Allowance – in terms of Bank Policy.”</p> <p> </p> <p> </p> <p> [3]       The above notwithstanding, the appellant refused to avail the vehicles and laptops to the respondents reasoning that in terms of the respondents’ contracts of employment they were not entitled to the same. The dispute was referred to arbitration and the Arbitrator ruled in favour of the respondents.</p> <p> </p> <p>            The appellant’s appeal to the Labour Court was dismissed on 24 October 2012. The judgment is date stamped 30 November 2012. In terms of the Labour Act an appeal on a point of law only lay, with leave, to the Supreme Court. Any application for leave was to be made within 30 days of the date of the judgment. No application was filed within that period.</p> <p> </p> <p>[4]        On the 11 September 2013, the appellant filed an application for condonation of the late filing of an application for leave to appeal to the Supreme Court. The reason for the delay was said to be the failure of the office of the Registrar to notify the appellant or its legal practitioners of the delivery of the judgment. No explanation was given by the appellant as to how it eventually became aware of the judgment. The learned Judge found the delay to be inordinate and the explanation for the delay unreasonable. Regarding the prospects of success, the learned Judge after considering the contents of the retrenchment agreement as set out in the ACKNOWLEDGMENT FORM as read with the judgment sought to be appealed against concluded:</p> <p>“It is, in my view, unlikely that an appeal court will interfere with the findings and conclusions reached in this matter, based on the clear and unambiguous contents of the retrenchment agreement.”</p> <p> </p> <p> </p> <p> An application for leave to appeal against this judgment was dismissed by the Labour Court but subsequently granted by this Court.</p> <p> </p> <p><strong>THE APPEAL</strong></p> <p> </p> <p>[5] The first ground of appeal alleged an error at law by the court <em>a quo</em> in finding that the delay was inordinate and the explanation therefor unreasonable. The second alleged a misdirection at law by that court in ruling that the appellant had no prospects of success on appeal in the main matter.</p> <p> </p> <p>[6]        The appeal runs foul of two legal principles.  The first is s 92F(1) of the Labour Act which provides that an appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court. The second is that the indulgence of condonation is granted or denied at the discretion of the court of first instance and an appellate court will not, except in limited circumstances, interfere with the exercise by the lower court of that discretion.</p> <p> </p> <p>[7]        Regarding the first ground of appeal, merely using the words ‘erred in law’ does not create a point of law. It must clearly appear from the ground of appeal what point of law is sought to be determined. In that connection it has been held that a serious misdirection on the facts would amount to a question of law. A finding that the delay in making an application is inordinate and the explanation for the delay unreasonable, is a factual finding. Such a finding does not qualify as a point of law unless it is grossly unreasonable, that is, unless it is a finding that no reasonable court faced with the same facts would have made. No allegation of gross unreasonableness has been made nor is any apparent on the record. Accordingly, this ground of appeal, not being on a point of law, is invalid.</p> <p> </p> <p> </p> <p>[8]        As to the second ground of appeal, it is vague and embarrassing, to say the least.  The appellant has not indicated in this ground of appeal what point of law is to be determined on appeal. A finding that there are no prospects of success on appeal was made by the court<em> a quo.</em>  Simply to allege a ‘misdirection in law’ by the court without alleging the nature of the misdirection does not advise this Court of the point of law on which its decision is required. The second ground of appeal is also invalid in that it does not disclose a point of law. </p> <p> </p> <p> </p> <p>[9]        In any event, condonation is an indulgence granted at the discretion of the court of first instance and is not a right obtainable on request.  In an application for condonation, a court considers, among other things, the length of the delay, the reasonableness of the explanation for it, the prospects of success, and the need for finality in litigation.  Here, the delay was found to be inordinate, the explanation proffered for the delay unreasonable and the prospects of success non-existent.</p> <p> </p> <p> </p> <p>[10]      Where a discretion has been exercised and a decision arrived at by a court of first instance the principles enunciated in <em>Barros and Anor vs Chimphonda</em> are applicable.  They were stated by GUBBAY CJ as follows:</p> <p>“It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed, and the Appellate Court may exercise its own discretion in substitution…”</p> <p> </p> <p>[11]      The judgment of the court <em>a quo</em> is well reasoned. The learned Judge carefully assessed all the relevant factors.  Nothing was alleged, or proved, to justify interference by this Court with the judgment of the lower court.</p> <p> </p> <p> </p> <p>[12]      It is for the above reasons that, after hearing submissions by counsel, the appeal was dismissed with costs.</p> <p> </p> <p><strong>GOWORA JA:                                  </strong>I agree</p> <p><strong>BHUNU JA:                                      </strong>I agree</p> <p><em>T H Chitapi &amp; Associates, Appellant’s Legal Practitioners</em></p> <p><em>Matsikidze &amp; Mucheche, Respondent’s Legal Practitioners</em></p> <p> </p> <p>[Chapter 28:01]</p> <p>Labour Court Rules 2006, Rule 36</p> <p>Chapter 28:01</p> <p>See Barros &amp; Anor v Chimphonda 1999 (1) ZLR58 (S)</p> <p>Small Enterprises Development Corporaton v David Chemhere SC23/02;</p> <p>National Foods v Mugadza SC 105/1995; Hama v National Railways of Zimbabwe SC 96/1996</p> <p>Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR217 (SC); Vimbai Mbisva v Rainbow Tourism rop Limited T/A Ranbow Hotel &amp; Towers SC 32/09; Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S) at 256 B-C; Chinyange v Jaggers Wholesalers SC 24/03</p> <p>Supra at para [6]</p> <p>  At pp 62F-63A.</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-60d56829800d195e02eb6c5abc5e7e7d2bce6d2f1cc6b1c631787baa4d2f8da1"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>        (28)</strong></p> <p> </p> <p> </p> <p><strong>RESERVE     BANK     OF     ZIMBABWE</strong></p> <p><strong>v</strong></p> <ol><li><strong>T. LLOYDMUFUDZI(2)RICHARDUSEYA(3)NYASHACHIKAZAZA(4)WARAIDZOTANDI</strong></li> </ol><p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, BHUNU JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, JUNE 26 2017 </strong></p> <p> </p> <p> </p> <p> </p> <p><em>V. Mukwachari, </em>for the appellant</p> <p><em>T. Marume, </em>for the respondents</p> <p> </p> <p> </p> <p> </p> <p><strong>ZIYAMBI AJA:</strong></p> <p>[1]       This is an appeal against a judgment of the Labour Court dismissing an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.</p> <p> </p> <p>[2]        It arises from the facts set out briefly hereunder. The appellant, in 2010, embarked on a retrenchment exercise which affected the respondents, among others. Following the usual negotiations with the works council, a retrenchment agreement was concluded between the appellants’ and the respondents’ representatives on 8 December 2010.  Thereafter pursuant to this agreement each respondent was requested to, and did, sign an ‘Acknowledgement Form’ containing the agreed terms of the retrenchment. With specific reference to motor vehicles and lap tops, the agreement provides:</p> <p>“Vehicle    +5years – Drive out</p> <p>                 -5years -  Calculated at book value</p> <p>             Laptop      Take out at book value”.</p> <p> </p> <p>Certain items like housing and clothing allowances were provided for in the following terms:</p> <p>“….Housing Allowance – in terms of Bank Policy.</p> <p>Clothing Allowance – in terms of Bank Policy.”</p> <p> </p> <p> </p> <p> [3]       The above notwithstanding, the appellant refused to avail the vehicles and laptops to the respondents reasoning that in terms of the respondents’ contracts of employment they were not entitled to the same. The dispute was referred to arbitration and the Arbitrator ruled in favour of the respondents.</p> <p> </p> <p>            The appellant’s appeal to the Labour Court was dismissed on 24 October 2012. The judgment is date stamped 30 November 2012. In terms of the Labour Act an appeal on a point of law only lay, with leave, to the Supreme Court. Any application for leave was to be made within 30 days of the date of the judgment. No application was filed within that period.</p> <p> </p> <p>[4]        On the 11 September 2013, the appellant filed an application for condonation of the late filing of an application for leave to appeal to the Supreme Court. The reason for the delay was said to be the failure of the office of the Registrar to notify the appellant or its legal practitioners of the delivery of the judgment. No explanation was given by the appellant as to how it eventually became aware of the judgment. The learned Judge found the delay to be inordinate and the explanation for the delay unreasonable. Regarding the prospects of success, the learned Judge after considering the contents of the retrenchment agreement as set out in the ACKNOWLEDGMENT FORM as read with the judgment sought to be appealed against concluded:</p> <p>“It is, in my view, unlikely that an appeal court will interfere with the findings and conclusions reached in this matter, based on the clear and unambiguous contents of the retrenchment agreement.”</p> <p> </p> <p> </p> <p> An application for leave to appeal against this judgment was dismissed by the Labour Court but subsequently granted by this Court.</p> <p> </p> <p><strong>THE APPEAL</strong></p> <p> </p> <p>[5] The first ground of appeal alleged an error at law by the court <em>a quo</em> in finding that the delay was inordinate and the explanation therefor unreasonable. The second alleged a misdirection at law by that court in ruling that the appellant had no prospects of success on appeal in the main matter.</p> <p> </p> <p>[6]        The appeal runs foul of two legal principles.  The first is s 92F(1) of the Labour Act which provides that an appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court. The second is that the indulgence of condonation is granted or denied at the discretion of the court of first instance and an appellate court will not, except in limited circumstances, interfere with the exercise by the lower court of that discretion.</p> <p> </p> <p>[7]        Regarding the first ground of appeal, merely using the words ‘erred in law’ does not create a point of law. It must clearly appear from the ground of appeal what point of law is sought to be determined. In that connection it has been held that a serious misdirection on the facts would amount to a question of law. A finding that the delay in making an application is inordinate and the explanation for the delay unreasonable, is a factual finding. Such a finding does not qualify as a point of law unless it is grossly unreasonable, that is, unless it is a finding that no reasonable court faced with the same facts would have made. No allegation of gross unreasonableness has been made nor is any apparent on the record. Accordingly, this ground of appeal, not being on a point of law, is invalid.</p> <p> </p> <p> </p> <p>[8]        As to the second ground of appeal, it is vague and embarrassing, to say the least.  The appellant has not indicated in this ground of appeal what point of law is to be determined on appeal. A finding that there are no prospects of success on appeal was made by the court<em> a quo.</em>  Simply to allege a ‘misdirection in law’ by the court without alleging the nature of the misdirection does not advise this Court of the point of law on which its decision is required. The second ground of appeal is also invalid in that it does not disclose a point of law. </p> <p> </p> <p> </p> <p>[9]        In any event, condonation is an indulgence granted at the discretion of the court of first instance and is not a right obtainable on request.  In an application for condonation, a court considers, among other things, the length of the delay, the reasonableness of the explanation for it, the prospects of success, and the need for finality in litigation.  Here, the delay was found to be inordinate, the explanation proffered for the delay unreasonable and the prospects of success non-existent.</p> <p> </p> <p> </p> <p>[10]      Where a discretion has been exercised and a decision arrived at by a court of first instance the principles enunciated in <em>Barros and Anor vs Chimphonda</em> are applicable.  They were stated by GUBBAY CJ as follows:</p> <p>“It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed, and the Appellate Court may exercise its own discretion in substitution…”</p> <p> </p> <p>[11]      The judgment of the court <em>a quo</em> is well reasoned. The learned Judge carefully assessed all the relevant factors.  Nothing was alleged, or proved, to justify interference by this Court with the judgment of the lower court.</p> <p> </p> <p> </p> <p>[12]      It is for the above reasons that, after hearing submissions by counsel, the appeal was dismissed with costs.</p> <p> </p> <p><strong>GOWORA JA:                                  </strong>I agree</p> <p><strong>BHUNU JA:                                      </strong>I agree</p> <p><em>T H Chitapi &amp; Associates, Appellant’s Legal Practitioners</em></p> <p><em>Matsikidze &amp; Mucheche, Respondent’s Legal Practitioners</em></p> <p> </p> <p>[Chapter 28:01]</p> <p>Labour Court Rules 2006, Rule 36</p> <p>Chapter 28:01</p> <p>See Barros &amp; Anor v Chimphonda 1999 (1) ZLR58 (S)</p> <p>Small Enterprises Development Corporaton v David Chemhere SC23/02;</p> <p>National Foods v Mugadza SC 105/1995; Hama v National Railways of Zimbabwe SC 96/1996</p> <p>Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR217 (SC); Vimbai Mbisva v Rainbow Tourism rop Limited T/A Ranbow Hotel &amp; Towers SC 32/09; Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S) at 256 B-C; Chinyange v Jaggers Wholesalers SC 24/03</p> <p>Supra at para [6]</p> <p>  At pp 62F-63A.</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:59 +0000 Anonymous 10074 at http://zimlii.org Zesa Holdings (Pvt) Limited v Utah (SC 32 of 2018, Civil Appeal SC 807 of 2016) [2018] ZWSC 32 (12 June 2018); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/32 <span class="field field--name-title field--type-string field--label-hidden">Zesa Holdings (Pvt) Limited v Utah (SC 32 of 2018, Civil Appeal SC 807 of 2016) [2018] ZWSC 32 (12 June 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/1459" hreflang="en">Arbitration</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2360" hreflang="x-default">Employer</a></div> <div class="field__item"><a href="/taxonomy/term/2158" hreflang="x-default">Retrenchment</a></div> <div class="field__item"><a href="/taxonomy/term/1981" hreflang="en">Termination of Employment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/32/2018-zwsc-32.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=49117">2018-zwsc-32.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/32/2018-zwsc-32.pdf" type="application/pdf; length=243600">2018-zwsc-32.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>     (27)</strong></p> <p> </p> <p><strong>ZESA     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>ITAYI     UTAH</strong></p> <p>   </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA; GUVAVA JA; MAVANGIRA JA</strong></p> <p><strong>HARARE, SEPTEMBER 22, 2017 AND JUNE 12, 2018</strong></p> <p> </p> <p> </p> <p><em>S. M. Hashiti</em>, for the appellant</p> <p><em>M. Gwisai, </em>with<em> C. Mahlangu</em>, for the respondent</p> <p> </p> <p><strong>GWAUNZA JA</strong>:             This is an appeal against the whole judgment of the Labour Court handed down on 20 February 2015.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The respondent was employed by the appellant as an Apprentice Distribution Electrician on 17 September 1984. He rose through the ranks until he was promoted to the position of Technical Services Director in terms of a contract dated 27 August 2004.  In July 2007 the appellant’s Managing Director wrote to the respondent advising him of a restructuring exercise being underway, and that his post had to be abolished.  He also notified him of an intention to work out his retrenchment package. On 30 July 2007 the Group Company Secretary of the appellant wrote a letter to the respondent in which he outlined the appellant’s proposal for a retrenchment package.</p> <p>The respondent, through his legal practitioners, indicated that he was not agreeable to the proposals concerning the date of termination of the employment relationship, the housing loan, performance bonus, personal loan, foreign travel, purchase of a replacement motor vehicle and furniture.</p> <p> </p> <p>After some correspondence, the parties failed to agree on the appropriate package and eventually the matter was referred to arbitration before Arbitrator Bvumbe in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>]. His terms of reference were the following:</p> <ol><li>“Whether or not ZESA Holding Private Limited was in breach of the terms and conditions of the contract of employment in respect of Itayi Utah who is employed by the applicant as Technical Services Director. Employment contract dated 7 August 2004 in respect of the non-fulfilment of the following benefits:</li> </ol><ul><li>Housing loan</li> <li>Personal loan</li> <li>Performance bonus</li> <li>Replacement Motor Vehicle</li> </ul><ol><li>Whether or not the respondent Itayi Utah is entitled to:</li> </ol><ul><li>Foreign Travel</li> <li>Office Furniture</li> </ul><p>         Benefits as part of his retrenchment package.”</p> <p> </p> <p> </p> <p> </p> <p>Before the Arbitrator, the parties had agreed that the effective date of the ‘retrenchment’ would be the date of the arbitral award (and this agreement was captured in the arbitral award by Arbitrator Bvumbe). In addition, the arbitrator held that the respondent was not entitled to foreign travel and office furniture as well as the housing loan which he claimed.  In respect of a motor vehicle benefit that had been withdrawn, the arbitrator held that the respondent should be paid damages and he also ordered three months’ worth of salary as compensation for the personal loan.</p> <p> </p> <p>On 24 June 2009, the appellant calculated the severance package which the respondent signed “without prejudice”.  The money was subsequently deposited into his account. In an apparent <em>volte face</em>, the respondent later contended that the package had not been properly calculated and that his date of termination should change from 31 March 2009 to the date he would be paid what he contended he was entitled to. He also at this stage questioned the lawfulness of the ‘retrenchment’ process even though it had resulted in him signing for and accepting, a package in terms of Arbitrator Bvumbe’s award.</p> <p> </p> <p>This new challenge to a process that had been concluded between the parties was referred to a different Arbitrator, Mr Manase. His terms of reference encapsulated the respondent’s challenge to the earlier ‘retrenchment’ process concluded through Arbitrator Bvumbe’s award. They read as follows:</p> <p>“(i) Whether or not respondent`s purported retrenchment of applicant and the process that followed was lawful, and</p> <p>(ii)  Whether or not applicant is still an employee of respondent in terms of the law.”</p> <p> </p> <p> </p> <p>Arbitrator Manase held that the purported retrenchment of the respondent was null and void as it had not been approved by the Minister and therefore the respondent was still an employee of the appellant. He ordered that he be reinstated to his former employment with the appellant.</p> <p> </p> <p>Aggrieved by this decision, the appellant appealed to the Labour Court on the grounds that the Arbitrator erred in not finding that acceptance of the retrenchment package even on a purported “without prejudice” basis destroyed any future claims in that respect, by the respondent. The appellant also averred that the Arbitrator erred grossly at law in holding himself to have jurisdiction to determine the conclusiveness or otherwise of the award by Arbitrator Bvumbe. The Labour Court dismissed the appeal. Having unsuccessfully sought leave to appeal to this Court, in the Labour Court, leave was sought and granted by this Court on 14 December 2016. This Court is now seized with the appeal.</p> <p> </p> <p>It has been noted that in the Labour Court the appellant unsuccessfully argued that Arbitrator Manase lacked the jurisdiction to determine the lawfulness or otherwise of the award by Arbitrator Bvumbe. In other words, Arbitrator Manase, who at law enjoyed parallel jurisdiction with Arbitrator Bvumbe, could not competently interfere with the latter’s award.  The appellant, on appeal to this Court, did not directly allude to the matter in its grounds of appeal. In my view however, the question of Arbitrator Manase’s jurisdiction to hear the matter is an important question of law whose determination may effectively dispose of the appeal. In any case it is also important to consider the effect his award had on Arbitrator Bvumbe’s award.  It was also helpful to the court that detailed submissions on the matter were made by both parties in their heads of argument and in argument during the hearing of this appeal.</p> <p> </p> <p>Relying on the case of <em>Williams &amp; Anor v Msipha NO &amp; Ors</em> SC-22-10, the appellant correctly argued in its heads of argument that an appeal court:</p> <p>“must be able to intervene not only against the direct dictates of a judgment of the lower court, but also against its effect”</p> <p> </p> <p>However, before addressing the issue of Arbitrator Manase’s jurisdiction to hear the matter, it is my view that the nature and effect of the process of ‘retrenchment’ that the parties negotiated and acted upon, must be determined first.</p> <p> </p> <p>The appeal therefore raises two issues for determination:</p> <ol><li>Did the parties negotiate a retrenchment package in the manner dictated by the applicable law, and</li> <li>Did Arbitrator Manase have jurisdiction to determine the lawfulness or otherwise, of the process that culminated in the package of benefits being paid to the respondent?</li> </ol><p> </p> <p>In his heads of argument, the respondent correctly outlines the retrenchment procedure then applicable, as follows:</p> <p>“Thus, in case of agreement and forwarding of the agreement to the Retrenchment Board, the effective date of retrenchment would more or less coincide with the date of the final award ….  However, if there was no agreement within one month, the provisions of s 3(8) of S.I. 186/2003 would kick in, with the dispute to be resolved in terms of s 12 (C) of the Act. That is assessment of the matter by the Retrenchment Board and its recommendations to the Minister and finally the approval of the retrenchment package by the Minister, subject to any modifications she or he may make in terms of s 12 (C) (9) of the Act. Until then, the employees remain employees of the employer and entitled to their salaries and benefits”</p> <p> </p> <p> </p> <p>It is not in dispute that this process is not what the parties <em>in casu</em> engaged in. As indicated above the genesis of the dispute was a letter written to the respondent in June 2007, informing him of a restructuring exercise within the appellant, and the abolishment of his post. Thereafter the parties engaged in a process that they termed ‘retrenchment’ and in terms of which a package of benefits payable to the respondent, was negotiated. When a dispute arose as to the total package due to the respondent, the parties by agreement, referred the matter to Arbitrator Bvumbe, whose terms of reference have been set out above. According to the respondent’s own outline of the correct process to follow in the event of a retrenchment, this was the stage at which the parties would have referred the matter to the Retrenchment Board. They chose not to do so.</p> <p> </p> <p>Arbitrator Bvumbe prefixed his award with the following comment:</p> <p>“On this occasion (5 April 2008 the date of referral of the matter to him) the parties endorsed the referral to me as a single arbitrator. They also agreed on the terms of reference which were to be considered for the finalisation of the dispute between the parties, which were ….</p> <p>The parties concurred that the effective date of retrenchment would be the date of the arbitration award.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>This statement by the arbitrator significantly refers to ‘finalisation of the dispute’ between the parties. This suggests clearly that neither side contemplated engaging in the retrenchment process alluded to above. Their intention was to have the dispute relating to the benefits on which agreement had not been reached, finally determined by Arbitrator Bvumbe.</p> <p>     </p> <p>That this was the parties’ clear intention is borne out by their subsequent conduct. Firstly, following Arbitrator Bvumbe’s award, dated 24 October, 2008, the appellant on 30 March 2009 addressed a letter to the respondent’s legal practitioners, to the following effect:</p> <p>“Re: Retrenchment Package</p> <p> The above matter refers:</p> <p>Please find attached to this letter the Retrenchment offer for your client, Itayi for his signature. May we have your        response as a matter of urgency so that we put this matter to rest. “(<em>my emphasis</em>)</p> <p> </p> <p>This letter, as is evident, reinforced the intention to have the dispute resolved in terms of the arbitral award of Mr Bvumbe.</p> <p> </p> <p>Secondly, the respondent accepted the offer on 24 June 2009, in a letter written on his behalf by his legal practitioners. The letter in relevant part read as follows:</p> <p>“We write to advise that our client has since accepted the    retrenchment package by signing the letter. We attach        herewith a signed copy of your offer from our client for immediate processing, without prejudice …. Payment should be processed and deposited in our client’s     account by 30 June 2009, failure which(<em>sic</em>) interest and            damages shall be raised against Zesa Holdings in terms of the law.  We are also instructed to remind you to immediately communicate our client’s termination of employment on 31 March 2009 to his pension managers in order to facilitate immediate pension payments from two pension funds…” (<em>my emphasis</em>)</p> <p> </p> <p>The content and tone of this acceptance letter by the respondent in my view admits of no doubt as to the intention, by him as much as by the appellant, to bring finality to the dispute in this manner. This is regardless of some indications in the letter that the respondent had signed the ‘retrenchment’ package on a ‘without prejudice basis’. It is also significant that the only recourse that the respondent at that point contemplated in the event of the appellant’s failure to pay the package in question, was to sue the latter for ‘interest and damages’.  Sight must also not be lost of the fact that the respondent accepted the termination of his employment and expected immediate notification thereof to his two Pension Funds.</p> <p> </p> <p>Finally, it is not in dispute that the appellant thereafter paid, and the respondent received, the package that the parties had signed for.</p> <p> </p> <p>Against this background I have no doubt in my mind that the process engaged in by the parties, as outlined above, clearly speaks to:</p> <ul><li>Negotiations for a package to be paid to the respondent following the abolition of his employment post with the appellant;</li> <li>Agreed referral for final resolution of the dispute, to Arbitrator Bvumbe</li> <li>An offer made by the appellant to the respondent, of a package worked out in terms of the arbitral award;</li> <li>Acceptance in clear terms of the offer, by the respondent; and</li> <li>Implementation of the agreement through release of the relevant benefits, into the respondent’s bank account.</li> </ul><p> </p> <p> </p> <p>The issues listed above bear all the hallmarks of a contract negotiated, signed and perfected. Despite the parties’ loose usage of the term ‘retrenchment’ package, I am satisfied that the parties negotiated for and signed, an agreement for the termination of the respondent’s employment with the appellant. The agreement was entered into between two consenting parties and was signed freely and voluntarily. It was a contract like any other contract and can, therefore not be said to be unlawful, as the respondent now seeks to argue.</p> <p> </p> <p>Accordingly, I find that the parties neither contemplated nor engaged in a retrenchment process as outlined in the relevant law.</p> <p> </p> <p>This brings me to the second issue to be determined in this matter:</p> <p>“Did Arbitrator Manase have jurisdiction to determine the lawfulness or otherwise, of the process that culminated in the package of benefits being paid to the respondent?”</p> <p> </p> <p> </p> <p>Neither the parties nor Arbitrator Manase dispute that no appeal was filed against Arbitrator Bvumbe’s award. This was the award on the basis of which the package terminating the employment of the respondent was worked out, paid and accepted. The award is therefore extant, and has been fully implemented. In para (c) of his award, Arbitrator Manase correctly stated as follows:</p> <p>“Given the fact that Arbitrator Bvume’s award was neither challenged and set aside, it remains binding… I as an Arbitrator, cannot properly set aside a subsisting arbitral award by a brother arbitrator. The award however, was not conclusive and there were outstanding items for resolution and clarification.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>He clearly was aware of the legal position regarding his competency or lack thereof, to interfere with a fellow arbitrator`s decision. Despite this, he seemed to have entertained the notion that he could vary, amend or supplement the latter’s award. This is evidenced by the latter part of the statement cited above. This is clearly not permissible at law, as illustrated by the authorities cited below.</p> <p> </p> <p>Section 98(9) of the Labour Act [<em>Chapter 28:01</em>] provides that:</p> <p>“(9) In hearing and determining any dispute an arbitrator     shall have the same powers as the Labour Court.”</p> <p> </p> <p>Thus when an arbitrator makes an award, his position is akin to that of a court of law. A court is defined to mean all its judges sitting alone or with other judges. This is because they have the same powers and exercise parallel jurisdiction. Arbitrators are no different in this respect. Accordingly, the <em>res judicata </em>and<em> functus officio</em> legal principles will apply should the matter be brought before the same or a different judge, or in this case, arbitrator.</p> <p> </p> <p> The learned authors Herbstein &amp; Van Winsen “<em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em>” 5th Ed state that:</p> <p>“The general principle, now well established in our law, is   that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that the court thereupon becomes <em>functus officio</em>: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter ceases. The other equally important consideration is             the public interest in bringing litigation to finality. The parties must be assured that once an order of court has been made, it is final and they can arrange their affairs in accordance with that order.”</p> <p> </p> <p> </p> <p> </p> <p>In the case of <em>Kassim v Kassim</em> 1989 (3) ZLR 234 (H) at           p 242 C-D the court held that:-</p> <p>“In general, the court will not recall, vary or add to its own judgment once it has made a final adjudication on the merits.   The principle is stated in <em>Firestone South Africa         (Pvt) Ltd v Genticuro Ag</em> 1977 (4) SA 298 (A) at 306, where TROLLIP JA stated:</p> <p>‘The general principle, now well established in our law, is   that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes <em>functus officio</em>: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.’”</p> <p> </p> <p> </p> <p>                        Furthermore, in <em>Unitrack (Pvt) Ltd v Telone (Pvt) Ltd</em>          SC 10/18 MAVANGIRA AJA (as she then was) held as follows:</p> <p>“It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or      legal authority to re-examine or revisit that decision. Once a decision is made, the term “<em>functus officio</em>” applies to the court or judicial officer concerned.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>In his award, Mr Manase sought to reinstate into his former employment, an employee (the respondent) who had freely and consciously signed an agreement to terminate such employment, and accepted the benefits agreed to between the parties. He thus purported to revive a moribund employment contract as well as reverse the import of Arbitrator Bvumbe’s determination on the benefits payable to the respondent in terms of the supposed retrenchment agreement signed by the parties. No evidence was tendered that the respondent had paid back the amounts that he received. Arbitrator Manase’s award, therefore would have resulted in the respondent being paid essentially the same benefits, twice.</p> <p> </p> <p>Since Arbitrator Manase was not sitting as an appeal court, it was clearly not open to him to do as he purported.</p> <p> </p> <p>More confounding, in my view, is the fact that the parties in this matter agreed to refer the dispute to Arbitrator Manase. This was notwithstanding the common understanding by all that an Arbitrator who enjoys parallel jurisdiction with any other arbitrator can at law, neither set aside nor interfere in any manner with the award of another arbitrator. They also did this in full knowledge of the fact that the first arbitral award was extant, and that the agreement based on it had been fully implemented by the parties to the dispute.</p> <p> </p> <p>The respondent attempts to differentiate between the two arbitral awards as follows:</p> <p>“…. The court <em>a quo</em> did not err because the two awards dealt with separate and distinct causes of action. The Manase award dealt with the lawfulness of the retrenchment while the Bvumbe award dealt with a dispute over claimed contractual benefits and benefits to be included in a retrenchment package….” (<em>my emphasis</em>)  </p> <p> </p> <p> </p> <p>There can be no doubt that the ‘retrenchment’ referred to in this submission is the process, based on Arbitrator Bvumbe’s award, that culminated in the signing of the termination of employment agreement by the parties. As already stated it is evident that the parties loosely used the term ‘retrenchment’ when in fact all they signed was an agreement terminating the respondent’s employment with the appellant. This is the process that Arbitrator Manase was to review and whose lawfulness or otherwise he was to determine.</p> <p>I have found that the process did not amount to a retrenchment. I must make the point that even if it had been a retrenchment process, Arbitrator Manase would still have lacked the jurisdiction to determine its lawfulness or otherwise. Following upon the arbitral award handed down by Arbitrator Bvumbe, the matter became <em>res judicata</em>. By virtue of the fact that both arbitrators were endowed with the same jurisdictional powers, Arbitrator Manase was accordingly <em>functus officio</em> in relation to the same dispute. The first arbitral award could only be reviewed or set aside by a court of higher jurisdiction. Because that did not happen, that award stands as the one that finally determined the dispute, leaving no basis for interference therewith, by the second Arbitrator, Mr Manase. His attempt to do so was therefore of no force or effect.</p> <p> </p> <p>I find in the result that the court <em>a quo</em> misdirected itself in upholding Mr Manase’s award. The appeal therefore has merit and ought to succeed.</p> <p> </p> <p>Having determined that the parties effectively signed and honoured an agreement to terminate the employment of the respondent with the appellant, and that this circumstance constituted a final resolution of the dispute between them, it becomes unnecessary to consider the alternative ground of appeal relating to whether or not the respondent repudiated the employment contract.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In the premises, it is ordered as follows:</p> <ol><li>The appeal succeeds with costs</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol><p>“(i)       The appeal succeeds with costs.</p> <ul><li>The arbitral award by Arbitrator Manase dated July, 2013 be and is hereby set aside.”</li> </ul><p> </p> <p> </p> <p> </p> <p><strong>GUVAVA JA:                       </strong>I agree</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA:</strong>               I agree</p> <p> </p> <p> </p> <p> </p> <p><em>Dube Manikai Hwacha, </em>Appellant`s legal practitioners</p> <p><em>Munyaradzi Gwisai and Partners, </em>Respondent`s legal practitioners</p> <p>See macDonald v Canada (AG) (1994) 1 SCR 311 at 329</p> <p>The letter erroneously states that the offer letter was received on 24 June, 2009, when the legal practitioners’ date stamp on the latter document clearly indicates it was received on 30th March 2009</p> <p>This would, in any case not have changed the character and effect of the agreement, for that is not capable of being concluded on a “without prejudice” basis .  See <em>Yakub Mahomed v John Arnold Bredenkamp HH 130/16</em> where it was held as follows;</p> <p>“I also find persuasive the submission made on behalf of the plaintiff that an agreement cannot be without prejudice or privileged, only the negotiations can…”</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-19172ca1fb3e439ecc983ce7b22469886028d81692c565df1a51c33cf839f976"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>     (27)</strong></p> <p> </p> <p><strong>ZESA     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>ITAYI     UTAH</strong></p> <p>   </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA; GUVAVA JA; MAVANGIRA JA</strong></p> <p><strong>HARARE, SEPTEMBER 22, 2017 AND JUNE 12, 2018</strong></p> <p> </p> <p> </p> <p><em>S. M. Hashiti</em>, for the appellant</p> <p><em>M. Gwisai, </em>with<em> C. Mahlangu</em>, for the respondent</p> <p> </p> <p><strong>GWAUNZA JA</strong>:             This is an appeal against the whole judgment of the Labour Court handed down on 20 February 2015.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The respondent was employed by the appellant as an Apprentice Distribution Electrician on 17 September 1984. He rose through the ranks until he was promoted to the position of Technical Services Director in terms of a contract dated 27 August 2004.  In July 2007 the appellant’s Managing Director wrote to the respondent advising him of a restructuring exercise being underway, and that his post had to be abolished.  He also notified him of an intention to work out his retrenchment package. On 30 July 2007 the Group Company Secretary of the appellant wrote a letter to the respondent in which he outlined the appellant’s proposal for a retrenchment package.</p> <p>The respondent, through his legal practitioners, indicated that he was not agreeable to the proposals concerning the date of termination of the employment relationship, the housing loan, performance bonus, personal loan, foreign travel, purchase of a replacement motor vehicle and furniture.</p> <p> </p> <p>After some correspondence, the parties failed to agree on the appropriate package and eventually the matter was referred to arbitration before Arbitrator Bvumbe in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>]. His terms of reference were the following:</p> <ol><li>“Whether or not ZESA Holding Private Limited was in breach of the terms and conditions of the contract of employment in respect of Itayi Utah who is employed by the applicant as Technical Services Director. Employment contract dated 7 August 2004 in respect of the non-fulfilment of the following benefits:</li> </ol><ul><li>Housing loan</li> <li>Personal loan</li> <li>Performance bonus</li> <li>Replacement Motor Vehicle</li> </ul><ol><li>Whether or not the respondent Itayi Utah is entitled to:</li> </ol><ul><li>Foreign Travel</li> <li>Office Furniture</li> </ul><p>         Benefits as part of his retrenchment package.”</p> <p> </p> <p> </p> <p> </p> <p>Before the Arbitrator, the parties had agreed that the effective date of the ‘retrenchment’ would be the date of the arbitral award (and this agreement was captured in the arbitral award by Arbitrator Bvumbe). In addition, the arbitrator held that the respondent was not entitled to foreign travel and office furniture as well as the housing loan which he claimed.  In respect of a motor vehicle benefit that had been withdrawn, the arbitrator held that the respondent should be paid damages and he also ordered three months’ worth of salary as compensation for the personal loan.</p> <p> </p> <p>On 24 June 2009, the appellant calculated the severance package which the respondent signed “without prejudice”.  The money was subsequently deposited into his account. In an apparent <em>volte face</em>, the respondent later contended that the package had not been properly calculated and that his date of termination should change from 31 March 2009 to the date he would be paid what he contended he was entitled to. He also at this stage questioned the lawfulness of the ‘retrenchment’ process even though it had resulted in him signing for and accepting, a package in terms of Arbitrator Bvumbe’s award.</p> <p> </p> <p>This new challenge to a process that had been concluded between the parties was referred to a different Arbitrator, Mr Manase. His terms of reference encapsulated the respondent’s challenge to the earlier ‘retrenchment’ process concluded through Arbitrator Bvumbe’s award. They read as follows:</p> <p>“(i) Whether or not respondent`s purported retrenchment of applicant and the process that followed was lawful, and</p> <p>(ii)  Whether or not applicant is still an employee of respondent in terms of the law.”</p> <p> </p> <p> </p> <p>Arbitrator Manase held that the purported retrenchment of the respondent was null and void as it had not been approved by the Minister and therefore the respondent was still an employee of the appellant. He ordered that he be reinstated to his former employment with the appellant.</p> <p> </p> <p>Aggrieved by this decision, the appellant appealed to the Labour Court on the grounds that the Arbitrator erred in not finding that acceptance of the retrenchment package even on a purported “without prejudice” basis destroyed any future claims in that respect, by the respondent. The appellant also averred that the Arbitrator erred grossly at law in holding himself to have jurisdiction to determine the conclusiveness or otherwise of the award by Arbitrator Bvumbe. The Labour Court dismissed the appeal. Having unsuccessfully sought leave to appeal to this Court, in the Labour Court, leave was sought and granted by this Court on 14 December 2016. This Court is now seized with the appeal.</p> <p> </p> <p>It has been noted that in the Labour Court the appellant unsuccessfully argued that Arbitrator Manase lacked the jurisdiction to determine the lawfulness or otherwise of the award by Arbitrator Bvumbe. In other words, Arbitrator Manase, who at law enjoyed parallel jurisdiction with Arbitrator Bvumbe, could not competently interfere with the latter’s award.  The appellant, on appeal to this Court, did not directly allude to the matter in its grounds of appeal. In my view however, the question of Arbitrator Manase’s jurisdiction to hear the matter is an important question of law whose determination may effectively dispose of the appeal. In any case it is also important to consider the effect his award had on Arbitrator Bvumbe’s award.  It was also helpful to the court that detailed submissions on the matter were made by both parties in their heads of argument and in argument during the hearing of this appeal.</p> <p> </p> <p>Relying on the case of <em>Williams &amp; Anor v Msipha NO &amp; Ors</em> SC-22-10, the appellant correctly argued in its heads of argument that an appeal court:</p> <p>“must be able to intervene not only against the direct dictates of a judgment of the lower court, but also against its effect”</p> <p> </p> <p>However, before addressing the issue of Arbitrator Manase’s jurisdiction to hear the matter, it is my view that the nature and effect of the process of ‘retrenchment’ that the parties negotiated and acted upon, must be determined first.</p> <p> </p> <p>The appeal therefore raises two issues for determination:</p> <ol><li>Did the parties negotiate a retrenchment package in the manner dictated by the applicable law, and</li> <li>Did Arbitrator Manase have jurisdiction to determine the lawfulness or otherwise, of the process that culminated in the package of benefits being paid to the respondent?</li> </ol><p> </p> <p>In his heads of argument, the respondent correctly outlines the retrenchment procedure then applicable, as follows:</p> <p>“Thus, in case of agreement and forwarding of the agreement to the Retrenchment Board, the effective date of retrenchment would more or less coincide with the date of the final award ….  However, if there was no agreement within one month, the provisions of s 3(8) of S.I. 186/2003 would kick in, with the dispute to be resolved in terms of s 12 (C) of the Act. That is assessment of the matter by the Retrenchment Board and its recommendations to the Minister and finally the approval of the retrenchment package by the Minister, subject to any modifications she or he may make in terms of s 12 (C) (9) of the Act. Until then, the employees remain employees of the employer and entitled to their salaries and benefits”</p> <p> </p> <p> </p> <p>It is not in dispute that this process is not what the parties <em>in casu</em> engaged in. As indicated above the genesis of the dispute was a letter written to the respondent in June 2007, informing him of a restructuring exercise within the appellant, and the abolishment of his post. Thereafter the parties engaged in a process that they termed ‘retrenchment’ and in terms of which a package of benefits payable to the respondent, was negotiated. When a dispute arose as to the total package due to the respondent, the parties by agreement, referred the matter to Arbitrator Bvumbe, whose terms of reference have been set out above. According to the respondent’s own outline of the correct process to follow in the event of a retrenchment, this was the stage at which the parties would have referred the matter to the Retrenchment Board. They chose not to do so.</p> <p> </p> <p>Arbitrator Bvumbe prefixed his award with the following comment:</p> <p>“On this occasion (5 April 2008 the date of referral of the matter to him) the parties endorsed the referral to me as a single arbitrator. They also agreed on the terms of reference which were to be considered for the finalisation of the dispute between the parties, which were ….</p> <p>The parties concurred that the effective date of retrenchment would be the date of the arbitration award.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>This statement by the arbitrator significantly refers to ‘finalisation of the dispute’ between the parties. This suggests clearly that neither side contemplated engaging in the retrenchment process alluded to above. Their intention was to have the dispute relating to the benefits on which agreement had not been reached, finally determined by Arbitrator Bvumbe.</p> <p>     </p> <p>That this was the parties’ clear intention is borne out by their subsequent conduct. Firstly, following Arbitrator Bvumbe’s award, dated 24 October, 2008, the appellant on 30 March 2009 addressed a letter to the respondent’s legal practitioners, to the following effect:</p> <p>“Re: Retrenchment Package</p> <p> The above matter refers:</p> <p>Please find attached to this letter the Retrenchment offer for your client, Itayi for his signature. May we have your        response as a matter of urgency so that we put this matter to rest. “(<em>my emphasis</em>)</p> <p> </p> <p>This letter, as is evident, reinforced the intention to have the dispute resolved in terms of the arbitral award of Mr Bvumbe.</p> <p> </p> <p>Secondly, the respondent accepted the offer on 24 June 2009, in a letter written on his behalf by his legal practitioners. The letter in relevant part read as follows:</p> <p>“We write to advise that our client has since accepted the    retrenchment package by signing the letter. We attach        herewith a signed copy of your offer from our client for immediate processing, without prejudice …. Payment should be processed and deposited in our client’s     account by 30 June 2009, failure which(<em>sic</em>) interest and            damages shall be raised against Zesa Holdings in terms of the law.  We are also instructed to remind you to immediately communicate our client’s termination of employment on 31 March 2009 to his pension managers in order to facilitate immediate pension payments from two pension funds…” (<em>my emphasis</em>)</p> <p> </p> <p>The content and tone of this acceptance letter by the respondent in my view admits of no doubt as to the intention, by him as much as by the appellant, to bring finality to the dispute in this manner. This is regardless of some indications in the letter that the respondent had signed the ‘retrenchment’ package on a ‘without prejudice basis’. It is also significant that the only recourse that the respondent at that point contemplated in the event of the appellant’s failure to pay the package in question, was to sue the latter for ‘interest and damages’.  Sight must also not be lost of the fact that the respondent accepted the termination of his employment and expected immediate notification thereof to his two Pension Funds.</p> <p> </p> <p>Finally, it is not in dispute that the appellant thereafter paid, and the respondent received, the package that the parties had signed for.</p> <p> </p> <p>Against this background I have no doubt in my mind that the process engaged in by the parties, as outlined above, clearly speaks to:</p> <ul><li>Negotiations for a package to be paid to the respondent following the abolition of his employment post with the appellant;</li> <li>Agreed referral for final resolution of the dispute, to Arbitrator Bvumbe</li> <li>An offer made by the appellant to the respondent, of a package worked out in terms of the arbitral award;</li> <li>Acceptance in clear terms of the offer, by the respondent; and</li> <li>Implementation of the agreement through release of the relevant benefits, into the respondent’s bank account.</li> </ul><p> </p> <p> </p> <p>The issues listed above bear all the hallmarks of a contract negotiated, signed and perfected. Despite the parties’ loose usage of the term ‘retrenchment’ package, I am satisfied that the parties negotiated for and signed, an agreement for the termination of the respondent’s employment with the appellant. The agreement was entered into between two consenting parties and was signed freely and voluntarily. It was a contract like any other contract and can, therefore not be said to be unlawful, as the respondent now seeks to argue.</p> <p> </p> <p>Accordingly, I find that the parties neither contemplated nor engaged in a retrenchment process as outlined in the relevant law.</p> <p> </p> <p>This brings me to the second issue to be determined in this matter:</p> <p>“Did Arbitrator Manase have jurisdiction to determine the lawfulness or otherwise, of the process that culminated in the package of benefits being paid to the respondent?”</p> <p> </p> <p> </p> <p>Neither the parties nor Arbitrator Manase dispute that no appeal was filed against Arbitrator Bvumbe’s award. This was the award on the basis of which the package terminating the employment of the respondent was worked out, paid and accepted. The award is therefore extant, and has been fully implemented. In para (c) of his award, Arbitrator Manase correctly stated as follows:</p> <p>“Given the fact that Arbitrator Bvume’s award was neither challenged and set aside, it remains binding… I as an Arbitrator, cannot properly set aside a subsisting arbitral award by a brother arbitrator. The award however, was not conclusive and there were outstanding items for resolution and clarification.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>He clearly was aware of the legal position regarding his competency or lack thereof, to interfere with a fellow arbitrator`s decision. Despite this, he seemed to have entertained the notion that he could vary, amend or supplement the latter’s award. This is evidenced by the latter part of the statement cited above. This is clearly not permissible at law, as illustrated by the authorities cited below.</p> <p> </p> <p>Section 98(9) of the Labour Act [<em>Chapter 28:01</em>] provides that:</p> <p>“(9) In hearing and determining any dispute an arbitrator     shall have the same powers as the Labour Court.”</p> <p> </p> <p>Thus when an arbitrator makes an award, his position is akin to that of a court of law. A court is defined to mean all its judges sitting alone or with other judges. This is because they have the same powers and exercise parallel jurisdiction. Arbitrators are no different in this respect. Accordingly, the <em>res judicata </em>and<em> functus officio</em> legal principles will apply should the matter be brought before the same or a different judge, or in this case, arbitrator.</p> <p> </p> <p> The learned authors Herbstein &amp; Van Winsen “<em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em>” 5th Ed state that:</p> <p>“The general principle, now well established in our law, is   that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that the court thereupon becomes <em>functus officio</em>: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter ceases. The other equally important consideration is             the public interest in bringing litigation to finality. The parties must be assured that once an order of court has been made, it is final and they can arrange their affairs in accordance with that order.”</p> <p> </p> <p> </p> <p> </p> <p>In the case of <em>Kassim v Kassim</em> 1989 (3) ZLR 234 (H) at           p 242 C-D the court held that:-</p> <p>“In general, the court will not recall, vary or add to its own judgment once it has made a final adjudication on the merits.   The principle is stated in <em>Firestone South Africa         (Pvt) Ltd v Genticuro Ag</em> 1977 (4) SA 298 (A) at 306, where TROLLIP JA stated:</p> <p>‘The general principle, now well established in our law, is   that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes <em>functus officio</em>: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.’”</p> <p> </p> <p> </p> <p>                        Furthermore, in <em>Unitrack (Pvt) Ltd v Telone (Pvt) Ltd</em>          SC 10/18 MAVANGIRA AJA (as she then was) held as follows:</p> <p>“It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or      legal authority to re-examine or revisit that decision. Once a decision is made, the term “<em>functus officio</em>” applies to the court or judicial officer concerned.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>In his award, Mr Manase sought to reinstate into his former employment, an employee (the respondent) who had freely and consciously signed an agreement to terminate such employment, and accepted the benefits agreed to between the parties. He thus purported to revive a moribund employment contract as well as reverse the import of Arbitrator Bvumbe’s determination on the benefits payable to the respondent in terms of the supposed retrenchment agreement signed by the parties. No evidence was tendered that the respondent had paid back the amounts that he received. Arbitrator Manase’s award, therefore would have resulted in the respondent being paid essentially the same benefits, twice.</p> <p> </p> <p>Since Arbitrator Manase was not sitting as an appeal court, it was clearly not open to him to do as he purported.</p> <p> </p> <p>More confounding, in my view, is the fact that the parties in this matter agreed to refer the dispute to Arbitrator Manase. This was notwithstanding the common understanding by all that an Arbitrator who enjoys parallel jurisdiction with any other arbitrator can at law, neither set aside nor interfere in any manner with the award of another arbitrator. They also did this in full knowledge of the fact that the first arbitral award was extant, and that the agreement based on it had been fully implemented by the parties to the dispute.</p> <p> </p> <p>The respondent attempts to differentiate between the two arbitral awards as follows:</p> <p>“…. The court <em>a quo</em> did not err because the two awards dealt with separate and distinct causes of action. The Manase award dealt with the lawfulness of the retrenchment while the Bvumbe award dealt with a dispute over claimed contractual benefits and benefits to be included in a retrenchment package….” (<em>my emphasis</em>)  </p> <p> </p> <p> </p> <p>There can be no doubt that the ‘retrenchment’ referred to in this submission is the process, based on Arbitrator Bvumbe’s award, that culminated in the signing of the termination of employment agreement by the parties. As already stated it is evident that the parties loosely used the term ‘retrenchment’ when in fact all they signed was an agreement terminating the respondent’s employment with the appellant. This is the process that Arbitrator Manase was to review and whose lawfulness or otherwise he was to determine.</p> <p>I have found that the process did not amount to a retrenchment. I must make the point that even if it had been a retrenchment process, Arbitrator Manase would still have lacked the jurisdiction to determine its lawfulness or otherwise. Following upon the arbitral award handed down by Arbitrator Bvumbe, the matter became <em>res judicata</em>. By virtue of the fact that both arbitrators were endowed with the same jurisdictional powers, Arbitrator Manase was accordingly <em>functus officio</em> in relation to the same dispute. The first arbitral award could only be reviewed or set aside by a court of higher jurisdiction. Because that did not happen, that award stands as the one that finally determined the dispute, leaving no basis for interference therewith, by the second Arbitrator, Mr Manase. His attempt to do so was therefore of no force or effect.</p> <p> </p> <p>I find in the result that the court <em>a quo</em> misdirected itself in upholding Mr Manase’s award. The appeal therefore has merit and ought to succeed.</p> <p> </p> <p>Having determined that the parties effectively signed and honoured an agreement to terminate the employment of the respondent with the appellant, and that this circumstance constituted a final resolution of the dispute between them, it becomes unnecessary to consider the alternative ground of appeal relating to whether or not the respondent repudiated the employment contract.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In the premises, it is ordered as follows:</p> <ol><li>The appeal succeeds with costs</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol><p>“(i)       The appeal succeeds with costs.</p> <ul><li>The arbitral award by Arbitrator Manase dated July, 2013 be and is hereby set aside.”</li> </ul><p> </p> <p> </p> <p> </p> <p><strong>GUVAVA JA:                       </strong>I agree</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA:</strong>               I agree</p> <p> </p> <p> </p> <p> </p> <p><em>Dube Manikai Hwacha, </em>Appellant`s legal practitioners</p> <p><em>Munyaradzi Gwisai and Partners, </em>Respondent`s legal practitioners</p> <p>See macDonald v Canada (AG) (1994) 1 SCR 311 at 329</p> <p>The letter erroneously states that the offer letter was received on 24 June, 2009, when the legal practitioners’ date stamp on the latter document clearly indicates it was received on 30th March 2009</p> <p>This would, in any case not have changed the character and effect of the agreement, for that is not capable of being concluded on a “without prejudice” basis .  See <em>Yakub Mahomed v John Arnold Bredenkamp HH 130/16</em> where it was held as follows;</p> <p>“I also find persuasive the submission made on behalf of the plaintiff that an agreement cannot be without prejudice or privileged, only the negotiations can…”</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:57 +0000 Anonymous 10073 at http://zimlii.org St. Giles Medical Rehabilitation Centre v Patsanza (SC 59 of 2018, Case SC 668 of 2015, Ref Case LC/H/ 116 of 2013) [2018] ZWSC 59 (23 September 2018); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/59 <span class="field field--name-title field--type-string field--label-hidden">St. Giles Medical Rehabilitation Centre v Patsanza (SC 59 of 2018, Case SC 668 of 2015, Ref Case LC/H/ 116 of 2013) [2018] ZWSC 59 (23 September 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2300" hreflang="x-default">Contract (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2252" hreflang="x-default">Labour Act [Chapter 28:01]</a></div> <div class="field__item"><a href="/taxonomy/term/1981" hreflang="en">Termination of Employment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/59/2018-zwsc-59.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40438">2018-zwsc-59.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/59/2018-zwsc-59.pdf" type="application/pdf; length=240906">2018-zwsc-59.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE</strong><strong>   (46)</strong></p> <p> </p> <p> </p> <p><strong>ST. GILES     MEDICAL     REHABILITATION     CENTRE</strong></p> <p><strong>v</strong></p> <p><strong>LAMBERT     PATSANZA</strong></p> <p>                                                                       </p> <p>       </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GUVAVA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, 23 September 2016</strong></p> <p> </p> <p> </p> <p><em>S. Banda, </em>for the appellant</p> <p><em>W. Jiti, </em>for the respondent</p> <p> </p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a judgment of the Labour Court dated 27 September 2013.</p> <p> </p> <p> After hearing argument we made an order allowing the appeal in part and indicated that the reasons thereof would be availed in due course.  The reasons for that decision are set out below:</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p>The appellant engaged the respondent as a Finance and Administration Manager. The contract was subject to a three months’ probationary period.  The period of probation was effective from 28 February 2012 and was to end in May 2012.</p> <p>On 31 May 2012 the respondent was advised that his position was not going to be confirmed as his evaluation had not been satisfactory. The appellant however decided to extend the probation period by one month. This was in an attempt to allow the respondent to remedy the inconsistencies which had been noted by the appellant during his evaluation which had taken place at the beginning of May 2012. The respondent refused to accept an extension of the period of probation, arguing that he had successfully completed the accounts for 2011 and that he had subsequently been issued with a company car. It was his argument that the issuance of the company car confirmed that he was now a permanent employee. In spite of his protestations, the respondent continued to work for the duration of the extension.</p> <p> </p> <p>On 21 July 2012 the appellant wrote to the respondent advising him again that his probationary period had not been successful and gave him two weeks’ notice to terminate his services.</p> <p> </p> <p>The respondent declined to accept the two-week period of notice and argued that the termination amounted to an unfair dismissal. He argued that as a “permanent employee” he was entitled to three months’ notice of the termination of his employment.</p> <p> </p> <p>As the parties were unable to resolve the dispute, it was referred to an Arbitrator who found that the extension of the probationary period was unlawful.  The arbitrator made an award on 31 January 2013 in the following terms:</p> <ol><li>back-pay of salary and benefits from 1 July 2012 to the date of the award,</li> <li>the value of six months’ basic salary for compensation for unlawful termination of the employment contract,</li> <li>three months’ salary as notice pay which would incorporate cash <em>in lieu</em> of leave days; pension contributions; compensation for loss of the company vehicle; and 100 litres of fuel per month for the period from July 2012 until the date of the award.</li> </ol><p> </p> <p>The appellant was dissatisfied with the award and approached the court<em> a quo </em>seeking the setting aside of that determination and the confirmation of the termination of the respondent’s employment. The appeal was opposed by the respondent.</p> <p> </p> <p>The court <em>a quo</em> upheld the Arbitrator’s award and dismissed the appeal. The appellant noted an appeal against the decision of the court <em>a quo</em> on four grounds, namely:-</p> <p>“1. The court <em>a quo</em> erred on a point of law by holding that</p> <p>section 12(5) of the Labour Act does not confer a discretion to the employer <em>(sic)</em>to extend an employee’s probationary period and further that according to Labour Act, a probation period cannot be extended</p> <ol><li>The court <em>a quo</em> erred on a point of law by holding that by extending the probationary period, the employer had made the employees position permanent by operation of the law. The extension of probation does not amount to an election to permanently employ an employee on probation, where such extension has been explicitly communicated.</li> <li>The court <em>a quo</em> misdirected itself by completely ignoring that the parties’ employment relationship was governed by a contract of employment and that according to that contract of employment confirmation into a substantive position was to be done in writing and subject to a successful medical examination.</li> <li>The court <em>a quo</em> erred on a point of law by holding that the respondent was entitled to three (3) months’ notice, when he was in fact not a permanent employee.”</li> </ol><p> </p> <p> </p> <p><strong>ISSUES BEFORE THE COURT</strong></p> <p>It seems to me that three issues present themselves for determination. These are:-</p> <ol><li>The purpose of a period of probation.</li> <li>Whether s 12 (5) of the Labour Act permits an extension of a period of probation.</li> <li>The status of an employee who continues to work after the probationary period has elapsed.</li> </ol><p>I propose to deal with each of the issues in turn.</p> <p> </p> <ol><li><strong>The purpose of a period of probation</strong></li> </ol><p>The main reason for having a period of probation is now generally accepted. A probationary period is designed to function as a time when an employer can evaluate a “potential” employee before opting to accept him or her as a full time employee. During this period the employee is assessed and evaluated to determine his suitability for permanent employment. Professor Lovemore Madhuku in his book “<em>Labour Law in Zimbabwe</em>” at page 44 states as follows with regards to the purpose of probation:</p> <p>“A probationary employee is one who is in the initial period of his or her employment where his skill and abilities are being assessed. <strong>The probationary employment contract is separate from the second employment contract,</strong> which is conditional on successfully completing the probation ….”</p> <p> </p> <p> </p> <p>CHINHENGO J in <em>Madawo v Interfresh Limited</em> 2000 (1) ZLR 660 at 882 remarked as follows:</p> <p>“Probation is defined in the New English Dictionary as “The action or process of testing or putting to the proof … the testing or trial of a person’s conduct, character or moral qualification; a proceeding designed to ascertain these … for some position or office. I think these words very well describe the process of probation as commonly undergone by accepted candidates ….”</p> <p> </p> <p> </p> <p>Probation was expressed by NDOU J in the case of <em>Commercial Bank of Zimbabwe v Kwangwari</em> HH79/2003 as follows:</p> <p>“Probationary clauses provide for a trial period during which the reciprocal periods of notice required for termination are shorter, and which purportedly give both parties the right either to confirm or not to confirm the contract at the conclusion of the probationary period”</p> <p> </p> <p> </p> <p>It is apparent from the above that firstly, the employee must successfully complete the period of probation before he can be permanently employed. Secondly, that the probationary period is a separate and distinct contract. Thirdly, the contract of permanent employment only comes into operation once an employee has successfully completed the period of probation and finally, it is reciprocal in nature. In other words if an employee is dissatisfied with the employer he may also terminate the employment by giving the requisite notice.</p> <p> </p> <ol><li><strong>Whether the Labour Act permits an extension of a period of probation</strong></li> </ol><p>Section 12(5) of the Labour Act [<em>Chapter 9:16</em>] regulates issues of probation in the workplace.  The section reads as follows:</p> <p>“A contract of employment may provide in writing for a single, non-renewable probationary period …”</p> <p> </p> <p> </p> <p>This provision is clear and requires no interpretation. It seems to me that the provision provides that where an employer decides to include a probationary period in the contract of employment then that period is not renewable. The court <em>a quo</em> in my view correctly found that the use of the word “may” in the above section relates to the employer’s discretion to engage an employee either on probation or immediately into a substantive position. Once a probationary period is given by an employer then it can only be a “single, non-renewable” period. In this regard Professor Madhuku states:</p> <p>“This means that at the end of a probationary period the employer has two choices: either allow the probationary contract to lapse and let the employee go, or enter into a second employment contract with the employee. <strong>There is no room for renewal of the probationary contract.</strong>”</p> <p> </p> <p> </p> <p>This position was also set out in the case of <em>Kazembe v the Adult Literacy Organisation </em>SC 173/1994, where the court stated that once a probation period ends and the employer is dissatisfied with the probationer’s performance, all that the employer needs to do is to inform him that his services are no longer required and that would be the end of the matter.</p> <p> </p> <p>There are two ways in which an unsuccessful probationary employee can be dismissed. The first is to allow the probation period to expire naturally wherein the employee is released at the end of that period. The second is to release the probationary employee before the end of the probation period. Where the probationary period is cut short then the issue of notice arises and he must be given notice in terms of the contract.  (see<em> Time Bank of Zimbabwe v Nkosana Moyo HH26/02</em><strong>.</strong>)</p> <p> </p> <p>I do not accept Mr <em>Banda</em>’s submission that the appellant could extend the probationary period. The appellant relied on the position in<em> Kwangwari v Commercial Bank of Zimbabwe</em> (<em>supra</em>) where the court allowed the employer the discretion to extend a probationary period without the employee assuming substantive appointment to a permanent position. It is apparent that at the time that NDOU J dealt with the <em>Kwangwari</em> case, s 12(5) of the Labour Act had not come into operation.  This case came before the High Court in 2002. Section 12(5) of the Act was only enacted by amendment 17/2002 which was published and came into operation on 7 March 2003.</p> <p>In view of the above, it is therefore apparent that the appellant committed two errors.  It erred in extending the period of probation. It also erred in dismissing the respondent on two weeks’ notice which was not provided for in the contract of employment. </p> <p> </p> <p><strong>(3)</strong>                   <strong>What was the respondents’ employment status at the time of termination of the contract?</strong></p> <p>It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three month period of probation.</p> <p> </p> <p>                        Clearly, therefore, in these circumstances the court <em>a quo</em> was correct in finding that the respondent had become a permanent employee.</p> <p> </p> <p>However I am not satisfied that the respondent was entitled to the total award made by the Arbitrator.   As the respondent was now a permanent employee, the consequence of his dismissal which the Arbitrator found to be unlawful should have been reinstatement.  The remedy was not to dismiss him on three months’ notice. </p> <p> </p> <p>It was on the basis of the above that the appeal was allowed in part and the following order made:</p> <ol><li>The appeal against the judgment of the Labour Court be and is hereby allowed in part, with each party paying its own costs.</li> <li>The judgment of the court <em>a quo</em> is amended to read as follows:-</li> </ol><ul><li>The appeal is allowed in part, with each party paying its own costs.</li> <li>The award of the arbitrator in respect of the monetary award is set aside.</li> <li>The award is amended to read as follows:</li> </ul><ul><li>“The termination of the employment of the claimant is unlawful and is set aside.</li> <li>The respondent is ordered to reinstate the claimant into his former position without loss of salary and benefits.</li> <li>In the event that reinstatement is no longer possible, the respondent is to pay damages to the claimant as agreed upon between the parties or, that failing, as determined before me upon application.</li> <li>Each party pays its own costs</li> </ul><p><strong>GARWE JA:</strong>             I agree</p> <p><strong>UCHENA JA:</strong>           I agree</p> <p><em>Mambara &amp; Partners</em>, appellants’ legal practitioners</p> <p><em>Musendekwa – Mtisi</em>, respondents’ legal practitioner</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-0eb199408c2039a1e249bcd016baf6d93d5bc00ada9363d2eb7fb33d180158d2"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE</strong><strong>   (46)</strong></p> <p> </p> <p> </p> <p><strong>ST. GILES     MEDICAL     REHABILITATION     CENTRE</strong></p> <p><strong>v</strong></p> <p><strong>LAMBERT     PATSANZA</strong></p> <p>                                                                       </p> <p>       </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GUVAVA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, 23 September 2016</strong></p> <p> </p> <p> </p> <p><em>S. Banda, </em>for the appellant</p> <p><em>W. Jiti, </em>for the respondent</p> <p> </p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a judgment of the Labour Court dated 27 September 2013.</p> <p> </p> <p> After hearing argument we made an order allowing the appeal in part and indicated that the reasons thereof would be availed in due course.  The reasons for that decision are set out below:</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p>The appellant engaged the respondent as a Finance and Administration Manager. The contract was subject to a three months’ probationary period.  The period of probation was effective from 28 February 2012 and was to end in May 2012.</p> <p>On 31 May 2012 the respondent was advised that his position was not going to be confirmed as his evaluation had not been satisfactory. The appellant however decided to extend the probation period by one month. This was in an attempt to allow the respondent to remedy the inconsistencies which had been noted by the appellant during his evaluation which had taken place at the beginning of May 2012. The respondent refused to accept an extension of the period of probation, arguing that he had successfully completed the accounts for 2011 and that he had subsequently been issued with a company car. It was his argument that the issuance of the company car confirmed that he was now a permanent employee. In spite of his protestations, the respondent continued to work for the duration of the extension.</p> <p> </p> <p>On 21 July 2012 the appellant wrote to the respondent advising him again that his probationary period had not been successful and gave him two weeks’ notice to terminate his services.</p> <p> </p> <p>The respondent declined to accept the two-week period of notice and argued that the termination amounted to an unfair dismissal. He argued that as a “permanent employee” he was entitled to three months’ notice of the termination of his employment.</p> <p> </p> <p>As the parties were unable to resolve the dispute, it was referred to an Arbitrator who found that the extension of the probationary period was unlawful.  The arbitrator made an award on 31 January 2013 in the following terms:</p> <ol><li>back-pay of salary and benefits from 1 July 2012 to the date of the award,</li> <li>the value of six months’ basic salary for compensation for unlawful termination of the employment contract,</li> <li>three months’ salary as notice pay which would incorporate cash <em>in lieu</em> of leave days; pension contributions; compensation for loss of the company vehicle; and 100 litres of fuel per month for the period from July 2012 until the date of the award.</li> </ol><p> </p> <p>The appellant was dissatisfied with the award and approached the court<em> a quo </em>seeking the setting aside of that determination and the confirmation of the termination of the respondent’s employment. The appeal was opposed by the respondent.</p> <p> </p> <p>The court <em>a quo</em> upheld the Arbitrator’s award and dismissed the appeal. The appellant noted an appeal against the decision of the court <em>a quo</em> on four grounds, namely:-</p> <p>“1. The court <em>a quo</em> erred on a point of law by holding that</p> <p>section 12(5) of the Labour Act does not confer a discretion to the employer <em>(sic)</em>to extend an employee’s probationary period and further that according to Labour Act, a probation period cannot be extended</p> <ol><li>The court <em>a quo</em> erred on a point of law by holding that by extending the probationary period, the employer had made the employees position permanent by operation of the law. The extension of probation does not amount to an election to permanently employ an employee on probation, where such extension has been explicitly communicated.</li> <li>The court <em>a quo</em> misdirected itself by completely ignoring that the parties’ employment relationship was governed by a contract of employment and that according to that contract of employment confirmation into a substantive position was to be done in writing and subject to a successful medical examination.</li> <li>The court <em>a quo</em> erred on a point of law by holding that the respondent was entitled to three (3) months’ notice, when he was in fact not a permanent employee.”</li> </ol><p> </p> <p> </p> <p><strong>ISSUES BEFORE THE COURT</strong></p> <p>It seems to me that three issues present themselves for determination. These are:-</p> <ol><li>The purpose of a period of probation.</li> <li>Whether s 12 (5) of the Labour Act permits an extension of a period of probation.</li> <li>The status of an employee who continues to work after the probationary period has elapsed.</li> </ol><p>I propose to deal with each of the issues in turn.</p> <p> </p> <ol><li><strong>The purpose of a period of probation</strong></li> </ol><p>The main reason for having a period of probation is now generally accepted. A probationary period is designed to function as a time when an employer can evaluate a “potential” employee before opting to accept him or her as a full time employee. During this period the employee is assessed and evaluated to determine his suitability for permanent employment. Professor Lovemore Madhuku in his book “<em>Labour Law in Zimbabwe</em>” at page 44 states as follows with regards to the purpose of probation:</p> <p>“A probationary employee is one who is in the initial period of his or her employment where his skill and abilities are being assessed. <strong>The probationary employment contract is separate from the second employment contract,</strong> which is conditional on successfully completing the probation ….”</p> <p> </p> <p> </p> <p>CHINHENGO J in <em>Madawo v Interfresh Limited</em> 2000 (1) ZLR 660 at 882 remarked as follows:</p> <p>“Probation is defined in the New English Dictionary as “The action or process of testing or putting to the proof … the testing or trial of a person’s conduct, character or moral qualification; a proceeding designed to ascertain these … for some position or office. I think these words very well describe the process of probation as commonly undergone by accepted candidates ….”</p> <p> </p> <p> </p> <p>Probation was expressed by NDOU J in the case of <em>Commercial Bank of Zimbabwe v Kwangwari</em> HH79/2003 as follows:</p> <p>“Probationary clauses provide for a trial period during which the reciprocal periods of notice required for termination are shorter, and which purportedly give both parties the right either to confirm or not to confirm the contract at the conclusion of the probationary period”</p> <p> </p> <p> </p> <p>It is apparent from the above that firstly, the employee must successfully complete the period of probation before he can be permanently employed. Secondly, that the probationary period is a separate and distinct contract. Thirdly, the contract of permanent employment only comes into operation once an employee has successfully completed the period of probation and finally, it is reciprocal in nature. In other words if an employee is dissatisfied with the employer he may also terminate the employment by giving the requisite notice.</p> <p> </p> <ol><li><strong>Whether the Labour Act permits an extension of a period of probation</strong></li> </ol><p>Section 12(5) of the Labour Act [<em>Chapter 9:16</em>] regulates issues of probation in the workplace.  The section reads as follows:</p> <p>“A contract of employment may provide in writing for a single, non-renewable probationary period …”</p> <p> </p> <p> </p> <p>This provision is clear and requires no interpretation. It seems to me that the provision provides that where an employer decides to include a probationary period in the contract of employment then that period is not renewable. The court <em>a quo</em> in my view correctly found that the use of the word “may” in the above section relates to the employer’s discretion to engage an employee either on probation or immediately into a substantive position. Once a probationary period is given by an employer then it can only be a “single, non-renewable” period. In this regard Professor Madhuku states:</p> <p>“This means that at the end of a probationary period the employer has two choices: either allow the probationary contract to lapse and let the employee go, or enter into a second employment contract with the employee. <strong>There is no room for renewal of the probationary contract.</strong>”</p> <p> </p> <p> </p> <p>This position was also set out in the case of <em>Kazembe v the Adult Literacy Organisation </em>SC 173/1994, where the court stated that once a probation period ends and the employer is dissatisfied with the probationer’s performance, all that the employer needs to do is to inform him that his services are no longer required and that would be the end of the matter.</p> <p> </p> <p>There are two ways in which an unsuccessful probationary employee can be dismissed. The first is to allow the probation period to expire naturally wherein the employee is released at the end of that period. The second is to release the probationary employee before the end of the probation period. Where the probationary period is cut short then the issue of notice arises and he must be given notice in terms of the contract.  (see<em> Time Bank of Zimbabwe v Nkosana Moyo HH26/02</em><strong>.</strong>)</p> <p> </p> <p>I do not accept Mr <em>Banda</em>’s submission that the appellant could extend the probationary period. The appellant relied on the position in<em> Kwangwari v Commercial Bank of Zimbabwe</em> (<em>supra</em>) where the court allowed the employer the discretion to extend a probationary period without the employee assuming substantive appointment to a permanent position. It is apparent that at the time that NDOU J dealt with the <em>Kwangwari</em> case, s 12(5) of the Labour Act had not come into operation.  This case came before the High Court in 2002. Section 12(5) of the Act was only enacted by amendment 17/2002 which was published and came into operation on 7 March 2003.</p> <p>In view of the above, it is therefore apparent that the appellant committed two errors.  It erred in extending the period of probation. It also erred in dismissing the respondent on two weeks’ notice which was not provided for in the contract of employment. </p> <p> </p> <p><strong>(3)</strong>                   <strong>What was the respondents’ employment status at the time of termination of the contract?</strong></p> <p>It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three month period of probation.</p> <p> </p> <p>                        Clearly, therefore, in these circumstances the court <em>a quo</em> was correct in finding that the respondent had become a permanent employee.</p> <p> </p> <p>However I am not satisfied that the respondent was entitled to the total award made by the Arbitrator.   As the respondent was now a permanent employee, the consequence of his dismissal which the Arbitrator found to be unlawful should have been reinstatement.  The remedy was not to dismiss him on three months’ notice. </p> <p> </p> <p>It was on the basis of the above that the appeal was allowed in part and the following order made:</p> <ol><li>The appeal against the judgment of the Labour Court be and is hereby allowed in part, with each party paying its own costs.</li> <li>The judgment of the court <em>a quo</em> is amended to read as follows:-</li> </ol><ul><li>The appeal is allowed in part, with each party paying its own costs.</li> <li>The award of the arbitrator in respect of the monetary award is set aside.</li> <li>The award is amended to read as follows:</li> </ul><ul><li>“The termination of the employment of the claimant is unlawful and is set aside.</li> <li>The respondent is ordered to reinstate the claimant into his former position without loss of salary and benefits.</li> <li>In the event that reinstatement is no longer possible, the respondent is to pay damages to the claimant as agreed upon between the parties or, that failing, as determined before me upon application.</li> <li>Each party pays its own costs</li> </ul><p><strong>GARWE JA:</strong>             I agree</p> <p><strong>UCHENA JA:</strong>           I agree</p> <p><em>Mambara &amp; Partners</em>, appellants’ legal practitioners</p> <p><em>Musendekwa – Mtisi</em>, respondents’ legal practitioner</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:45 +0000 Anonymous 10066 at http://zimlii.org Drum City (Private) Limited v Garudzo (SC 57 of 2018, Civil Appeal 937 of 2017) [2018] ZWSC 57 (25 September 2018); http://zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/57 <span class="field field--name-title field--type-string field--label-hidden">Drum City (Private) Limited v Garudzo (SC 57 of 2018, Civil Appeal 937 of 2017) [2018] ZWSC 57 (25 September 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/57/2018-zwsc-57.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=51045">2018-zwsc-57.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/57/2018-zwsc-57.pdf" type="application/pdf; length=278123">2018-zwsc-57.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><a name="_Hlk507840611" id="_Hlk507840611"><strong>REPORTABLE </strong></a><strong>       (47)  </strong></p> <p> </p> <p><strong>DRUM     CITY     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>BRENDA     GARUDZO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, JUNE 26, 2018 &amp; SEPTEMBER 25, 2018</strong></p> <p> </p> <p><em>V. Shamu</em>, for the appellant</p> <p>No appearance, for respondent</p> <p>             </p> <p><strong>GWAUNZA DCJ</strong></p> <p>[1]        This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant’s former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.</p> <p>           </p> <p><strong>FACTUAL CONSPECTUS</strong></p> <p>[2]        The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3 986-61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.</p> <p> </p> <p>[3]        Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>], (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her and further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23 253-34.</p> <p> </p> <p>[4]        Before the labour officer, the parties did not agree on Ms Khan’s monthly salary, as the appellant alleged that it was US$750-00 while Ms Khan argued that it was US$1500 - 00. The respondent ruled in favour of Ms Khan on this point and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages <em>in lieu</em> of reinstatement amounting to a total of US$9000-00.</p> <p> </p> <p>[5]        Subsequently, the labour officer applied to the Labour Court in terms of s 93 (5a) of the Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court <em>a quo</em> after hearing oral argument from the appellant, granted an order confirming the ruling.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT </strong></p> <p>[6]        The appellant was aggrieved by the decision of the court <em>a quo</em> and has appealed against it to this Court. It argues in the main that the court <em>a quo</em> erred in simply confirming the respondent’s award to Ms Khan of US$9 000-00 as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property and in addition, had failed to avail herself for the hearing which led to her dismissal.</p> <p> </p> <p>[7]        The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.  Ms Khan, was not cited in the appeal before this Court. Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.</p> <p>           </p> <p><strong>SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS</strong></p> <p>[8]        Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court <em>a quo</em> and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.  The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of s 93 (5a) of the Act. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer’s draft ruling in terms of s 93(5b) of the Act.</p> <p> </p> <p>[9]        It is noted that prior to the Labour Amendment Act No. 5 of 2015, labour disputes of right would go before a labour officer for conciliation, and if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party on the other hand, had the right to appeal against the award to the Labour Court.</p> <p> </p> <p>The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of s 93 (5a) and (5b) of the Labour Act was meant to address this mischief.</p> <p> </p> <p>[10]      Subsections 93(5a) and (5b) provide as follows:</p> <p>(5a)      A labour officer who makes a ruling and order in terms of ss (5)(c) shall as                       soon as practicable-</p> <p>(a)        <strong>make an affidavit to that effect incorporating</strong>, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and</p> <p>(b)       <strong>lodge, on due notice to the employer or other person against</strong> <strong>whom</strong>                  the ruling and order is made  (“the respondent”), an application to the               Labour  Court, together with the affidavit and a claim for the costs of                    the application (which shall not exceed such amount as may be                               prescribed), <strong>for an order directing the respondent</strong> by a certain                                     day (the “restitution day”) not being earlier than thirty days from the                      date that the application is set down for hearing (the                                                 “return day” of the application) <strong>to do or pay what the labour officer                 ordered</strong> under ss (5)(c)(ii) and to pay the costs of the application.</p> <p>(5b)      <strong>If, on the return day of the application, the respondent makes no          appearance</strong> or, after a hearing, the Labour Court <strong>grants the application                 for the order with or without amendment</strong>, the  labour officer concerned    shall,    if the <strong>respondent does not comply fully or at all with the order            by        the restitution day, submit the order for registration </strong>to whichever court    would have had  jurisdiction to make such an order had the matter been     determined by             it, and thereupon the order shall have effect, for purposes of            enforcement, of a civil judgment of the appropriate court. (<em>my emphasis</em>)</p> <p> </p> <p>[11]      My interpretation of the two provisions cited suggests the following procedural steps;</p> <p>a)         the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based,</p> <p>b)         the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).</p> <p>c)         the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.</p> <p>d)         should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.</p> <p>e)         on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment,</p> <p>f)         thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;</p> <p>g)         upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.</p> <p> </p> <p> </p> <p>[12]     It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling      made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one <em>in casu</em> in circumstances where the labour officer finds that the dispute of right in question <strong>‘must be resolved against any employer or other person in a specific manner …’</strong></p> <p>  </p> <p>[13]      Without a clear pronouncement to that effect, there can in    my view be no doubt that       reference to ‘any person’ in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the       confirmation and registration of a draft ruling by the labour officer, which is made in         favour of an employer and against an aggrieved employee.              It follows that the Labour           Court has no jurisdiction to entertain such a matter and should on that basis properly           decline to hear it.</p> <p> </p> <p>[14]      It is noted further that the wording of ss (5b), <em>albeit</em> not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.</p> <p> </p> <p>[15]      It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.</p> <p> </p> <p>[16]      The employee on these grounds can in my view properly apply to be joined to the confirmation proceedings in terms of r 33(2) of the Labour Court Rules, SI 150/17. The joinder of a party <em>mero motu</em> by the court is not expressly provided for in r 33, however. I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court in a deserving case, to order <em>mero motu</em> the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule, <em>audi alteren partem.</em></p> <p> </p> <p>[17]      The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities.</p> <p>Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, <em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em> (5th edn, Juta &amp;Co Ltd, Cape Town, 2009) vol. 1 at page 215 explain non-joinder by stating as follows:</p> <p>“A third party who has, or may have a direct and substantial interest in any          order the court might make in proceedings or if such an order cannot be          sustained or      carried into effect without prejudicing that party, is a necessary party and should be      joined in the proceedings, unless the court is satisfied that such a person has waived      the right to be joined. …  in fact, when such person is a necessary party in the sense             that the court will not deal with the issues without a joinder being effected, and no           question of discretion or convenience arises.” (<em>my emphasis)</em></p> <p> </p> <p> </p> <p>The meaning of direct and substantial interest is explained at page 217 to 218 as follows:</p> <p>“A ‘direct and substantial interest’ has been held to be ‘an interest in the right      which is the subject-matter of the litigation and not merely a financial interest            which is only an indirect interest in such litigation’. It is ‘a legal interest in the subject      matter of the litigation, excluding an indirect commercial interest only’. The         possibility of such an interest is sufficient, and it is not necessary for the court to             determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter      of the   litigation but also in the outcome of it.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>[18]      It hardly needs emphasis that, <em>albeit</em> not applicable <em>in casu,</em> an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.  The employee in any case would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order <em>mero motu</em> that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent. </p> <p> </p> <p>[19]      That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates;</p> <p>“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder,          the court should raise it <em>mero motu</em> to safeguard the interest of third parties and it   should decline to hear the matter until such joinder has been effected, or until the         court is satisfied that the third parties have consented to be bound by the    judgment or have waived their right to be joined.”</p> <p> </p> <p>When this is related to the circumstances of this case, it cannot in my view be contested that the joinder of the employee, Ms Khan, was necessary.</p> <p> </p> <p>[20]      While it is noted <em>in casu</em> that the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other, before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling.  It then essentially weighed the respondent’s submissions against what was contained in the affidavit of the labour officer, and made its determination. The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the <em>quantum</em> of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case ‘argued’ for her by the labour officer.</p> <p> </p> <p>[21]      There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings.  Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, ss (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from ss (5b) that before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is in reality not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer’s ruling should properly be the province of the person directly affected by it, that is, the employee concerned. In my view, the Labour Court’s confirmation or non-confirmation of the ruling after effectively hearing one side of the dispute is at best an irregularity and at worst a travesty of justice.</p> <p> </p> <p>[22]      Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee’s satisfaction. It shuts the door for instance on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that <em>quantum,</em> in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were ‘cross oppose’ the confirmation proceedings in the desired respect.</p> <p> </p> <p>[23]      Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court for one reason or the other, the employee might wish to take up the matter on appeal. He would however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order, on his or her behalf.</p> <p> </p> <p>[24]      Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.  One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent. This is what happened <em>in casu</em>. All too often this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument.  Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer’s appearance.</p> <p> </p> <p>[25]      Ordinarily where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee’s knowledge. The injustice of such an outcome needs no emphasis.</p> <p> </p> <p>[26]      Finally, the appearance of the labour officer as the respondent in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer’s competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis?  It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.</p> <p> </p> <p>[27]      Other aspects of the procedure suggested by ss (5a) and (5b) of s 93 of the Act merit some comment.  Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court’s confirmation of the labour officer’s ruling.</p> <p> </p> <p>[28]      Further, while ss (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution. Without being cited as a party, there would be confusion as to whether the ‘claimant’, that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite <em>locus standi</em>, and more so because ss (5b) does not mandate him to do so. The danger of the Labour Court’s order being rendered a <em>brutum fulmen </em>becomes real.</p> <p> </p> <p>[29]      In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature.  The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[30]      When all is said and done and in view of the foregoing, it is my finding that there was       a fatal non-joinder of the employee, Ms Khan, to the proceedings <em>a quo</em>. Such proceedings can therefore not be allowed to stand.</p> <p> </p> <p>In the result, the following order is made:</p> <p>1.   The appeal be and is hereby allowed.</p> <ol><li>The proceedings and judgment of the court <em>a quo</em> be and are hereby quashed.</li> <li>The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.</li> <li>Each party shall bear its own costs.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA:                   </strong>I agree</p> <p>           </p> <p> </p> <p> </p> <p><strong>MAKONI JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><em>Vasco Shamu and Associates</em>, appellant’s legal practitioners</p> <p>This paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights</p> <p>Such employee would, it seems, have to pursue other avenues to appeal against the draft ruling.</p> <p>The hearing is certainly not an appeal against nor a review of, the Labour Officer’s ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer’s ruling.</p> <p>See  Herbstein and van Winsen’s  ‘The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa’ (<em>supra</em>) at  pages 208 to 209.</p> <p>Before the court <em>a quo </em>the labour officer briefly repeated the facts of the dispute and the details of the award she had made.  </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-5b754f30d48202677498ac045416478e723d6dd6707ac0ecfeab6e759deb85a5"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><a name="_Hlk507840611" id="_Hlk507840611"><strong>REPORTABLE </strong></a><strong>       (47)  </strong></p> <p> </p> <p><strong>DRUM     CITY     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>BRENDA     GARUDZO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, JUNE 26, 2018 &amp; SEPTEMBER 25, 2018</strong></p> <p> </p> <p><em>V. Shamu</em>, for the appellant</p> <p>No appearance, for respondent</p> <p>             </p> <p><strong>GWAUNZA DCJ</strong></p> <p>[1]        This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant’s former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.</p> <p>           </p> <p><strong>FACTUAL CONSPECTUS</strong></p> <p>[2]        The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3 986-61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.</p> <p> </p> <p>[3]        Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>], (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her and further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23 253-34.</p> <p> </p> <p>[4]        Before the labour officer, the parties did not agree on Ms Khan’s monthly salary, as the appellant alleged that it was US$750-00 while Ms Khan argued that it was US$1500 - 00. The respondent ruled in favour of Ms Khan on this point and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages <em>in lieu</em> of reinstatement amounting to a total of US$9000-00.</p> <p> </p> <p>[5]        Subsequently, the labour officer applied to the Labour Court in terms of s 93 (5a) of the Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court <em>a quo</em> after hearing oral argument from the appellant, granted an order confirming the ruling.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT </strong></p> <p>[6]        The appellant was aggrieved by the decision of the court <em>a quo</em> and has appealed against it to this Court. It argues in the main that the court <em>a quo</em> erred in simply confirming the respondent’s award to Ms Khan of US$9 000-00 as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property and in addition, had failed to avail herself for the hearing which led to her dismissal.</p> <p> </p> <p>[7]        The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.  Ms Khan, was not cited in the appeal before this Court. Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.</p> <p>           </p> <p><strong>SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS</strong></p> <p>[8]        Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court <em>a quo</em> and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.  The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of s 93 (5a) of the Act. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer’s draft ruling in terms of s 93(5b) of the Act.</p> <p> </p> <p>[9]        It is noted that prior to the Labour Amendment Act No. 5 of 2015, labour disputes of right would go before a labour officer for conciliation, and if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party on the other hand, had the right to appeal against the award to the Labour Court.</p> <p> </p> <p>The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of s 93 (5a) and (5b) of the Labour Act was meant to address this mischief.</p> <p> </p> <p>[10]      Subsections 93(5a) and (5b) provide as follows:</p> <p>(5a)      A labour officer who makes a ruling and order in terms of ss (5)(c) shall as                       soon as practicable-</p> <p>(a)        <strong>make an affidavit to that effect incorporating</strong>, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and</p> <p>(b)       <strong>lodge, on due notice to the employer or other person against</strong> <strong>whom</strong>                  the ruling and order is made  (“the respondent”), an application to the               Labour  Court, together with the affidavit and a claim for the costs of                    the application (which shall not exceed such amount as may be                               prescribed), <strong>for an order directing the respondent</strong> by a certain                                     day (the “restitution day”) not being earlier than thirty days from the                      date that the application is set down for hearing (the                                                 “return day” of the application) <strong>to do or pay what the labour officer                 ordered</strong> under ss (5)(c)(ii) and to pay the costs of the application.</p> <p>(5b)      <strong>If, on the return day of the application, the respondent makes no          appearance</strong> or, after a hearing, the Labour Court <strong>grants the application                 for the order with or without amendment</strong>, the  labour officer concerned    shall,    if the <strong>respondent does not comply fully or at all with the order            by        the restitution day, submit the order for registration </strong>to whichever court    would have had  jurisdiction to make such an order had the matter been     determined by             it, and thereupon the order shall have effect, for purposes of            enforcement, of a civil judgment of the appropriate court. (<em>my emphasis</em>)</p> <p> </p> <p>[11]      My interpretation of the two provisions cited suggests the following procedural steps;</p> <p>a)         the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based,</p> <p>b)         the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).</p> <p>c)         the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.</p> <p>d)         should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.</p> <p>e)         on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment,</p> <p>f)         thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;</p> <p>g)         upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.</p> <p> </p> <p> </p> <p>[12]     It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling      made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one <em>in casu</em> in circumstances where the labour officer finds that the dispute of right in question <strong>‘must be resolved against any employer or other person in a specific manner …’</strong></p> <p>  </p> <p>[13]      Without a clear pronouncement to that effect, there can in    my view be no doubt that       reference to ‘any person’ in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the       confirmation and registration of a draft ruling by the labour officer, which is made in         favour of an employer and against an aggrieved employee.              It follows that the Labour           Court has no jurisdiction to entertain such a matter and should on that basis properly           decline to hear it.</p> <p> </p> <p>[14]      It is noted further that the wording of ss (5b), <em>albeit</em> not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.</p> <p> </p> <p>[15]      It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.</p> <p> </p> <p>[16]      The employee on these grounds can in my view properly apply to be joined to the confirmation proceedings in terms of r 33(2) of the Labour Court Rules, SI 150/17. The joinder of a party <em>mero motu</em> by the court is not expressly provided for in r 33, however. I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court in a deserving case, to order <em>mero motu</em> the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule, <em>audi alteren partem.</em></p> <p> </p> <p>[17]      The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities.</p> <p>Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, <em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em> (5th edn, Juta &amp;Co Ltd, Cape Town, 2009) vol. 1 at page 215 explain non-joinder by stating as follows:</p> <p>“A third party who has, or may have a direct and substantial interest in any          order the court might make in proceedings or if such an order cannot be          sustained or      carried into effect without prejudicing that party, is a necessary party and should be      joined in the proceedings, unless the court is satisfied that such a person has waived      the right to be joined. …  in fact, when such person is a necessary party in the sense             that the court will not deal with the issues without a joinder being effected, and no           question of discretion or convenience arises.” (<em>my emphasis)</em></p> <p> </p> <p> </p> <p>The meaning of direct and substantial interest is explained at page 217 to 218 as follows:</p> <p>“A ‘direct and substantial interest’ has been held to be ‘an interest in the right      which is the subject-matter of the litigation and not merely a financial interest            which is only an indirect interest in such litigation’. It is ‘a legal interest in the subject      matter of the litigation, excluding an indirect commercial interest only’. The         possibility of such an interest is sufficient, and it is not necessary for the court to             determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter      of the   litigation but also in the outcome of it.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>[18]      It hardly needs emphasis that, <em>albeit</em> not applicable <em>in casu,</em> an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.  The employee in any case would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order <em>mero motu</em> that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent. </p> <p> </p> <p>[19]      That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates;</p> <p>“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder,          the court should raise it <em>mero motu</em> to safeguard the interest of third parties and it   should decline to hear the matter until such joinder has been effected, or until the         court is satisfied that the third parties have consented to be bound by the    judgment or have waived their right to be joined.”</p> <p> </p> <p>When this is related to the circumstances of this case, it cannot in my view be contested that the joinder of the employee, Ms Khan, was necessary.</p> <p> </p> <p>[20]      While it is noted <em>in casu</em> that the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other, before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling.  It then essentially weighed the respondent’s submissions against what was contained in the affidavit of the labour officer, and made its determination. The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the <em>quantum</em> of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case ‘argued’ for her by the labour officer.</p> <p> </p> <p>[21]      There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings.  Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, ss (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from ss (5b) that before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is in reality not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer’s ruling should properly be the province of the person directly affected by it, that is, the employee concerned. In my view, the Labour Court’s confirmation or non-confirmation of the ruling after effectively hearing one side of the dispute is at best an irregularity and at worst a travesty of justice.</p> <p> </p> <p>[22]      Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee’s satisfaction. It shuts the door for instance on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that <em>quantum,</em> in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were ‘cross oppose’ the confirmation proceedings in the desired respect.</p> <p> </p> <p>[23]      Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court for one reason or the other, the employee might wish to take up the matter on appeal. He would however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order, on his or her behalf.</p> <p> </p> <p>[24]      Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.  One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent. This is what happened <em>in casu</em>. All too often this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument.  Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer’s appearance.</p> <p> </p> <p>[25]      Ordinarily where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee’s knowledge. The injustice of such an outcome needs no emphasis.</p> <p> </p> <p>[26]      Finally, the appearance of the labour officer as the respondent in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer’s competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis?  It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.</p> <p> </p> <p>[27]      Other aspects of the procedure suggested by ss (5a) and (5b) of s 93 of the Act merit some comment.  Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court’s confirmation of the labour officer’s ruling.</p> <p> </p> <p>[28]      Further, while ss (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution. Without being cited as a party, there would be confusion as to whether the ‘claimant’, that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite <em>locus standi</em>, and more so because ss (5b) does not mandate him to do so. The danger of the Labour Court’s order being rendered a <em>brutum fulmen </em>becomes real.</p> <p> </p> <p>[29]      In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature.  The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[30]      When all is said and done and in view of the foregoing, it is my finding that there was       a fatal non-joinder of the employee, Ms Khan, to the proceedings <em>a quo</em>. Such proceedings can therefore not be allowed to stand.</p> <p> </p> <p>In the result, the following order is made:</p> <p>1.   The appeal be and is hereby allowed.</p> <ol><li>The proceedings and judgment of the court <em>a quo</em> be and are hereby quashed.</li> <li>The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.</li> <li>Each party shall bear its own costs.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA:                   </strong>I agree</p> <p>           </p> <p> </p> <p> </p> <p><strong>MAKONI JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><em>Vasco Shamu and Associates</em>, appellant’s legal practitioners</p> <p>This paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights</p> <p>Such employee would, it seems, have to pursue other avenues to appeal against the draft ruling.</p> <p>The hearing is certainly not an appeal against nor a review of, the Labour Officer’s ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer’s ruling.</p> <p>See  Herbstein and van Winsen’s  ‘The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa’ (<em>supra</em>) at  pages 208 to 209.</p> <p>Before the court <em>a quo </em>the labour officer briefly repeated the facts of the dispute and the details of the award she had made.  </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:40 +0000 Anonymous 10063 at http://zimlii.org