Contract (EMPLOYMENT) https://old.zimlii.org/taxonomy/term/10405/all en Tobacco Processors Zimbabwe (Pvt) Ltd v Mutasa & 11 Others (SC 12-21, Civil Appeal No. SC 613/19) [2021] ZWSC 12 (15 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/12 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 12/21</p> <p>Civil Appeal No SC 613/19     </p> <p><strong>REPORTABLE  </strong><strong>  (11)</strong></p> <p> </p> <p> </p> <p><strong>TOBACCO     PROCESSORS     ZIMBABWE     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>(1)     TONGOONA     MUTASA      (2)     ROBIN     MATORA     (3)     ALEXIOUS SVINURAI     (4)     TIRANOS     MADZANA     (5)     SLADGE     MUSANHU    (6)     CHAKANYUKA     TSVINA     (7)     TRYNOS     BHUNU     (8)     VERYSON HLOZANI        (9)     ANTONY     MURINGISI     (10)     ELPHAS     UTETE    (11)     WILLARD     MARUFU     (12)     MICHAEL     MUKUNGWA</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAVANGIRA JA, MAKONI JA &amp; CHATUKUTA AJA</strong></p> <p><strong>HARARE:     24 JULY 2020 &amp; 15 MARCH, 2021</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Mpofu </em>and<em> T. Nyamagura, </em>for the appellant</p> <p><em>C. Mucheche,</em> for the respondents</p> <p> </p> <p> </p> <p><strong>MAKONI JA:  </strong>This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council- Tobacco Grievance and Disciplinary Committee’s (‘NEC GDC Committee’) finding that the appellant tacitly renewed the respondents’ contracts of employment.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The following facts are common cause. The respondents were employed by the appellant on two-year fixed contracts beginning 1 May 2011 to 30 April 2013. After the expiry of  their  contracts of employment, they continued to work for the appellant for eleven months following which the appellant offered them new contracts with the same terms as the expired ones. The respondents signed the new contract which effectively regularised their employment in retrospect for the period of <a name="_Hlk48491707" id="_Hlk48491707">1 May 2013 to 30 April 2015.  </a></p> <p>Upon expiry of the contracts, on 30 April 2015, the appellant retained the respondents until 22 June 2015 on the same terms as the expired contracts. It then  offered them one-year fixed-term contracts. The proposed contracts  had a two-months probation clause and other less favourable conditions. The respondents rejected the appellant’s offer. The appellant terminated their contracts of employment by letter dated 7 July 2015 on the basis that the negotiations between the parties had collapsed.</p> <p> </p> <p>Aggrieved by the termination of their employment, the respondents noted a grievance of unfair dismissal with the appellant’s Works Council. The Works Council upheld the decision by the appellant’s Human Resources department to offer the appellants one-year contracts after the expiry of the two-year contracts. It reasoned that there was no legal impediment to the appellant replacing the expired two-year contracts with other contracts which  had different terms and conditions from the expired contracts. The Work’s Council further found that the respondents suffered no prejudice as they were paid for the period they worked whilst the parties were negotiating.</p> <p> </p> <p>Thereafter, the respondents appealed to the NEC GDC Committee. They submitted that in instances where an employer allows an employee to work after a fixed-term contract had expired, the contract is deemed to have been tacitly relocated on the same terms and conditions. Therefore, they submitted,  there was no basis for the new contracts as there had been tacit renewal. They also averred that the alleged negotiations were inconsequential as they ensued after the tacit renewal.</p> <p> </p> <p>In response, the appellant submitted that the NEC <a name="_Hlk49184838" id="_Hlk49184838">GDC </a>Committee had no power to interfere with the findings of facts made by the lower tribunal unless the findings were outrageous in their defiance of logic. The appellant contended that the two-month delay in notifying the respondents of the new offer  could not be inferred to mean there was tacit renewal. It did not intend to renew the two-year contracts.</p> <p> </p> <p>The NEC GDC ruled in favour of the respondents. It held that tacit relocation could be safely presumed since the appellant did not communicate its intention to change the terms of the respondents’ contracts before their termination and that the respondents were engaged on the same terms and conditions  as before. It accordingly ordered the reinstatement of the respondents for the unexpired period of their contracts without loss of pay and benefits or payment of their salaries and benefits up to 30 April 2017.</p> <p> </p> <p>Aggrieved by this decision, the appellant appealed to the Labour Court (the court <em>a</em> <em>quo</em>) on the ground that the NEC GDC grossly misdirected itself when it made a finding that there was a tacit renewal of the respondents' two-year employment contracts simply because the appellant allowed the respondents to continue reporting for duty after the expiry of their contracts. It argued that where there are clear indications that the other party did not intend to be bound by the old contract, there could not be tacit relocation of a contract that extended beyond the contractual period. The appellant submitted that tacit relocation could not occur where the parties are engaged in negotiations over a new agreement. It contended that the respondents were allowed to work and were paid for the period when their new contracts were being attended to.</p> <p> </p> <p>To the contrary, the respondents argued that there was tacit relocation in that the appellant allowed them to continue working on the same conditions from 1 May 2015 to 22 June 2015  notwithstanding that their contracts expired on 30 April 2015. They also emphasized that the parties did not agree on a new arrangement. The respondents further indicated that the appellant had the option of terminating their contracts of employment but allowed them to render their services and subsequently introduced unfavourable conditions. It was submitted that a finding against tacit relocation in the circumstances of the case would be contrary to social justice and fair labour standards of equity and fairness in the workplace.</p> <p> </p> <p><strong>DETERMINATION OF THE COURT <em>A QUO</em></strong></p> <p>The court dealt with the issue of whether or not the NEC GDC erred in finding that the contracts of employment had been tacitly relocated. In doing so, it considered the employment status of the respondents at the time their contracts were terminated. The court <em>a quo</em> found that there was no evidence to the effect that the new contracts were as a result of any negotiation process as no negotiations were done from 1 May to 22 June 2015. It reasoned that the old contracts were tacitly relocated in that the appellant had allowed the respondents to continue working on the same terms and conditions as before, and did not communicate any intention to change the terms and conditions of the employment.</p> <p> </p> <p>The court <em>a quo</em> also had regard to the precedent that the appellant did not immediately terminate or renew the respondent’s contracts but allowed them to continue working, for some period, on the same terms and conditions of the expired contracts. It reasoned that had the appellant not wished to be bound by the old expired contracts, it would have expressed that intention. The court accordingly concluded that the NEC GDC Committee’s decision did not constitute an outrageous defiance of logic since the facts indicated that there was tacit relocation of the two year contracts.</p> <p> </p> <p>Aggrieved by that decision the appellant noted the present appeal on the following grounds:</p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>“Having accepted that the fixed term contracts between appellant and each of the various respondents had come to an end and that new fixed term contracts have been offered within two months of the expiry of respondent’s contracts, the court <em>a quo</em> erred in finding not withstanding those agreed facts, that the old contracts had been relocated.</li> <li>The court <em>a quo</em> erred in not coming to the conclusion that the negotiation that took place after the expiry of the contracts were such as negated any finding that there was an extension of the contractual relationship between the parties by the <em>quasi</em> mutual <em>assent</em>.</li> <li>The court <em>a quo</em> erred in imposing upon appellant a contract it had not concluded to prejudice the clear terms it had actually offered. (<em>sic</em>)</li> <li>Respondents having rejected the terms of the contract offered by appellant, the court <em>a quo</em> erred in concluding that respondents had a contract to enforce.”</li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUBMISSIONS BEFORE THIS COURT</strong></p> <p>At the hearing, <em>Mr  Mpofu</em>, for the appellant submitted that the court<em> a quo</em> asked itself the wrong question and ultimately gave itself the wrong answer. The wrong question was whether it had been shown that there had been negotiations between the parties from the <a name="_Hlk48412730" id="_Hlk48412730">1 May 2015 to the 22 June 2015 and if not what the effect of the absence of negotiations, during that period, would be.</a> The court<em> a quo’s</em>  <em>ratio</em>  was that upon the expiry of the contract they only engaged in negotiations after a period of six weeks. Because of that silence there was tacit relocation of the contract. He contended that the real dispute between the parties was not that the respondents’ contracts had been relocated but that the respondents were aggrieved by the terms of the new contracts. Mr<em> Mpofu</em> submitted that the respondents admitted that there were negotiations and that they did not refuse to sign the one-year contracts but were looking forward to working under the old two-year contracts.</p> <p> </p> <p>Mr Mpofu further contended that a holistic analysis of the facts would show that relocation of contracts in 2015 could not have been the appellant’s intention. The parties knew of the need for a written contract at all material times as evidenced by the fact that in 2013 the respondents worked for eleven months without contracts and later signed contracts backdated to the period when they were without contracts. The parties haggled over the terms of the one year contracts as the employees did not like the new terms of the contract. They did not argue that the old contracts had relocated. To confirm the appellant’s position some of the employees signed the one year contracts.</p> <p> </p> <p>He concluded by saying that tacit relocation can not be inferred from the facts of this matter. On being asked  the date when the negotiations started he was unable to pinpoint a date. He however submitted that even if there were no negotiations between 1 May and 20 June 2015 a tacit relocation could not be inferred when the parties subsequently negotiated. He further submitted that the fact that parties were negotiating shows that there was no intention on the part of the appellant to revert to the old contract. He relied for that proposition on the case of <em>Justin Kwangwari v Commercial Bank of Zimbabwe</em> HH 79/03. He submitted that there is no period set in our law between the expiry of a fixed term contract and the conclusion of a new one for it to be held that there was tacit relocation. He urged that the court to considers all the facts holistically in order to draw inferences consistent with the proven facts.</p> <p> </p> <p>On being asked what would be the status of the employees in the 7 weeks, before the offer, he submitted that the status was determined by the new contract.</p> <p> </p> <p>Mr<em>  Mucheche</em>, for the respondents, submitted that the facts of the matter point to tacit relocation. He indicated that the root of the dispute lies in the determination of the respondents’ employment status in the 7 week period. Accordingly, he referred to s 12 (1) of the Labour Act [<em>Chapter 28:01</em>]( The Act), for the proposition that the  legislature envisaged the existence of ‘deemed contracts’ in respect of an employee who works for an employer and is receiving or entitled to receive any remuneration notwithstanding that such contract has not been reduced to writing. He also referred s 12 (2) of the Act, which,  so he argues, demands mandatory compliance by the employer to inform the employee in writing the period in terms of which they are engaged and s 12(3)(a) of the Act which provides  that where a contract does not specify its duration or date of termination, it is deemed to be one without a limit of time.</p> <p> </p> <p>As such, he argued, the legislature sought to protect employees from unscrupulous employers who have more bargaining power than the employees. He emphasized that there was tacit relocation in that the respondents reported for work and were remunerated under the old contracts. He further indicated that the respondents’ concerns did not only relate to their disgruntlement with the new offer but also spoke to the issue of tacit relocation. He further submitted that the appellant’s offer of new contracts of employment was immaterial to the concept of tacit relocation. Additionally, he stated that the one-year contracts offered by the appellant were unjust, unfair and violated the respondents’ right to fair and safe labour practices and standards provided for in s 65 of the Constitution of Zimbabwe, 2013.</p> <p> </p> <p>In rebuttal Mr <em>Mpofu </em>submitted that there can be a delay after the expiry of the contract and the delay does not amount to relocation. It would be wrong to say once there is a delay then s12  of the Act is the  answer. He submitted that s12 uses “shall” in a directory sense and not in a peremptory manner. Failure to comply with it does not render conduct void. He concluded by saying that s12 of the Act  is what the employer was complying with in the 7 weeks.</p> <p> </p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>From a consideration of the grounds of appeal raised and the submissions made, one issue falls for determination which is:</p> <p>Whether or not the court <em>a quo</em> erred in finding that the contracts of employment in question had been  tacitly relocated</p> <p> </p> <p> </p> <p>A reading of the record reflects that the <em>ratio</em> of the court <em>a quo</em>’s ruling was that the respondents’ continued rendering of services from 1 May 2015 to 22 June 2015 in terms of the expired contracts constituted tacit relocation of the contracts by the appellant.</p> <p> </p> <p>That tacit relocation was at the centre of the parties’ dispute is also evidenced in the way the matter progressed before the various <em>fora</em>. This will be shown by a perusal of the minutes of the appeal hearing of 26 October 2015 before the Work’s Council to the respondents’ appeal before the NEC GDC Committee and the subsequent proceedings in the court <em>a quo</em>.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>It is settled law that a fixed-term contract of employment automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. (See <em>ZIMRA v Mudzimuwaona</em> SC 4/18). However, in certain instances, despite the expiry of the period of employment, the employer-employee relationship may be found to exist owing to the parties’ conduct under the concept of tacit relocation.</p> <p> </p> <p>Tacit relocation, as it applies to contracts of employment, entails that where an employee’s fixed-term contract expires without renewal and  the employee continues to render his services to the employer with the employer paying the previously agreed remuneration, the expired contract is deemed to be relocated. Therefore, the employee is deemed to be employed on the same terms and conditions as the previous contract.</p> <p> </p> <p>In <em>Gumbo v Air Zimbabwe (Pvt) Ltd </em>2000 (2) ZLR 126 at 130 A-D the court made the following pertinent remarks regarding the principle of tacit relocation;</p> <p>“Finally, the best that can be said for the applicant is that in certain cases akin to the present there is a presumption that when the parties continue the employer-employee relationship beyond the contractual period without agreeing new terms there is a tacit relocation of the expired contract on the same terms and for the same duration. In other words, all things being equal, it could be said that on 1 October 1999, the applicant commenced a new probationary period. However, this presumption does not operate when it is clear that one of the parties has no intention of continuing on the terms of the expired contract. See <em>Lilford v Black</em> 1943 SR 46 at 47, where BLAKEWAY J said:</p> <p> </p> <p>‘The renewal of a lease or of a contract for services to be performed can take place either by express agreement or tacitly. If, after the expiration of the period provided for the duration of the contract, the parties continue their relationship without any fresh agreement the law presumes, in the absence of indications to the contrary, that they have agreed to enter upon a new lease on the same terms as the expired lease. But this presumption does not operate when it is clear that the parties or one of them does not intend to carry on with the contract on the old terms.”’ (Emphasis added)</p> <p> </p> <p> </p> <p>John Grogan in his book “<em>Workplace Law”</em> 8th ed at pages 41-42 states the following:</p> <p> </p> <p>“If after the agreed date for the termination of the contract the employee remains in service and the employer continues to pay the agreed remuneration, the contract is deemed to have been tacitly renewed, provided that an intention to renew is consistent with the parties’ conduct. <em>The relocated contract will continue on exactly the same terms and conditions as the previous fixed-term contract</em><em>, except that the duration of the contract need not be the same as that of the original contract; the life of the relocated contract must be determined in light of the particular circumstances of each case.” (emphasis added) </em></p> <p> </p> <p>In <a name="_Hlk49160356" id="_Hlk49160356"><em>Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods </em></a><em>CC &amp; Ors </em>2002(1) SA 822(SCA) at 825 D-F the court held:</p> <p>“After the termination of the initial agreement and prior to this letter the parties (in the light of the facts recited) <a name="_Hlk49163254" id="_Hlk49163254">conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.</a> Taken together, those facts establish a tacit relocation of a franchise agreement (comparable to a tacit relocation of a lease) between the appellant and <em>Sirad (Shell South Africa (Pty) Ltd v Bezuidenhout and Others</em> 1978 (3) SA 981 (N) 984B-E). <a name="_Hlk49159960" id="_Hlk49159960">A tacit relocation of an agreement is a new agreement and not a continuation of the old agreement </a>(<em>Fiat S A v Kolbe Motors</em> 1975 (2) SA 129 (O) 139D-E; Shell 985B-C).  The fact that the appellant had forgotten that the agreement had lapsed is beside the point because in determining whether a tacit contract was concluded a court has regard to the external manifestations and not the subjective workings of minds (Fiat S A 138H -139D).” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>The principle that can be drawn from the cited authorities is that an inference of tacit relocation is dependent upon the continued existence of an employer-employee relationship after the expiration of the contract. The employee will continue rendering his services to the employer who in turn pays remuneration in terms of the expired contract. Tacit relocation is based on the intention of the parties which must be consistent with their conduct. The court, in determining such an issue, considers all the facts holistically as it draws inferences which are consistent with the proved facts.</p> <p> </p> <p>The principle of tacit relocation of contracts of employment appears to be embodied in statute, in particular s 12 of the Labour Court Act [<em>Chapter 28:01</em>] which provides:</p> <p>“12 Duration, particulars and termination of employment contract</p> <p>(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.</p> <p>(2) An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars—</p> <p>(a) the name and address of the employer;</p> <p>(b) the period of time, if limited, for which the employee is engaged;</p> <p>(c) the terms of probation, if any;</p> <p>(d) the terms of any employment code;</p> <p>(e) particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid;</p> <p>(f) particulars of the benefits receivable in the event of sickness or pregnancy;</p> <p>(g) hours of work;</p> <p>(h)particulars of any bonus or incentive production scheme;</p> <p>(i) particulars of vacation leave and vacation pay;</p> <p>(j) particulars of any other benefits provided under the contract of employment.</p> <p>(3) A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time:</p> <p>Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.</p> <p>(3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is—</p> <p>(a) fixed by the appropriate employment council; or</p> <p>(b) prescribed by the Minister, if there is no employment council for the undertaking concerned, or where the employment council fixes no such period; and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who are engaged without limit of time.”</p> <p> </p> <p> </p> <p> </p> <p>Section 12(2) has been interpreted to merely impose an obligation on the employer to supply the information and does not require the parties to sign a written contract. See <em>Rumbles v Kwa Bat Marketing (Pty) Ltd</em> (2003) 8 BLLR 811 LC. The statement of particulars is not the contract itself nor is it even conclusive evidence of the contract. See L. Madhuku, <em>Labour Law in Zimbabwe,</em> 2015 at p 31.</p> <p>However, a proper construction of s 12(1) yields the result that where an employee renders services in return for remuneration, a contract of employment exists notwithstanding that such a contract has not been reduced to writing. Tacit relocation is therefore presumed.</p> <p> </p> <p>This is made clearer by the provisions of s 12(3a) which states that a fixed term contract shall be deemed to be a contract without limit of time upon the expiry of such period of continuous service.</p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>A determination of whether a written contract was automatically renewed in accordance with the principle of tacit relocation is a question of fact which has to be answered after an analysis of the particular facts and circumstances of each  case. (See <em>Sun International (South Africa) Ltd v Crocodile Enterprises </em>[2014] ZANWHC 52).</p> <p> </p> <p> </p> <p>In <em>casu</em>, it is not in dispute that the parties’ relationship was governed by a written contract of employment which terminated by effluxion of time on 30 April 2015. As at that date, the respondents would have ceased to be the appellant’s employees. However, the appellant allowed the respondents to continue working on the old terms and conditions of their contracts until 22 June 2015 when it then offered the respondents  one-year contracts with less favourable conditions. It can be reasonably inferred from this conduct of the parties that a new contract had come into existence by the principle of tacit relocation. </p> <p> </p> <p>Applying the <em>dicta</em> in <em>Golden Fried Chicken </em>case, <em>supra</em>, that tacit relocation of an agreement is a new agreement and not a continuation of the old agreement, it follows that a new agreement between the parties came into effect on 1 May 2015 owing to the appellant’s conduct of retaining the respondents in its employ on the same terms and  conditions of the expired contracts. Such a finding would have resolved the matter; however, a secondary issue arises from the parties’ submissions.</p> <p> </p> <p>The issue for consideration is the effect of the alleged negotiations, if any, on the relocated contract. This is necessitated by the appellant's position that the existence of negotiations regarding a new contract negates any finding to the effect that the old contracts were relocated. It is the appellant's position that the engagements between the parties after the expiration of the contract are a clear indication that it had no intention of continuing on the old terms. It relied on  communication by the appellant’s Human Resources Manager dated 7 July 2015 informing the respondents that the negotiations had collapsed, thus a new contract would not materialize and the Work’s Council determination to that effect.</p> <p> </p> <p>Per<em> contra</em>, the respondents aver that negotiations regarding the new offer made by the appellant did not have any legal effect on tacit relocation as a new contract had already materialised. In their written submissions, they aver that the purported negotiations were induced by duress as the appellant’s Human Resources’ Manager threatened to dismiss them if they did not abandon the claim for tacit relocation and dispense with the services of their legal practitioners. As such, they submitted that the 'alleged collapse of negotiations' in the circumstances, could not be a basis for the termination of employment.</p> <p> </p> <p>Since tacit relocation is inferred from the presumed intention of the parties to the contract and their conduct, where it is established that both parties accepted that the old contract had terminated and engaged in negotiations regarding a new contract, tacit relocation will be negated. This is for the reason that neither of the parties would have conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.</p> <p> </p> <p>In this regard, the court <em>a quo</em> made a factual finding that there was no evidence to the effect that there were any negotiations between the parties from 1 May 2015. It further found that although the appellant may have intended to terminate the  contracts, it failed to communicate that intention. It also took into account the manner in which the parties dealt with the same issue in the past. When the initial two year contracts expired the employer did not immediately renew the contracts. It merely allowed the employees to continue rendering services on the same terms and conditions of the expired contracts. It only regularised the contracts after 11 months.</p> <p> </p> <p>It is settled law that an appellate court may only interfere with the decision reached by a lower court based on factual findings where gross misdirection has been established. [See <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S)]. The appellant has not alleged such a gross misdirection which necessitates this court’s interference.</p> <p> </p> <p>More importantly, there is nothing on record to show that the parties engaged in negotiations during the period 1 May 2015 to 22 June 2015 when they were without contracts. There is no evidence that during this period the appellant  communicated to the respondents its intention as to whether or not the two-year contracts would be renewed  or terminated. The first meeting on record occurred in the appellant’s board room on 29 June 2015, notably after the period upon which the respondents base their claim for tacit relocation.   This is followed by the appellant’s letter of 7 July 2015 indicating the collapse of the alleged negotiations. Given this, the court <em>a quo</em>’s finding cannot be assailed. Its decision was based on a correct application of the principle of tacit relocation as enunciated in the <em>Gumbo</em> case, <em>supra</em>.</p> <p> </p> <p>The fact of the matter is that for the two-month period, that is 1 May 2015 to 22 June 2015, the conduct of the parties reflects that they intended to be bound by the expired contracts. Those contracts were therefore tacitly relocated and were to expire after two years, just like the expired contracts. In the circumstances of this case, a mere attempt to negotiate a new contract does not operate to vary an existing binding contract. The appellant’s new offer thus amounted to an attempt to unilaterally vary the respondents’ relocated contracts.</p> <p> </p> <p>This is a classical case of the application of subsections 12(1) and (3a) of the Labour Act which seek to protect employees by estopping an employer from alleging the non-existence of a contract of employment where there has been continued service in terms of an expired contract. Mr <em>Mpofu</em> argued that it would be wrong to invoke s 12 everytime there is a delay in renegotiating an expired contract. He contended that s 12 uses “shall” in a directory sense and not in peremptory terms.</p> <p> </p> <p>It is the generally accepted rule of interpretation that the use of the word “shall” as opposed to “may” is indicative of a peremptory intent on the part of the legislature. Failure to comply with the mandatory dictates of law renders the act done a nullity. However, where the legislature has not explicitly provided that non-compliance is fatal, there is a presumption that the legislature left it to the courts to determine the consequences of non-compliance.</p> <p> </p> <p>In <em>Shumba &amp; Anor v The Zimbabwe Electoral Commission &amp; Anor</em>  SC 11/08 at p 21 the court had occasion to deal with the issue of interpreting a Statute that does not prescribe the consequences of non-compliance with a statutory provision. In interpreting the provisions of the Zimbabwe Electoral Commission Act, CHIDYAUSIKU CJ remarked as follows at pp. 21-23 of the cyclostyled judgment:</p> <p>"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature’s intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature’s intention to make a provision directory.   In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal.   In other instances, the legislature specifically provides that failure to comply is not fatal.   In both of the above instances no difficulty arises.   The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.</p> <p>In the present case, the consequences of failure to comply with the provisions of s 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out. In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.</p> <p> </p> <p>            The learned author Francis Bennion in his work <em>Statutory Interpretation</em> suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines.   He had this to say at pp 21-22:</p> <p>            'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.”</p> <p>           </p> <p>In <em>Sutter v Scheepers</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> the court gave guidelines on how the real intention of legislature can be arrived at. These were summarised in <em>Pio v Franklin NO and Another</em> 1949 (3) SA 442 (C) as follows:</p> <p>“(1)     The word shall when used in a statute is rather to be considered as peremptory, unless there are other circumstances which negative this construction.</p> <p> (2)      If a provision is couched in a negative form, it is to be regarded as a peremptory rather than a directory mandate.</p> <p>(3)     If a provision is couched in positive language and there is no sanction added in case the requisites are not carried out, then the presumption is in favour of an intention to make the provision only directory.</p> <p>(4)      If when we consider the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.</p> <p>(5)     The history of the legislation also will afford a clue in some cases.”</p> <p> </p> <p>The principle which comes out of the guidelines is that where strict adherence to the wording of a statute leads to an injustice or even fraud, in instances where no penalty is prescribed, it may be desirable to lean in favour of making the provision directory.</p> <p> </p> <p>From the cited authorities, it is the general position that the use of the word ‘shall’ in a statutory provision requires mandatory compliance. Where the penalty for infraction of the provision is not explicitly stated, it is for the courts to determine what the consequences of failure to comply should be. In doing so, the court must interrogate the purpose of the relevant statute and pronounce a penalty which is proportionate to the mischief the legislature sought to remedy.</p> <p> </p> <p>It is my considered view that both provisions are peremptory owing to the specific use of the word “shall” which has mandatory connotations. Section 12(1) provides:</p> <p>“12 Duration, particulars and termination of employment contract</p> <p>(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”</p> <p> </p> <p> </p> <p> </p> <p>It is accepted that there is no explicit obligation on an employer under this provision to reduce a contract into writing. However, that fact alone does not render the provision directory. The use of the word “shall” after a description of a factual set of facts in an employment set up followed by the pronouncement of a specific outcome is indicative of the fact that the legislature intended the provision to be peremptory. In enacting s 12(1), it appears that the legislature envisaged a situation where services are rendered in return for remuneration but the recipient of the services later disputes the existence of a contract of employment.</p> <p>The peremptory nature of s 12(1) is not dependent on whether or not a particular act is done which in this case would be a mandate on the employer to reduce a contract into writing. The peremptory nature of the provision lies in the deemed existence of a contract of employment which follows the rendering of services and remuneration for such services. Once it is established that services have been rendered and there is a correlative entitlement to remuneration or actual remuneration, a contract is deemed to be in existence. It is <em>prima</em> <em>facie</em> proof of employment.</p> <p> </p> <p>A similar interpretation can be ascribed to s 12 (3).  The peremptory nature of the provision stems from the fact that a contract is deemed to be without limit of time where no specific details of its duration are provided. The same applies to a casual worker who continues rendering services notwithstanding the expiry of the specific period for which he was engaged. Therefore the onus to disprove the continued existence of the contract rests on the party disputing its existence.</p> <p> </p> <p>It is my considered view that the legislature must have been cognisant of the fact that employees are vulnerable under some unscrupulous employers, hence the use of such peremptory provisions in  s 12 of the Act.</p> <p> </p> <p> </p> <p>Having said the above,  the circumstances of this case fall into the ambit of the sentiments of the court in <em>Melamed and Hurwitz v Vorner Investments (Pty) Ltd</em> <a href="http://www.saflii.org/cgi-bin/LawCite?cit=1984%20%283%29%20SA%20155" title="View LawCiteRecord">1984 (3) SA 155</a> (A) at 165B-C: that:</p> <p>“…a court may hold that a tacit contract has been established where, by a process of inference, it concludes that the most plausible probable conclusion from all the relevant proved facts and circumstances is that a contract came into existence …”</p> <p> </p> <p>Applying this approach to the matter at hand, an inference of tacit relocation was justified on the facts of this case. The court <em>a quo</em>’s finding that that respondents’ contracts were tacitly renewed from 1 May 2015 is unassalable. Therefore, the appellant’s termination of the respondent’s contracts of employment in the circumstances was grossly irregular.</p> <p> </p> <p>                        An employer clearly cannot terminate a contract that has expired even though it has been tactly renewed</p> <p> </p> <p>The appeal  therefore lacks merit and ought to be dismissed. Costs will follow the cause.</p> <p> </p> <p>It is accordingly ordered as follows:</p> <p>“The appeal is dismissed with costs.”</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA                            </strong>I agree     </p> <p>  </p> <p><strong>CHATUKUTA AJA                        </strong>I agree</p> <p> </p> <p><em>Gill, Godlonton &amp; Gerrans</em>, appellant’s legal practitioners</p> <p> </p> <p><em>Caleb Mucheche &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> (1932 AD 165 at pp. 173, 174)</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/12/2021-zwsc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=63066">2021-zwsc-12.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/12/2021-zwsc-12.pdf" type="application/pdf; length=495109">2021-zwsc-12.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract-employment-0">Contract (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/termination-employment">Termination of employment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-service">Termination of service</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Thu, 03 Jun 2021 10:54:36 +0000 Sandra 10019 at https://old.zimlii.org Lungu And Others v RBZ (SC 26-21, Civil Appeal No. SC 548/19) [2021] ZWSC 26 (01 April 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/26 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>  (25)             </strong></p> <p> </p> <p> </p> <p> </p> <p><strong>JOSEPH     LUNGU     &amp;    OTHERS </strong></p> <p><strong>v</strong></p> <p><strong>RESERVE     BANK     OF     ZIMBABWE</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA, MAVANGIRA JA &amp; MAKONI JA</strong></p> <p><strong>HARARE:     12 JUNE 2020 &amp; 1 APRIL 2021</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>T. Mpofu, </em>for the appellants</p> <p><em>T. Magwaliba,</em> for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>MAKONI JA:           </strong></p> <p>On 26 January 2017, this Court in SC 1/17, adjudicating over the parties’ dispute, remitted the matter to the Labour Court (the court <em>a quo</em>) for a determination of the following issues:                                                </p> <p>“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010 and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”</p> <p> </p> <p> </p> <p>                        After considering the parties’ submissions and evidence led, the court <em>a quo</em> dismissed the appellants’ claim against the respondent. The court <em>a quo</em> held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded. This is an appeal against that judgment.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months. The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.  In July 2010, the respondent, 1078 of its employees and its workers’ committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees’ contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent’s employees.</p> <p> </p> <p>Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system. In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.</p> <p> </p> <p>Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal. A second arbitrator, (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.</p> <p> </p> <p>On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants’ contract of employment was terminated.</p> <p> </p> <p>Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants’ claim. Irked by that decision, the appellants appealed to this Court which remitted the matter to the court <em>a quo</em> for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.</p> <p> </p> <p>In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced. Additionally, the court reflected that the Labour Court, failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage. It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants’ claim before the arbitrator. As a result it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement. The court further reasoned that it appeared common cause that the present appellants were part of the 1078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement.  The court concluded as follows:</p> <p>“In the circumstances, it seems just and equitable that this matter be remitted to the court <em>a qu</em>o to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent’s employees, including the appellants <em>in casu</em>. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”</p> <p> </p> <p>Hence the proceedings in the court <em>a quo</em> which are the subject of this appeal.</p> <p> </p> <p><strong>PROCEEDINGS IN THE COURT <em>A QUO</em> </strong></p> <p>The remittal proceedings commenced with the appellants’ statement of claim, to which the affidavit of Joseph Lungu, the first appellant was attached. Mr Lungu averred that the appellants were part of the 1078 workers in whose favour the arbitral award by Nasho was made.  In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.</p> <p> </p> <p>The respondent’s notice of opposition was supported by affidavits from different personnel in the respondent’s employ. The first deponent was Mr Rwatirera, a member of the respondent’s Works Council that negotiated the September 2010 Works Council Agreement. He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.  He thus, denied approving or signing the list produced by the appellants.</p> <p> </p> <p>Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent non-managerial employees and not fixed-term contract employees since the latter’s terms and conditions were regulated by their individual contracts of employment and were not subject to any Work’s Council negotiations nor Worker’s Committee representation. He also averred that it was generally accepted by the respondent, the then Worker’s Committee representatives, the general body of the respondent’s permanent employees and most of the fixed-term contract employees that fixed-term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.  He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250.00 per month well after the September 2010 Agreement was concluded.</p> <p> </p> <p>The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work’s Council Agreement were intended to apply to permanent employees in grades 1 to level 2 and not to fixed-term contract employees. The third deponent, E Makaha, a former vice-chairman of the Worker’s Committee and a member of the Works Council confirmed Mr Mugabe’s averments.</p> <p> </p> <p>The fourth deponent was Mr Mavengano, the former Vice Secretary of the Worker’s Committee and a member of the Works Council who authored the list dated 12 September 2012. He disputed the authenticity of the list produced by the appellants. The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker’s Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits. In response, the first appellant disputed the respondent’s averments in their totality.</p> <p> </p> <p>At the hearing, the respondent took a point <em>in limine</em> that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order. To the contrary, counsel for the appellants argued, that the order in  SC 1/17, which remitted the matter to the court <em>a quo</em>,  was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement. The court <em>a quo</em> upheld the preliminary objection and expunged the affidavit of the first appellant from the record.</p> <p> </p> <p>Thereafter, two witnesses testified for the appellants. The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants’ list. The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho, following an address by one Ziki, a member of the then Worker’s Committee.</p> <p> </p> <p>The respondent led evidence through Mr Rwatirera who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent’s practice that fixed-term employees were excluded from the Works Council. Work’s Council members were voted into office by permanent members of staff only. He also testified that the Workers Committee only represented permanent members of staff. He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after September 2010 Works Council Agreement was concluded.  He reiterated that all the employees on fixed term contracts were not part of the Nasho proceedings.</p> <p>       </p> <p>                               </p> <p><strong>DETERMINATION OF THE COURT <em>A QUO</em></strong></p> <p>The court <em>a quo </em>dealt with the issue of whether or not the appellants had discharged the <em>onus</em> on them of proving that they were included in the September 2010 Works Council Agreement. The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement and sworn evidence from the signatories to the Agreement. The relevant clause on which the appellants base their claim provides as follows:</p> <p>“The Works Council resolved to recommend to the board that</p> <ul> <li>A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month.)</li> <li>A thirteenth cheque should be paid to all employees for the same period.” (emphasis added)</li> </ul> <p>                                       </p> <p> </p> <p>Regarding the September 2010 Works Council Agreement, the court <em>a quo</em> found that the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term to those contracted for casual work or seasonal work. Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct. The court then held that the provisions of the September 2010 works council agreement did not assist the appellants to discharge their <em>onus</em>.</p> <p> </p> <p>Concerning the minutes accompanying the Agreement, the court <em>a quo </em>found that they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed-term or permanent employment. Accordingly, it was unable to decide whether the appellants were included in the term ‘employees’ as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the <em>onus</em> on them.</p> <p> </p> <p>As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council. It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal. The court <em>a quo</em> further found that in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement. Further, the authenticity of the list of names relied upon by the appellants was put in issue.</p> <p> </p> <p>After analysing the list tendered by the appellants, the court remarked that on a balance of probabilities, the appellant’s names were interposed on an existing list. It opined that the list on which the appellant’s names appeared might have been a combination of documents that were prepared for different purposes. In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho. The court concluded that the appellants had not been able to discharge the <em>onus</em> of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.  It then dismissed the appellants’ claim with costs.</p> <p> </p> <p>This decision prompted the appellants to note the present appeal on the following grounds:</p> <ol> <li>“The court <em>a quo</em> erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.</li> <li>A fortiori, the court <em>a quo</em> erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.</li> <li>The court <em>a quo</em> seriously misdirected itself such misdirection amounting to an error in law in not requiring respondent to account for the 1079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (<em>sic</em>).</li> <li>Having found that the agreement on which appellants sued and the minutes giving birth to it related and made reference to “all employees”, the court <em>a quo</em> erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words “all employees”.</li> <li>The court <em>a quo</em> erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.</li> <li>The court <em>a quo</em> erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.</li> <li>The court <em>a quo</em> seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”</li> </ol> <p> </p> <p><strong>SUBMISSIONS BEFORE THIS COURT</strong></p> <p>Mr<em> Mpofu,</em> for the appellants, argued that the court <em>a quo</em> misdirected itself in ignoring the fact that the only list that contained the names of the 1079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants. He submitted that the failure by the respondent to produce the original list of 1079 employees, covered by that Agreement that it relied on, but instead attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants. He further submitted that since the respondent had not disputed the authenticity of the list of 1079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.</p> <p> </p> <p> </p> <p>Mr<em> Mpofu</em> also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting and the Minutes that followed was unambiguous and applied to all the respondent’s employees without discrimination. This, he submitted, was supported by the fact that during the dollarisation period, all the respondent’s employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees’ contracts of employment regardless of whether they were permanent or on fixed term contracts. As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants. Further, that regard being had to s 5 of the Labour Court Act [<em>Chapter 28:01</em>], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.</p> <p> </p> <p>                        Mr <em>Mpofu</em> also submitted that the court <em>a quo</em> erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants’ evidence. He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim. He also submitted that the court <em>a quo</em> should not have found that the list of 1079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.</p> <p> </p> <p> </p> <p>He also submitted that the Works council minutes refer to “all employees”. There was no application to rectify the minutes and it leads to one conclusion that they applied to all employees. He further contended that there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.</p> <p> </p> <p> </p> <p>Conversely, Mr<em> Magwaliba</em>, for the respondent, submitted that the court <em>a quo</em> could not be faulted in finding that the appellants had failed to discharge the <em>onus</em> upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement. He contended that the <em>onus</em> was on the appellants to prove that they were covered by the Agreement.</p> <p> </p> <p>He submitted that the court <em>a quo</em> was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants’ evidence was struck out. It was also his argument that the court <em>a quo</em> had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.</p> <p> </p> <p> </p> <p>Furthermore, he submitted that the court <em>a quo </em>having found that the text used in the Works Council Meeting and the subsequent Minutes did not help the appellants’ case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1079 employees who appeared before Arbitrator Nasho.</p> <p> </p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:</p> <p><strong>WHETHER THE COURT <em>A QUO</em> ERRED IN FAILING TO MAKE A SPECIFIC FINDING ON WHETHER OR NOT THE APPELLANTS WERE COVERED BY THE WORKS COUNCIL AGREEMENT OF SEPTEMBER 2010.</strong></p> <p> </p> <p> </p> <p>In determining this issue, it is necessary to first consider the import of the order in SC 1/17 remitting the matter to the court <em>a</em> <em>quo</em>. That order enjoined the court <em>a quo</em> to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants and if so, the quantum thereof. Put differently, the court <em>a quo</em> had to determine if the appellants were included in that Agreement.</p> <p> </p> <p>                        An examination of the court <em>a quo</em>’s ruling reflects that the court <em>a quo</em> did not make this finding. Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement as directed by this Court under SC 1/17, the court <em>a quo</em> remarked that it was unable to decide whether or not the appellants were included under the agreement. The court <em>a quo</em> then invoked the principle of <em>onus</em> to the effect that the appellants failed to prove that they were covered by the 2010 agreement. The court <em>a quo’s</em> decision was premised on the inability to resolve the issues in dispute. I regurgitate the relevant portions of the court <em>a quo</em>’s judgment:</p> <p>(1) The Specific provisions of the Works Council Agreement of September 2010</p> <p> </p> <p>“In our view the text of the Works Council meeting Resolutions of September 2010 does not resolve the issue.” <strong>The use of “all employees” leaves the Court unable to decide which of the two meanings propounded by the parties is correct</strong>. It therefore follows that provisions of the Works Council Agreement of 2010 does not help the Applicants to discharge the onus upon them.”</p> <p> </p> <p>2) The Minutes Accompanying the Agreement</p> <p>“The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010. <strong>The Court is unable to decide whether the Applicants were included in the term employees as it appears in the minutes.</strong> The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them” (emphasis added)</p> <p> </p> <p>It follows that the court <em>a quo</em> failed to make a determination on the pertinent issue upon which the matter was remitted. The court <em>a quo</em>’s inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.</p> <p> </p> <p> In <em>PG Industries (Zimbabwe) Limited v Bvekerwa &amp; Ors</em> SC 53/16 at pages 7-8, the court opined on the effect of a court’s failure to determine an issue in dispute as follows:</p> <p>“The position is settled that where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute.  The failure to resolve the dispute vitiates the order given at the end of the proceedings.  Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue.  In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”(Emphasis added)</p> <p> </p> <p> </p> <p>In <em>casu</em>, the court <em>a quo</em> whilst accepting the parties’ dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement. The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.</p> <p> </p> <p>The irregularity is apparent in the court <em>a quo</em>’s assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.</p> <p> </p> <p> </p> <p> The finding by the court <em>a quo</em> that the appellants failed to discharge the <em>onus</em> placed on them to prove that they were covered by the 2010 agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the agreement regard being had to the evidence placed before the court <em>a quo</em>. This was not an issue the court <em>a quo</em> could ignore. The court was obliged to making a finding. It failed to do so.</p> <p> </p> <p> </p> <p>Having found that the court <em>a quo</em> grossly misdirected itself in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court that the appellants failed to discharge the <strong><em>onus</em> </strong>cast upon them, to prove that they were covered by the September 2010 which Agreement, was correct. In <em>Pillay v Krishna &amp; Another</em> 1946 AD 946 at 952-953, the court made the following remarks regarding the burden of proof in a matter:</p> <p>“... the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent. The second is that, where there are several and distinct issues, for instance a claim and a special defence, then there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged. The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested. It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus, namely the onus of establishing any special defence which he may have.” (Emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>From these remarks, one can note that the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour. It invariably involves a court’s weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought. Therefore the question of whether or not a party has discharged the onus upon it cannot be determined by a court’s indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true. It is on this basis that I have concluded that the court <em>a quo</em> did not correctly apply the principle of onus of proof to the matter before it.</p> <p> </p> <p>Mr <em>Mpofu</em> urged the court to consider that on a holistic approach to the matter there was sufficient material for this court to make a finding that the appellants were part of the September 2020 Works Council Agreement. That would be tantamount to asking this Court to be a court of first and last instance. This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed or reversed.  This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by ss 9 &amp; 21 of the Supreme Court Act [<em>Chapter 7:13</em>] and s 169 of the Constitution of Zimbabwe, 2013.</p> <p> </p> <p>The undesirability of having an appellate court sitting as a court of first instance was put across in <em>Dormehl v Minister of Justice and Others</em> [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:</p> <p>“b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”</p> <p> </p> <p>                   In any event there is need for the leading of evidence which the court <em>a quo</em> is best suited to do as is provided in terms of ss 89 (2) (a) (i) &amp; 89 (5) of the Labour Act [<em>Chapter 28:01</em>].</p> <p> </p> <p> </p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>The court <em>a quo</em>’s failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court. It is also a matter which the court <em>a quo </em>is in as good a position to address, thus, a remittal is appropriate in the circumstances. The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.</p> <p> </p> <p>In the result the appeal succeeds in respect of ground 2 and is dismissed in respect of the rest of the grounds.  It would be fair in the circumstances of this case that each party bears its own costs.</p> <p> </p> <p>It is accordingly ordered as follows:</p> <ol> <li>The appeal be and is hereby allowed.</li> <li>The judgment of the court <em>a quo</em> be and is hereby set aside.</li> <li>The matter be and is hereby remitted to the court <em>a quo, </em>before a different Judge, for a proper determination of whether on the basis of specific provisions of the Works Council Agreement  concluded in September 2010 and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.</li> <li>If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant’s contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.</li> </ol> <p> </p> <ol> <li>Each party shall bear its own costs.</li> </ol> <p> </p> <p> </p> <p><strong>GUVAVA JA:                            </strong>I agree     </p> <p> </p> <p><strong>MAVANGIRA   JA:</strong>                   I agree  </p> <p> </p> <p><em>T. H. Chitapi &amp; Associates</em>, appellant’s legal practitioners</p> <p> </p> <p><em>Messrs Muringi Kamdefwere</em>, respondent’s legal practitioners. </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/26/2021-zwsc-26.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=53187">2021-zwsc-26.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/26/2021-zwsc-26.pdf" type="application/pdf; length=574490">2021-zwsc-26.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration-0">Arbitration</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract-employment-0">Contract (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/labour-dispute">Labour dispute</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/remuneration">Remuneration</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/wages-and-salaries">Wages and salaries</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/workers%E2%80%99-committee">Workers’ committee</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/53">PG Industries Zimbabwe (Pvt) Ltd. v Bvekerwa &amp; 34 Others (SC 53/2016 Civil Appeal No. SC 79/14) [2016] ZWSC 53 (17 November 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/28">Supreme Court Act [Chapter 7:13]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 20 Apr 2021 08:02:33 +0000 Sandra 9992 at https://old.zimlii.org MSF Belgium v Nhopi & 11 Others (SC 11/19, Civil Appeal No. SC 278/16) [2019] ZWSC 11 (22 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>  </p> <p><strong>REPORTABLE</strong><strong>        (16)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MEDECINS     SANS     FRONTIERS     (MSF)     BELGIUM</strong></p> <p><strong>v</strong></p> <ol> <li> </li> </ol> <p><strong>     </strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, PATEL JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE, SEPTEMBER 12, 2017 &amp; FEBRUARY 22, 2019</strong></p> <p> </p> <p> </p> <p><em>T. Zhuwarara, </em>for the appellant</p> <p><em>L. Chimuriwo,</em> for the respondents</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>:        This is an appeal against the entire judgment of the Labour Court upholding the arbitrator’s decision that by inviting the respondents for interviews after the termination of their fixed term contracts, the appellant had created in them, a legitimate expectation for their re-engagement as provided for and within the contemplation of s 12B (3) (b) of the Labour Act [<em>Chapter 28:01</em>] (hereinafter referred to as “the Act”).</p> <p> </p> <p>The facts leading to this appeal are as follows:</p> <p> </p> <p> </p> <p><strong>BACKGROUND </strong></p> <p>The appellant is an international non-governmental organization providing medical humanitarian services in Zimbabwe. The respondents were employed by the appellant on fixed term contracts for various periods running between one month to a full year from 2008 and 2011 in the capacity of guards, with some being employed as “security guard/gardener”. During the period 2008 and 2011, the appellant had from time to time renewed the respondents’ contracts of employment. The appellant then faced funding challenges which resulted in the respondents’ contracts not being renewed beyond 2011. (Meanwhile, the appellant had since obtained funding for projects in Mbare, Gutu and Chikomba which required guards and gardeners from the areas in which the projects would run.)</p> <p> </p> <p>The respondents claimed, at some time that is not specified in the papers before the court, that they had been unfairly dismissed. They collectively alleged that the appellant still needed their services and still had the funds to continue to engage them after their contracts had expired, and that they therefore had a legitimate expectation to be re-engaged which expectation was unlawfully frustrated by the appellant.</p> <p> </p> <p>At the time that the collective dispute of the alleged unfair dismissal of the respondents by the appellant arose, none of the respondents were employed by the appellant, all their contracts having expired at the end of the specified periods in their various contracts of employment. The allegation was made on the strength of s 12B (3)(b) of the Act which reads as follows:</p> <p>            “(3) An employee is deemed to have been unfairly dismissed—</p> <p>(a) … ;</p> <p>         (b) if, on termination of an employment contract of fixed duration, the employee—</p> <p>(i) had a legitimate expectation of being re-engaged; and</p> <p>(ii) another person was engaged instead of the employee.”</p> <p> </p> <p>After conciliation had failed to settle the dispute, it was referred to arbitration, the terms of reference being to ascertain whether or not the respondents had been unfairly dismissed and if so, to find the appropriate remedy.</p> <p> </p> <p>In their statement of claim before the arbitrator, the respondents alleged that sometime in 2010 they were advised that their contracts would not be renewed due to funding constraints then afflicting the appellant, unless the appellant managed to secure funding for projects in Mbare, Gutu and Chikomba. They further alleged that they were advised to apply for the same posts for renewal which they did and they were duly interviewed, along with other people. All the respondents were unsuccessful and twelve other people were engaged in their stead. They made checks regarding the appellant’s given reason for taking other people, which was to the effect that the appellant wanted to promote the communities where it would be operating from. Their checks verified that indeed the people engaged in their stead were people from the said communities.</p> <p> </p> <p>Nonetheless, the respondents maintained that they had formed a legitimate expectation of renewal and that this was based on previous renewals of their contracts of employment and also on “the undertaking that the contracts would be renewed” allegedly made by the appellant. According to the respondents, the explanation that the appellant had failed to renew their contracts because they wanted to promote local people from the places that they were going to operate from was not a legally valid excuse.   </p> <p> </p> <p>The appellant’s defence was that there was no basis for the respondents to have formed a legitimate expectation of the renewal of their contracts. The appellant denied that there was any undertaking that the contracts would be renewed if funding was secured.</p> <p> </p> <p>The arbitrator found in favour of the respondents. She found that having invited the respondents for interviews, the appellant had thereafter flouted s 12B (3)(b) of the Act because the respondents’ hopes for re-engagement were raised yet the appellant employed other people instead. The arbitrator also found that the Act justifies legitimate expectation where the fixed-term contract of employment of an employee is terminated and another employee is engaged. The arbitrator dismissed the appellant’s defence that it <strong>had to</strong> employ people from other communities on the basis of lack of evidence to justify such defence. Thereafter, an award was made reinstating the respondents to their original positions within the appellant’s employ without loss of salary and benefits from the date of unlawful dismissal or alternatively one year’s salary each in <em>lieu</em> of reinstatement.</p> <p> </p> <p>Aggrieved by that decision, the appellant noted an appeal in the Labour Court. As with the arbitrator, the Labour Court did not accord any significance or validity to the appellant’s reason that it had to engage people from communities that they were to operate from. The Labour Court found that once an employee shows that another person was employed in their stead, they would have met the legal requirements set out in the Act for claim to legitimate expectation to succeed. The Labour Court also concurred with the arbitrator’s finding that the invitation of the respondents to interviews created on their part a reasonable expectation of re-engagement.</p> <p> </p> <p>On the question of the award for damages, the Labour Court found that the arbitrator erred in awarding damages without any evidence having been led before her. In the result, the Labour Court upheld the award in part, overturning it only in so far as it related to damages. The appellant in turn now appeals against that decision before this Court on the following grounds,</p> <ol> <li>The honourable court <em>a quo</em> erred in finding that the Honourable Arbitrator did not misdirect herself in concluding that the requirements of s 12B(3)(b) of the Labour Act [<em>Chapter 28:01</em>] had been met.</li> <li>The court <em>a quo</em> erred and misdirected itself in that it failed to appreciate fully the circumstances under which an expectation of re-engagement is legitimate. The court failed to fully appreciate all the circumstances of the case and accordingly arrived at a wrong conclusion.</li> <li>More particularly the court <em>a quo</em> erred at law in confirming the arbitrator’s decision that the fact that some respondents were called for interviews created a legitimate expectation of renewal of employment on respondents’ part.</li> <li>The court <em>a quo</em> seriously misdirected itself on the facts and or failed to appreciate all the facts of the matter which misdirection is unreasonable in the circumstances and amounts to a misdirection at law.</li> </ol> <p> </p> <p> </p> <p><strong>SUBMISSIONS ON APPEAL</strong></p> <p>Mr<em> Zhuwarara </em>for the appellant argued that the arbitrator erred in finding that by inviting the respondents for interviews after their contracts had terminated the appellant created a legitimate expectation that they would be re-engaged. He submitted that an interview is merely a process of assessment and thus one cannot form a legitimate expectation by simply being called for an interview in the absence of communication that one would be guaranteed a job placement whether or not one performed satisfactorily in the interview.</p> <p> </p> <p>In order to emphasise that the appellant did not plant the idea of any legitimate expectation of re-engagement in the minds of the respondents, the appellant’s counsel relied on a provision in the letter that terminated the respondents’ employment and para 2 of all the respondents’ contracts. The appellant’s counsel relied on one part of the letter which reads as follows,</p> <p>“This letter serves to notify you that your contract of employment which is terminating on … will not be renewed.”</p> <p> </p> <p> </p> <p>Paragraph 2 of the contract in turn provided as follows:</p> <p>“2. Duration</p> <p>The contract is for a fixed duration starting on the … to … . <strong>At the expiration of the period contracted for, this contract shall terminate automatically. The Employer does not guarantee employment beyond this contract</strong>.” (own emphasis)</p> <p> </p> <p> </p> <p>In light of the above, the appellant argued that there could be no way that the respondents could have rationally formed a legitimate expectation of being re-engaged by the appellant even if they had been called in for interviews.</p> <p> </p> <p>On the other hand, Mr<em> Chimuriwo </em>for the respondents argued that as it was known to the appellant that the funds for the grant after the expiration of the respondents’ contracts were location specific, the question arising was why it then invited the respondents for interviews when it was known that they would not qualify on that basis. Questioned on the significance that ought to be given to the contents of the letters written by the appellant terminating the respondents’ contracts of employment, Mr<em> Chimuriwo </em>conceded that there could not be read therein any guarantee that the subsequent invitations for interviews was an assurance of re-engagement by the appellant.</p> <p> </p> <p><strong>ISSUE ARISING FOR DETERMINATION</strong></p> <p>The sole issue for determination is whether an employer’s invitation to his former employee for an interview for the same post that the employee held during the subsistence of the fixed contract is conduct which the employee can act on to form a legitimate expectation of re-employment by the employer in terms of s 12B(3)(b) of the Act. In other words, can an employee who was employed on a fixed-term contract basis successfully argue that after the fixed-term contract of employment expired he legitimately expected to be re-employed because his former employer invited him for an interview to fill in the same position? As stated earlier, the issue emanates originally from the arbitrator’s finding that the employer flouted the provisions of s 12B (3) (b), which finding the Labour Court upheld.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>In <em>Magodora v Care International</em> 2014 (1) ZLR 397 (S) at 402F-G, PATEL JA pronounced an interpretation on s 12B (3) (b) of the Act. He stated that the plain meaning of s 12B(3)(b) of the Act is that an employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and was supplanted by another person who was engaged in his stead. He further stated at 403A-C that these requirements are patently conjunctive and the mere existence of an expectation without the concomitant engagement of another employee does not suffice.</p> <p> </p> <p>In <em>UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira </em>2010 (1) ZLR 127 (S) ZIYAMBI JA made the point that the onus is on the employee to prove the two requirements stipulated in s 12B(3)(b) of the Act. The same reasoning is also found in the South African case <em>Ferrant v Key Delta</em> (1993) 14 ILJ 464 (IC), where the court held that the onus of proving reasonable expectation rests on the employee. In another South African case <em>Fedlife Assurance Ltd v Wolfaardt</em> (2001) 22 ILJ 2407 (SCA), the court <strong>found</strong> that to discharge that onus, the employee must prove that he or she actually expected the contract to be renewed and that only then would the question whether the expectation was reasonable arise.</p> <p> </p> <p>Professor Madhuku L, <em>Labour Law in Zimbabwe, </em>Weaver Press, 2015 at page 101 states:</p> <p>“The test for legitimate expectation is objective: would a reasonable person expect re-engagement? This requires an assessment of all the circumstances of the case. To be ‘legitimate’, the expectation must arise from impressions created by the employer.”</p> <p> </p> <p> </p> <p>In other words, in order for an employee to show that he or she reasonably expected that his or her fixed term employment contract would be renewed, he or she must convince the court that there was an objective basis for the creation of the “reasonable expectation”.</p> <p> </p> <p> </p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>The question that arises is whether it is reasonable for an employee to expect to be re-employed solely on the basis that he or she was invited for an interview? According to the Cambridge Advanced Learner’s Dictionary, “reasonable” means based on or using good judgment and therefore fair and practical. The Collins English Dictionary defines “reasonable” as using or showing reason, or sound judgment; sensible. On the basis of these definitions of the word “reasonable” could it be said that the appellant, by extending the invitation for interviews to the respondents, gave them the impression that it would re-engage them and was this a practical or sensible basis upon which the respondents could legitimately expect to be re-engaged? Clearly not. An employer anywhere invites people for interviews but that is not a guarantee that the prospective employees will be engaged after the interviews.</p> <p> </p> <p>In <em>casu</em>, it was accepted by the respondents in their papers that the appellant wanted to engage people in the communities that it would operate from as a matter of policy. On that basis the respondents could not have expected to be re-engaged; moreso, if none of the respondents had shown that they lived in the said places. On the facts of this case, no basis has been shown for the respondents to have reasonably expected to be re-engaged.</p> <p> </p> <p>Some of the contracts of employment were headed “Employment Contract for a Fixed Period.”   Paragraph 2 thereof headed “Duration” provided:</p> <p>“The contract is for a fixed duration, starting on the … to … At the expiration of the period contracted for, this contract shall terminate automatically. The employer does not guarantee employment beyond this contract.”</p> <p> </p> <p> </p> <p>Others were headed “Fixed Term Employment Contract.” Under the heading “Term of Contract” the provision reads”</p> <p>“The present contract is for fixed term duration, starting from … and finishing on …”</p> <p> </p> <p> </p> <p>That the contracts of employment were fixed term contracts can therefore not be open to any doubt on a plain reading of the provisions thereof.</p> <p> </p> <p> A reading of the provisions of the contracts of employment in conjunction with the letters that were written to the respondents terminating their contracts exposes the fallacy of the respondents’ claim to justification for entertaining a reasonable expectation of renewal. The letters read in relevant part:</p> <p>“This letter serves to notify you that your contract of employment for a contract period of up to … will not be renewed.”</p> <p> </p> <p> </p> <p>The letters further stated:</p> <p>“We would like to thank you for your services and dedicated time and to wish you luck in your endeavours. We will however consider you for interviews should any need arise within the organization in the future.”</p> <p> </p> <p> </p> <p>None of the quoted provisions could be attributed with the capacity to have blinded the respondents to the nature of their employment with the appellant. Clear and unambiguous language stated the terms of the contracts of employment. Clear language used in the termination letters also laid beyond doubt that the clearly expressed employment contract had finally come to an end. An indication of possible consideration should the need arise in the future coupled with the indication that interviews would be conducted for the satisfaction of such future need does not create a reasonable expectation of renewal. </p> <p> </p> <p>The relevant clause of the employment contracts stated in clear terms further employment or renewal was not guaranteed upon expiry. In the <em>Magodora</em> and the <em>UZ-UCSF</em> cases (<em>supra</em>), the point is made that the terms of a contract are relevant in the determination of whether non-renewal of a fixed-term contract constitutes a dismissal. That is so because the contract itself indicates the intention of the parties. In the case of a fixed term contract, the intention of the parties is that the contract and employment relationship terminates on the date mentioned therein.</p> <p> </p> <p>In addition, Grogan J in <em>Workplace Law</em>, (11th edition, Juta and Co (Pty) Ltd, 2014) at page 171 makes reference to <em>Foster v Steward Inc</em> (1997) ILJ 367 (LAC) where the South African Labour Appeal Court held that when establishing whether the non-renewal of a fixed term contract constitutes a dismissal, the terms of the contract remain relevant. The contract itself is an important indication that the parties in fact intended the contract relationship to terminate on the date mentioned. Reference is also made to the case of <em>Swissport (Pty) Ltd v Smith</em> <em>NO</em> (2003) 24 ILJ 618 (LC) where the point is made that it is a fundamental principle of the law of contract that, once parties have decided to reduce a contract to writing, the document that they produce will be accepted as the sole evidence of the terms of the contract.</p> <p> </p> <p>In the case of <em>South African Rugby Players Association &amp; Ors v SA Rugby &amp; Ors</em> (2008) 29 ILJ 2218 (LAC), some professional rugby players alleged that failure by their employer to renew their contracts of employment on the same terms and conditions constituted constructive dismissal. Their contracts of employment included a provision which was captured as follows;</p> <p>“3.2 As this is a fixed term contract, it shall automatically terminate on the date set out in paragraph 1.2 of schedule 11 hereof (30 November 2003) and the player acknowledges that he has no expectation that this contract will be renewed on the terms herein contained, or on any other terms.”</p> <p> </p> <p> </p> <p>In interpreting the contract in the determination of the dispute that had arisen, the South African Labour Appeal Court held as follows;</p> <p>“[46] Clause 3.2 stating that the contracts automatically terminated on the dates set out and that the players acknowledged that they had no expectation that their contracts would be renewed on the terms contained therein or any other terms is to me of critical importance. This clause and other exclusionary clauses referred to above were deliberately included in the contracts in order for them to be part of the contracts and to mean what they were intended for. It would therefore, be expected of the appellants to place more credible facts to make their expectation reasonable in the face of clause 3.2. A mere <em>ipse dixit</em> that there is an expectation, based on flimsy grounds, would not suffice.” (my emphasis)</p> <p> </p> <p> </p> <p> </p> <p>From the authorities cited above, it is clear that the employee’s burden to prove that they had a legitimate expectation of re-engagement after the expiration of the contract of employment must be discharged. The employee has to show that despite the contract of employment having been one for a fixed term, the employer acted in a manner upon which the employee could have formed a legitimate expectation to be re-engaged.</p> <p> </p> <p>In <em>casu, </em>the contracts expressly provided that the employer did not guarantee employment beyond the duration of the fixed term. I agree with the appellant’s counsel that there was thus no reasonable basis to justify the expectations by the respondents to be re-employed after termination. In the South African case of <em>Magubane &amp; Ors v Amalgamated Beverages</em> (1997) 18 ILJ 1112 (CCMA), the court held that whether there was a reasonable expectation of renewal must be determined from the perspective of both the employer and the employee. In light of the duration clause of the contracts of employment in <em>casu</em>, it is evident that from the perspective of the employer, no reasonable expectation of renewal could have been formed. Neither could the respondents have reasonably expected to be re-employed because the contract that they entered into with the appellant was clear that there was no guarantee of employment beyond the contract.</p> <p> </p> <p>                        Counsel for the respondents failed to direct us to any evidence that the appellant acted in a way that could have resulted in the respondents forming a reasonable and legitimate expectation of re-engagement beyond the duration of their fixed term contracts. In the absence of evidence showing that the employer guaranteed an employee employment notwithstanding the former employee’s performance in the interview, it cannot be said that by merely inviting employees for an interview the employer gave the employee reason to entertain a legitimate expectation for re-engagement.</p> <p> </p> <p>As correctly argued by <em>Mr Zhuwarara, </em>an interview provides a platform for an employer to assess, among other things, the competence of a prospective employee. The employer has the discretion to engage an employee on the basis of his or her findings and satisfaction regarding the suitability of the interviewee as exposed by the interview. It is an interviewee’s performance in the interview which forms the basis of whether one will be employed. In the absence of evidence that the employer guaranteed employment regardless of performance in the interview, there can be no justification for forming a legitimate expectation of re-engagement before the establishment of the employee’s performance in the interview. An invitation to attend an interview cannot be reasonable basis upon which the employee forms a legitimate expectation for re-engagement. This is more so considering that the employer conducts the interview or in this case, intended to conduct the interviews, in order to be satisfied that the interviewees suit the employer’s requirements.</p> <p> </p> <p>The arbitrator and consequently the court <em>a quo</em> erred in finding that an employee can reasonably form a legitimate expectation for re-employment by the mere fact of being invited for an interview by a former employer. In addition, the contracts that the respondents in <em>casu </em>had with the appellant clearly stated each was for a fixed term. By reason of the burden that the law places on them, the respondents had to place more evidence before the court to show that in light of all the circumstances pertaining to their matter, they reasonably expected to be re-engaged in the appellant’s employ which they failed to do.</p> <p>           </p> <p>In the result it is ordered as follows,</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The judgment of the Labour Court be and is hereby set aside in its entirety and substituted as follows:</li> </ol> <p>“i. The appeal against the arbitral award dated 8 May 2014 be and is hereby allowed.</p> <p>ii. The arbitral award be and is hereby set aside in its entirety.”</p> <p> </p> <p> </p> <p>                        <strong>HLATSHWAYO JA:                       </strong>I agree</p> <p> </p> <p> </p> <p>                        <strong>PATEL JA:                                       </strong>I agree</p> <p><em>Kantor &amp; Immerman, </em>appellant’s legal practitioners</p> <p><em>Lawman Chimuriwo Attorneys, </em>respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/11/2019-zwsc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=49271">2019-zwsc-11.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/11/2019-zwsc-11.pdf" type="application/pdf; length=210287">2019-zwsc-11.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract-employment-0">Contract (EMPLOYMENT)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 19 Jun 2019 10:02:07 +0000 admin 9328 at https://old.zimlii.org St. Giles Medical Rehabilitation Centre v Patsanza (SC 59/18, Case No. SC 668/15 Ref Case No. LC/H/116/13) [2018] ZWSC 59 (23 September 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/59 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><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></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/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 odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/59/2018-zwsc-59.pdf" type="application/pdf; length=240906">2018-zwsc-59.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract-employment-0">Contract (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal">dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Thu, 18 Oct 2018 09:07:27 +0000 admin 9112 at https://old.zimlii.org Chitungwiza Municipaliy v Karenyi (HH 93-18, HC 1313/18) [2018] ZWHHC 93 (28 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/93 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHITUNGWIZA MUNICIPALITY</p> <p>versus</p> <p>MAXWELL KARENYI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 15 &amp; 28 February 2018</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application for <em>rei vindicatio</em></strong></p> <p> </p> <p><em>N Mugandiwa</em>, for applicant</p> <p><em>G Majirija</em>, for respondent</p> <p> </p> <p>          TAGU J: The applicant seeks an order of <em>rei vindicatio</em>. It seeks recovery of its property namely- motor vehicle, a Toyota Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung Galaxy S5 and a Samsung tablet 4 presently in the possession of the respondent without the applicant’s consent.</p> <p>            The circumstances are that the respondent was employed by the applicant as a Director of Works in terms of a written contract. The respondent gave notice of his intention to resign from the applicant’s employment. He indeed resigned on the 18th December 2017. During the term of his employment the respondent was issued with a motor vehicle and other gadgets for use in the performance of his duties. Upon resignation the respondent remained in possession of the vehicle and the gadgets. Despite the termination of his employment the vehicle and the gadgets remained registered in the names of the applicant. The applicant requested the respondent to surrender the motor vehicle and other gadgets that were issued to the respondent during the course of his employment. The respondent despite lawful demand declined to return the property in question prompting the applicant to file a police report at ZRP St Marys CR 68/01/18, CID Chitungwiza DR17/1/18. The docket was referred to the Prosecutor General who declined to prosecute holding that the dispute was civil. This prompted the applicant to file this urgent chamber application for <em>rei vindicatio</em>.</p> <p>            The respondent opposed the application. He raised three points <em>in limine</em> in his Notice of Opposition which he thought could dispose of this matter which can be summarized as follows-</p> <ul> <li>The application is frivolous and vexatious;</li> <li>The application is not urgent;</li> <li><em>Lis alibi pendens</em> and</li> <li>That the High Court has no jurisdiction to hear this matter.</li> </ul> <p>            I have to examine the points <em>in limine</em> first to decide whether they dispose of the matter without dealing with the merits of the application.</p> <p><strong>THE APPLICATION IS FRIVOLOUS AND VEXATIOUS     </strong></p> <p>            The respondent’s contention was that he is entitled to the vehicle and the other gadgets in terms of clause 17 of his employment contract which provides that on resignation he was entitled to an option to purchase his allocated vehicle at 10% of book value. He averred that since he resigned his contract provides that as his benefits he is entitled to a 90% discount on his conditions of service hence in the event of not getting the vehicle he would be prejudiced of his 90% discount on the vehicle.</p> <p>            The applicant opposed this point <em>in limine</em> and relied on the cases of <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited</em> SC 81/2014 and <em>Tendai Savanhu</em> v <em>Hwange Colliery Company</em> SC -8-2015.</p> <p>            Clause 17 of the respondent’s contract of employment provides that-</p> <p>          “<strong>Purchase Option at 10 % of Book Value</strong></p> <p>            The HOD shall be given the first right of refusal to purchase his/her allocated vehicle as   follows:</p> <ul> <li>On expiration of contract.</li> <li>Upon resignation or resignation on medical grounds.</li> <li>Upon dismissal no purchase option will be exercised.”</li> </ul> <p>            The applicant’s argument was that the property in question remained the property of the applicant and was never given to the respondent hence the applicant has a right to bring this application for <em>rei vindicatio</em>. It said though the contract of employment talks of respondent’s right of first refusal to purchase the vehicle in question, the applicant was not obligated to sell the property in question to the respondent. See <em>Eastview Gardens Residents Associations</em> v <em>Zimbabwe Reinsurance Corporation Ltd and Others</em> SC-90-02.</p> <p>            In this case it is not in dispute that the respondent resigned from his employment. It is common cause that by the time of his resignation the applicant had neither made a decision to dispose of the vehicle and the gadgets nor offered the said property to the respondent for sale. In my view the ownership of the vehicle and the other gadgets remained vested in the applicant. I therefore agree with the applicant’s argument that by ceasing to be an employee of the applicant the respondent’s possession and use of the gadgets also ceased unless they had been offered to the respondent to purchase. I entirely agree with the decisions of the Supreme Court in the cases of <em>Tendai Savanhu</em> v <em>Hwange Colliery Company</em> and <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited supra</em>. On this basis the first preliminary point lacks merit and is hereby dismissed since the application is not frivolous and vexatious.</p> <p><strong>THE APPLICATION IS NOT URGENT</strong></p> <p>            The respondent’s argument was that this matter is not urgent because he advised the applicant on or about the 15th of December 2017 that he was not willing to release the said assets but the applicant took about 15 days without bringing this application. He attacked the certificate of urgency in that it did not disclose what the applicant was doing all along, that is it failed to disclose the reasons for the delay. For this contention the respondent referred the court to the case of <em>Kuvarega</em> v <em>Registrar General and Another</em> 1998 (1) ZLR 188 (H) at 193 where chatikobo J Said-</p> <p>         “What constitutes urgency is not only the imminent arrival of the day of reckoning; a           matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency            which stems from a deliberate or careless abstention from action until the dead-line draws         near is not the type of urgency contemplated by the rules. It necessarily follows that the      certificate of urgency or the supporting affidavit must always contain an explanation of           the non-timeous action if there has been any delay.”</p> <p>            See also <em>Document Support Centre</em> v <em>Mapuvire</em> HH-117-06.</p> <p>            <em>In casu</em> the applicant disputed the assertions made by the respondent. It argued that it first of all advised the respondent to return the assets. When the respondent refused to release the assets it lodged a report with the police. It was only three days after the Prosecutor General declined to prosecute the matter that it lodged this application. Indeed I had sight of both the certificate of urgency and the founding affidavit. It is not true that the urgency in this matter was self –created because the papers clearly showed that the applicant firstly requested the respondent to return the assets. When he refused a police report was made. The matter was referred to court, and the Prosecutor –General then declined to prosecute. Only then did the applicant lodged this application. In my view, this matter is urgent and the second point <em>in limine </em>is dismissed.</p> <p><strong>LIS ALIBI PENDENS</strong></p> <p>            The respondent submitted that he instituted a claim with the Ministry of Labour and Social Welfare in terms of s 93 of the Labour Act. The subject matter before the Labour Officer is a determination of his benefits including the car. This is the same claim which the applicant has brought to this Honourable Court. Hence he wants this claim to be dismissed.</p> <p>            In my view the matter before the Labour Officer is about the respondent’s benefits and arrear salaries. The matter before this court is one of <em>rei vindicatio</em>. These are two different matters. The claim cannot be dismissed on the basis of <em>lis alibi pendens</em> because the claims are different. This point is again dismissed.</p> <p><strong>JURISDICTION OF THE HIGH COURT</strong></p> <p>            The long and short of the respondent’s submission was that the present matter relates to benefits which he is entitled to on the termination of his contract of employment hence the Labour Court has exclusive jurisdiction over this matter. In light of the above this court does not have jurisdiction to deal with the present matter hence the matter ought to be dismissed with costs. The respondent said the High Court declined jurisdiction in the case of <em>Telone (Private) Limited</em> v <em>Edwin Matinyarare</em> HH-140-13.</p> <p>            In opposition to the submissions the applicant referred the court to the case of <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited supra</em> at pages 5-7 where the Supreme Court had occasion to deal with a similar issue. On p 7 of the cyclostyled judgment the Supreme Court in the above matter said-</p> <p>       “As submitted on behalf of the respondent, the right of an individual to approach the High     Court seeking relief other than that specifically set out in s 89 (1) (a) of the Act, has not been abrogated. Nothing in s 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of civil law, except in respect        of those applications and appeals that are specifically provided for in the Labour Act. Nor            is there contained in s 89 any provision expressly authorizing the Labour Court to deal with an application, such as in the instant case, for the common law remedy of <em>rei             vindicatio</em>. Such applications fall squarely within the jurisdiction of the High Court.”</p> <p>            I cannot do any better other than to hold that this court has jurisdiction to hear this matter. While the High Court declined jurisdiction in the case of <em>Telone (Private) Limited</em> v <em>Edwin Matinyarare supra</em>, in my view this judgment is persuasive but not as binding on me as the Supreme Court one. See also <em>Surface Investments Private Limited</em> v <em>Maurice Chinyani</em> HH-295-14;  <em>Zimbabwe Broadcasting Holdings</em> v <em>Gono</em> ZLR 2010 (1) ZLR 8, <em>Zimbabwe Educational Scientific Social And Cultural Workers Union</em> v <em>Claud Kaharo</em> HH-222-2011 and <em>Gloria Rumbidzai Mkombachoto</em> v <em>Commercial Bank of Zimbabwe Limited and The Registrar of Deeds</em> HH-10-2002.</p> <p><strong>AD MERITS</strong></p> <p>            The application before me is a <em>rei vindicatio</em> action brought by the applicant against the respondent. I will therefore deal with the matter without regard to what is happening at the Labour Court. In dealing with the matter I am mindful of the fact that an applicant seeking to rely on the <em>rei vindicatio</em> must prove the following-</p> <ol> <li>That he is the owner of the property- <em>Jolly Shannon and Anor</em> 1998 (1) ZLR 78;</li> <li>That at the commencement of the action, the thing to be vindicated was still in existence and the respondent was in possession of the property- <em>Masuli</em> v <em>Jera</em> HH-67-07, and</li> <li>That the respondent’s possession is without his consent-<em>Stanbic Finance Zimbabwe</em> v <em>Chivhunga </em>1999 (1) ZLR 262.</li> </ol> <p>            It is trite law that the owner may claim his property wherever, from whoever is holding it. It is inherent in the nature of ownership that possession of the rei should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner. Such as right of retention or contractual right. The owner need only to prove that he is the owner and that the respondent is in possession without his or her consent. See <em>Silvertondale (Pvt) Ltd</em> 1999 (2) SA 986.</p> <p><em>In casu</em> the respondent contented that he was supposed to purchase the vehicle and the other gadgets. Yet it is common cause that the property belongs to the applicant. In my view the respondent failed to prove any right or entitlement to the property in question. He therefore must return it since he has no basis to continue holding onto the vehicle and the other gadgets. In the result the applicant has managed to prove its case. This is the point that was well articulated by the Supreme Court in the cases of <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited and Tenda</em>i <em>Savanhu </em>v <em>Hwange Colliery Company supra</em>. I will therefore grant the following order-</p> <p><strong>TERMS OF ORDER MADE</strong></p> <p><strong>FINAL ORDER SOUGHT</strong></p> <p>That you show cause to this Honourable Court why a final order should not be made in the following terms:</p> <ol> <li>The Respondent be and is hereby ordered to surrender possession of and to return to the Applicant:</li> </ol> <ul> <li>A motor vehicle namely a Toyota Hilux Double Cab, Registration Number AAE 7098,</li> <li>HP 450 laptop,</li> <li>Samsung Galaxy S5,</li> <li>Samsung Tablet 4</li> </ul> <p>            upon service of this order, failing which the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorized to take all necessary steps to recover the said motor vehicle from          the Respondent or any person whomsoever is in possession thereof and wherever the         motor vehicle may be situate and return the same to the Applicant.</p> <ol> <li>The Respondent should pay the costs of suit on an attorney client scale.</li> </ol> <p><strong>INTERIM RELIEF </strong></p> <p>Pending confirmation or discharge of this provisional order, Applicant is granted the following relief:</p> <ol> <li>The Respondent be and is hereby ordered to surrender and return</li> </ol> <ul> <li>A motor vehicle namely a Toyota Hilux Double Cab, Registration Number AAE 7098</li> <li>HP 450 laptop</li> <li>Samsung Galaxy S5</li> <li>Samsung Tablet 4</li> </ul> <p>            to the Applicant’s premises being Chitungwiza Municipality Head Office where it shall    be kept/stored by the Applicant pending the return day.</p> <ol> <li>In the event of the Respondent failing to comply with the terms of paragraph 1 of this order, the Sheriff or his lawful deputy be and is hereby directed and authorized to take any and all necessary steps to recover the said motor vehicle, HP 450 laptop, Samsung Galaxy S5 and Samsung Tablet from the Respondent or any person whoever is in possession thereof and return them to the Applicant for the purposes of compliance with paragraph 1 of this order.</li> </ol> <p><strong>SERVICE OF THE ORDER</strong></p> <p>A copy of this order be served upon the respondent by the applicant’s legal practitioners.</p> <p> </p> <p> </p> <p><em>Kantor &amp; Immerman</em>, applicant’s legal practitioners</p> <p><em>B Matanga IP Attorneys</em>, respondent’s legal practitioners</p> <p> </p> <p>           </p> <p> </p> <p> </p> <p>    </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/93/2018-zwhhc-93.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26841">2018-zwhhc-93.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/93/2018-zwhhc-93.pdf" type="application/pdf; length=138008">2018-zwhhc-93.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract-employment-0">Contract (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urban-council-employees">urban council employees</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/jurisdiction-high-court">Jurisdiction (HIGH COURT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/response-application">response to (Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-see-practice-and-procedure-urgent-application">urgent See PRACTICE AND PROCEDURE (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/81">Nyahora v CFI Holdings (Pvt) Ltd (SC 276/13) [2014] ZWSC 81 (22 October 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2014/295">Surface Investments (Pvt) Ltd v Chinyani (HC 13745/12) [2014] ZWHHC 295 (02 June 2014);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2006/117">Document Support Centre (Private) Limited v Mapuvire (HC 6314/06) [2006] ZWHHC 117 (30 October 2006);</a></div></div></div> Mon, 21 May 2018 13:25:13 +0000 admin 8841 at https://old.zimlii.org