Remuneration https://old.zimlii.org/taxonomy/term/10436/all en 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 Mataruse v E. Mundenda N.O & 2 Others (HH 457-19, HC 2385/17) [2019] ZWHHC 457 (03 July 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/457 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ANDREW MATARUSE</p> <p>versus</p> <p>E. MUNDENDA N.O</p> <p>and</p> <p>PARIRENYATWA GROUP OF HOSPITALS</p> <p>and</p> <p>MINISTER OF HEALTH AND CHILD CARE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>NDEWERE J</p> <p>HARARE,24 October 2017 &amp; 3 July 2019</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>T. Mpofu</em>, for the applicant</p> <p><em>T. Tandi</em>, for the respondent</p> <p> </p> <p>            NDEWERE J: On 20 March, 2017, the applicant filed a court application for review. The grounds of review on page 1 to 2 of the application were as follows:</p> <ol> <li>The decision by the respondents that the applicant is double dipping due to his employment by the second respondent and the University of Zimbabwe and therefore should pay back the remuneration paid to him by the second respondent is grossly irregular. It is illegal and irrational.</li> <li>The instruction by the first respondent that the applicant must resign retrospectively with effect from 19 September, 2016 is unlawful and amounts to constructive dismissal.</li> <li>The unilateral decision by the respondents to cease applicant’s salary is unlawful.</li> </ol> <p>The relief which the applicant sought was the following;</p> <p>“1. The decision of the first respondent communicated to the applicant through a memorandum dated 7 February, 2017, be and is hereby set aside.</p> <p> </p> <p>2. The decision of the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</p> <p> </p> <p>3. The first and second respondent, jointly and severally to pay costs of suit.”</p> <p> </p> <p>The applicant filed a founding affidavit from page 4 of the court application.</p> <p>The first and second respondents filed an opposing affidavit on 3 April, 2017. They said the application did not contain grounds of review. They also said the High Court had no jurisdiction as this was a labour related dispute. In addition the first respondent objected to being cited as a respondent and asked that he be removed from the matter as a party.</p> <p>The respondents further said since the second respondent was a statutory body and capable of suing and being sued in its own name, there was no need to cite the third and fourth respondents as parties in the matter since the second respondents operations were independent of them.</p> <p>On the merits of the application, the respondents confirmed that what applicant did was an act of misconduct. They confirmed that they had Disciplinary Procedures for acts of misconduct. They however said instituting those procedures was their prerogative as employer and in this case they proceeded outside the Disciplinary Procedures and invited the applicant to resign.</p> <p>They also said the applicant should have exhausted domestic remedies and appealed against their decision to the Board instead of approaching the High Court. They prayed for the dismissal of the application with punitive costs.</p> <p>After going through the submissions by both the applicant and the respondents the court made the observations which follow below.</p> <p>The applicants filed a court application for review. After providing the grounds of review on pages 1 to page 2 of the application, they attached a founding affidavit by the applicant from p 4 to 11. On page 7 of the Founding Affidavit, in paragraph 9, the applicant attacked the procedure adopted by the respondents. He repeated this attack in paragraph 10, through the use of the word “unilaterally” in reference to the cessation of his salary. The use of that word shows that the procedure adopted was being criticised in that the applicant was not afforded the right to be heard. In paragraph 12, the use of the phrase “gross irregularity” and the use of “unfounded allegations” in paragraph 13, is a criticism of the procedure adopted. In paragraphs 17, and 18 the failure to follow disciplinary procedures is raised in specific terms.</p> <p>After the founding affidavit, the relief is sought on pages 13 to 14 as follows:</p> <p>“1. The decision of the first respondent communicated to the applicant through a memorandum dated 7 February, 2017, be and is hereby set aside.</p> <p> </p> <p>2. The decision of the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</p> <p> </p> <p>3. The first and second respondent, jointly and severally to pay costs of suit.”</p> <p> </p> <p>            While the applicant must be criticised for not mentioning the specific procedural irregularities in his grounds of review, the court’s view is that since he mentioned them in his founding affidavit, his failure to specify them in the grounds of review is not fatal to his application. The respondents were informed of the basis of the review in the founding affidavit before the Draft Order was attached. So they knew what review case they needed to respond to. They were not prejudiced. Therefore whilst the respondents were correct to criticise the applicant for the failure to “state shortly and clearly” the grounds upon which the applicant sought to have the proceedings set aside or corrected in terms of rule 257, his failure to do so is not fatal because he provided the procedural irregularities in his founding affidavit in the paragraphs alluded to above. The case of <em>Pasalk and Another</em> v <em>Kuzora and Others</em> SC 97/02 referred to by the respondents is a case in point.</p> <p>            At page 94, the court said;</p> <p>            “it is not for the respondent, or the court, to study the affidavits carefully in order to          determine what case the respondent is to answer. The grounds of review must be clearly and shortly stated, and in my view, this must be in the court application itself or, at the commencement of the founding affidavit”.</p> <p>            The above case shows that it is permissible to have the grounds of review in the founding affidavit, although having them on the face of the application itself is more appropriate. The preliminary point of having no grounds of review is therefore dismissed.</p> <p>            On the issue of jurisdiction of the High Court, the respondents are incorrect. Section 171 of the Constitution of Zimbabwe No. 20 of 2013 provides as follows:</p> <p>            “(1)      The High Court—</p> <ul> <li>Has original jurisdiction over all civil and criminal matters throughoutZimbabwe;</li> </ul> <p> </p> <p>Section 13 of the High Court Act provides as follows:</p> <p>“13       Original civil jurisdiction</p> <p>Subject to this Act and any other law, the High Court shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe”.</p> <p> </p> <p>            Section 26 of the High Court Act also provides as follows:</p> <p>            “Subject to this Act and any other law, the High Court shall have power, jurisdiction        and       authority to review all proceedings and decisions of all inferior courts of justice,        tribunals           and administrative authorities within Zimbabwe”.</p> <p> </p> <p>The respondents are one such administrative authority.</p> <p> </p> <p>            In addition, as stated by the applicant in his Answering Affidavit, the applicant is not covered by the Labour Act but by the Health Service Act [<em>Chapter 15:16</em>] and the Health Service Regulations of 2006. The respondents did not dispute this assertion in their submissions. The preliminary point about lack of jurisdiction is therefore dismissed.</p> <p>            The 3rd preliminary point raised by the respondents was that first respondent should not have been cited as a party and should be struck out. The court found no merit in that point. It is first respondent who wrote the Memorandum of 7 February 2017 which appears on p 12 of the application. He wrote it in his capacity as Director of Operations. That is why the letters “N.O” appear after the citation of his name to indicate that he is being proceeded against in his official capacity as Director of Operations and not in his personal capacity. In the Memorandum of 7 February 2017, he never cited the Board or referred to it. He wrote;</p> <p>            “It has come to my attention …”</p> <p>            He did not say “it has come to the Board’s attention,” or . “… to our attention.”   All this shows that his citation as a party to the proceedings was proper since the Memorandum of 7 February 2017 is what started the case between the applicant and the respondents. First respondent’s objection is therefore dismissed.</p> <p>            However, there was no need to cite the third and fourth respondents since second respondent is a statutory body clothed with a legal personality. The court noted, however, that no specific relief was sought against the third and fourth respondents. Furthermore, in view of the provisions of r 87 of the High Court Rules, the citation of third and fourth respondents is not fatal to the application.</p> <p>            Since the first and second respondents have objected to the inclusion of third and fourth respondents and because it appears that their inclusion was not necessary since the second respondent is an independent statutory body, the court will invoke r 87 (2) (a) of the High Court Rules and order the third and fourth respondents to cease to be parties in this matter and shall accordingly strike them off as parties.</p> <p>            As regards the merits of the matter, the court is of the view that the respondents had an arguable case against the applicant. The applicant said he was appointed on an indefinite contract of employment by the second respondent. Then on 20 September 2016, he said in his own words he was appointed “a full time lecturer” in the Medical School at the University of Zimbabwe. He did not indicate when he was going to be available to perform his duties to the second respondent, now that he was “full time” lecturing. It would have been a different case if he had said he was going to be part time.</p> <p>            The applicant said his duties to the two employers were not in conflict with each other. That cannot be correct in relation to time. If  he was lecturing at the Medical School, during that lecture period, if summoned by the Stroke Unit and Neurology Clinic would he be able to respond there and then and abandon his lecture in the middle? The probability is that he would not be available for the clinic until after his lecture was finished. So there was definitely a conflict in relation to his time. It was not possible for him to be available for both jobs at the same time.</p> <p>            However, after identifying the problem of a conflicting appointment of the applicant, the respondents proceeded in an irregular manner. They asked the applicant to resign from 19 September 2016, and asked him to pay back what they had paid him from 20 September 2016. In actual fact, they were saying from 20 September 2016, you ceased to be our employee, so resign from that date and pay us back what we paid you. First respondent intimated that this position had been discussed and then applicant requested that it be put in writing. After putting it in writing, the respondent should have waited for the applicant to accept the arrangement. If he had accepted the arrangement, that would have been the end of the matter. The moment he did not accept it, disciplinary procedures should have been invoked.</p> <p>            The court noted that the respondents confirmed that the applicant committed an act of misconduct. They accepted that they had appropriate disciplinary procedures. They admitted that they proceeded outside the disciplinary processes; saying instituting them was their prerogative. Indeed, it was their prerogative, but if the procedures were not being instituted, applicant’s consent had to be obtained. If it was not obtained, the employer could not unilaterally withdraw the benefits of an employee while that employee was still working except in terms of the disciplinary procedures. If consent was not obtained, then following the disciplinary procedures became imperative. It was no longer a matter of choice. That is because the disciplinary procedures are the process which gives an employee the opportunity to be heard in his own defence.</p> <p>            The failure by the respondents to invoke the disciplinary procedures when the applicant did not resign amounted to gross irregularity.</p> <p>            The issue of exhaustion of domestic remedies did not arise at all.</p> <p>            The respondents referred to s 17 of the Health Services Act [<em>Chapter 15:16</em>]. That section allows any person aggrieved by a verdict reached or punishment given, to appeal to the Hospital Management body. A verdict is given after a disciplinary hearing. So s 17 which the respondent wanted to rely on only applied where the disciplinary process had been followed. Section 17 (4) provides as follows;</p> <p>“Any person who is aggrieved by a verdict reached or punishment imposed following misconduct proceedings conducted in terms of subsection (1) or (2) may appeal to the Board in the form and manner prescribed in service regulations.” (The underlining is my own).</p> <p> </p> <p>So for s 17 to apply, there had to be misconduct proceedings.</p> <p> </p> <p>The application for review therefore has merit and must succeed.</p> <p>The relief sought by the applicant was however, incomplete. His draft order requested that the respondents’ decisions be set aside and he ended there; yet there was need to correct the procedural irregularity committed by the respondents. That is the purpose behind reviewing proceedings which are irregular. The court will therefore set aside the respondents’ decisions and remit the matter back to the second respondent for it to institute disciplinary procedures against the applicant.         </p> <p>            It is therefore ordered that:</p> <ol> <li>The decision of the first respondent communicated to the applicant through the Memorandum of 7 February 2017 be and is hereby set aside.</li> <li>The decision by the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</li> <li>The matter be and is hereby referred back to the second respondent for it to institute disciplinary proceedings against the applicant for the alleged misconduct.</li> <li>The first and second respondents, jointly and severally, to pay the costs of suit.</li> </ol> <p> </p> <p> </p> <p><em>Rubaya and Chatambudza</em>, applicant’s legal practitioners</p> <p><em>Kantor and Immerman</em>, 1st &amp; 2nd respondent’s legal practitioners</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/2019/457/2019-zwhhc-457.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23836">2019-zwhhc-457.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/2019/457/2019-zwhhc-457.pdf" type="application/pdf; length=128942">2019-zwhhc-457.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/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/remuneration">Remuneration</a></li></ul></span> Tue, 16 Jul 2019 09:24:04 +0000 admin 9349 at https://old.zimlii.org Mafunda v ZERA (SC 9/16, Civil Appeal No. SC 134/15) [2016] ZWSC 9 (04 March 2016); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2016/9-0 <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><strong>DISTRIBUTABLE</strong>  <strong>(6)</strong></p> <p>                                                  </p> <p><strong>PETER     MAFUNDA</strong></p> <p><strong>vs</strong></p> <p><strong>ZIMBABWE     ENERGY     REGULATORY     AUTHORITY</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, MAVANGIRA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, OCTOBER 26, 2015 &amp; MARCH 4, 2016</strong></p> <p> </p> <p><em>S. Hashiti</em>, for the Appellant</p> <p><em>E. Matinenga</em>, for the Respondent.</p> <p> </p> <p><strong>UCHENA JA:</strong>           The appellant Peter Mufunda is a Legal Advisor in the Ministry of Energy and Power Development. The respondent Zimbabwe Energy Regulatory Authority is a statutory successor of the Zimbabwe Electricity Regulatory Commission.</p> <p> </p> <p>The common cause facts on which the dispute between the parties arose are as follows. The appellant, an employee of the Ministry of Energy and Power Development was, on 20 October 2009, by appointment assigned to perform duties for the Zimbabwe Electricity Regulatory Commission     (ZERC), whose functions were taken over by The Zimbabwe Energy Regulatory Authority (ZERA).  The appellant played a role in the establishment of ZERA. According to the assigning memorandum he was to play the leading role. ZERA appreciated his role to the extent that when the Ministry sought to withdraw his services to it by memorandum dated 17 November 2011, it asked the Ministry to allow him to continue in that role till it appointed its own Chief Executive officer. The Ministry agreed and extended his assignment to 28 February 2012.</p> <p>After assuming duty at (ZERC) and thereafter (ZERA) the appellant continued to perform his normal duties as Legal Advisor for the Ministry. He did not sign a contract of employment with either ZERC or ZERA, but was paid an allowance of US$500.00 per month after he protested against none payment after serving ZERC for some time. He had demanded that he be paid a salary but the Secretary of the Ministry of Energy after initially telling him rather brutally and uncharitably, to “learn to work for nothing” authorised him to arrange with the respondent that he be paid the US$500.00 per month allowance which the Minister had authorised. The appellant accepted the payments on a without prejudice basis. The parties failed to reach an agreement leading to the appellant referring the dispute over salary and benefits to the Ministry of Labour and Social Services. On 2 September 2013 a certificate of no settlement was issued and the dispute was referred to arbitration. The Arbitrator found that the parties had entered into a valid contractual relationship. He ordered the parties to quantify the award failing which they could revert back to him for quantification.</p> <p> </p> <p>The respondent noted an appeal to the Labour Court which found in its favour leading to the appellant noting this appeal.</p> <p> </p> <p>In his two grounds of appeal the appellant alleged the following against the decision of the Labour Court:</p> <ol> <li>The court <em>a quo</em> erred and misdirected itself in finding that there was no contractual relationship between the appellant and respondent contrary to the dictates of s 14 of the Public Service Regulations SI 1/2000 as read with ss 2 and 12 of the Labour Act (Chapter 28;01).</li> <li>The court further erred and misdirected itself in holding that there was no legal basis for the award of arrear salaries and benefits due to appellant from respondent.<br />   </li> </ol> <p>In finding for the respondent the Labour Court on pages 54 to 55 of the record said:</p> <p>“The Oxford Dictionary defines secondment as a temporary transfer. In other words an employee on secondment remains the employee of the original employer (seconder) during the period of secondment. The Industrial Court of Malaysia in the case of Bank Simpanan Nasional Finance Bhd &amp; anor v Omar Hashim (2002) 1 ILR 272 (Award NO. 1013 of 2005) explained the meaning of the term “secondment” as follows:</p> <p>“The ordinary dictionary meaning of secondment as a temporary transfer has on the face of it the connotation that the employee is subject to recall by his employer. So he is not a permanent employee of the other.”</p> <p>The same court in Come Services Asia Pacific Region, Miri v Grame Ashley Power (1987) 2 ILR 34 reinforced the idea of a temporary transfer stating:</p> <p>“<strong>Therefore so long as the contract is not terminated, a new contract is not made and the employee continues to be in the employment of the original employer. Even if the employer orders the employee to do certain work for another person, the employee still continues to be in his employment.</strong> The only thing that happens in such cases is that the employee carries out the orders of the master hence he has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such third party may pay his wages during the period he had hired his services, but that is because of his agreement with his real employer. However, that does not have the effect of transferring the service of the employee to the other employer. The hirer may exercise control and direction in the doing of the thing for which he has hired the employee; or even the manner in which it is to be done. But if the employee fails to carry out his direction he cannot dismiss him and can only complain to the actual employer. The right of dismissal is vested in the employer.</p> <p> </p> <p>I am persuaded that the above quotation aptly describes the Respondent’s position. <strong>In my view the Respondent’s secondment was informal as no fully detailed secondment agreement was put in place as envisaged by s 14 (2) of S.I 1/2000. Consequently the respondent continued to receive his remuneration as a member of the Public Service.</strong> <strong>If the appellant was to pay for respondent’s services, in my view, a detailed agreement would have been put in place.</strong> In the case of <em>Dairibord Zimbabwe Limited v Lazarus Muyambi</em> SC 22/2002 the terms and conditions of the secondment were set out in a contract of assignment entered into by the appellant and the respondent. Such a contract is missing <em>in casu</em>. <strong>I am not persuaded that bit can be implied from the circumstances of this case.” </strong>(emphasis added)</p> <p>The court <em>a quo</em> therefore found that (a) the appellant was not released by his employer, (b) he did not enter into any contract of employment with ZERC nor ZERA, (c) the contract of secondment cannot be inferred from the conduct of the parties and the provisions of ss 2 and 12 of the Labour Act.</p> <p> </p> <p>The issue for determination by this court is whether or not the court <em>a quo</em> correctly summarised the law and applied it to the facts of this case. Mr <em>Hashiti</em> for the appellant submitted that there was a contract of employment between the appellant and respondent. He submitted that the provisions of s 14 of the Public Service Regulations S.I 1/2000 as read with s 12 of the Labour Act [<em>Chapter 28;01</em>], and the conduct of the parties confirms that there was an agreement.</p> <p> </p> <p>Mr <em>Matinenga</em> for the respondent submitted that there is no valid appeal before the court as there is no appeal on a point of Law. He further submitted that if the appeal is valid there was no contract of employment between the appellant and the respondent.</p> <p> </p> <p>Mr <em>Matinenga</em>’s submission that there is no appeal on a point of Law has no merit. The appeal is against the court <em>a quo</em>’s interpretation of s 14 of the Public Service Regulations SI 1/2000 and ss 2 and 12 (2) of the Labour Act. The appellant’s first ground of appeal refers to the court <em>a quo</em>’s failure to properly interpret the dictates of s 14 of the Public Service Regulations as read with ss 2 and 12 of the Labour Act. That clearly raises a point of law.</p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations S.I. 1/2000, provides for the secondment of civil servants as follows;   </p> <p>“(1) A member may at any time with his consent and at the invitation of the Head of the Ministry or Commission, be seconded by the Commission for a period not exceeding three years to a post in an approved service.</p> <p>     (2)The terms and conditions of service of a member while on secondment shall, subject to any policy directive issued by the Commission, be governed by contract between the member and the approved service concerned.”</p> <p> </p> <p> </p> <p> </p> <p>Section 14(1) and (2) of the Public Service Regulations requires an employee who is seconded to enter into two contracts. The first contract is with his employer who will offer to second him to an approved service provider, which offer he can accept by giving his consent to the secondment. The secondment to be agreed upon should be “to a post in an approved service”.  The second contract is for the employee’s conditions of service which the employee enters into with the approved service provider to which his employer will have released him for secondment.</p> <p> </p> <p>If the agreement between the seconding employer and the employee to be seconded is for the employee to be released and seconded to a post in the approved service provider, then that institution and the employee must enter into an agreement which will govern the seconded employee’s conditions of service. The need for the second agreement depends on the agreement between the seconding employer and his employee. If for example the seconding employer wants his employee to continue working for it but also wants the employee to render services to a specified institution at its expense there will be no need for an agreement between the service provider and the employee. This is what the court <em>a quo</em> attempted to explain in the passage quoted above but unfortunately without fully analysing the provisions of s 14.</p> <p> </p> <p>The court <em>a quo</em>’s decision is correct though it should have adequately analysed s 14 and assessed the facts of this case against it starting from the intention of the seconding employer. The intention of the seconding employer is clearly explained in its memorandum dated 20 October 2009 on page 159 of the record, in which it explained the reason and nature of the secondment in issue. The memorandum reads;</p> <p>“To      Honourable Minister</p> <p>From    Permanent Secretary</p> <p>            Date      20 October 2009</p> <p> </p> <p><strong>Appointment of Ministry Officials To Run The Affairs Of Zimbabwe Electricity Regulatory Commission (ZERC)</strong></p> <p>   As you may recall ZERC was dissolved in order to pave way for the establishment of an all-encompassing Energy Regulatory Commission after the passage of the Energy Act by Parliament of Zimbabwe.</p> <p>   As you may also <strong>recall Eng. M. C Munodawafa was appointed to oversee the operations of ZERC.</strong></p> <p>   Eng M C Munodawafa has since been appointed Chief Executive Officer of the Zambezi River Authority. <strong>Therefore there is need to appoint persons to execute the functions of ZERC until the establishment of the Energy Regulatory Commission.</strong></p> <p>   I recommend that Mr P Mufunda and Mrs G Ngoma, Legal Advisor and Deputy Director for Policy and Planning respectively <strong>be appointed to administer ZERC.</strong> Mr P Mufunda shall take the leading role.”</p> <p> </p> <p> </p> <p>The Minister through a hand written endorsement to the Permanent Secretary’s letter agreed with the appellant’s appointment. He said:</p> <p>“<strong>The Chief Legal Officer may take the proposed role.</strong> While Mrs Ngoma is a good candidate she is a board member of ZESA so please substitute her with another member so that there is no direct conflict in roles” (emphasis added).</p> <p>  </p> <p> </p> <p>                        The Minister’s directive was implemented through a memorandum dated 21 October 2009 through which Mr Hugh Sagonda was appointed in place of Mrs Ngoma.</p> <p> </p> <p>It should be noted from these memoranda that the Ministry appointed its officers to carry out roles at ZERC. It did not second them in terms of s 14 (1) and (2) of SI 1/2000.  It did not second them to posts within ZERC. An appointment to a role by one’s own employer is not a secondment to a post in the service provider. In terms of s 14 (1) the role of the employer is to release the employee for appointment into a specified post by the approved service.</p> <p> </p> <p>The memorandum talks of the appointment of Ministry officials to run the affairs of ZERC. This means the persons being appointed would remain Ministry officials and were to run ZERC’s affairs in that capacity. This is confirmed by reference to M. C. Munodawafa having previously been appointed to oversee the operations of ZERC and the appellant being appointed to administer ZERC. These terms are not consistent with one being seconded in the capacity of an employee of the approved service. If that was the employer’s intention the post to be occupied in the approved service would have been specified. The employees were therefore not released by the Ministry. In the case of a secondment in terms of s 14 the approved service and not the original employer assigns duties to the employee. In this case it is the Ministry which assigned duties to the appellant. When the original employer assigns duties to be performed for the approved service it will not have released the employee. It will be assigning duties to its employee for the benefit of a third party.</p> <p> </p> <p>The determinant facts are that the employer did not release the appellant from his position within it. It did not mention a post to which he was to be appointed within ZERC. It clearly states that Ministry officials were to run the affairs of ZERC. The court <em>a quo</em> was therefore correct that what happened was an informal secondment because a real secondment can only take place when the employer and employee’s agreement is one in which the employer releases the employee to enable him to  go and take up employment in a specified post for a period not exceeding that stipulated in s 14.</p> <p> </p> <p>This explains why the appellant continued to perform duties for the Ministry and receiving his salary from the Public Service Commission.</p> <p> </p> <p>In view of my finding that the employer did not intend to release the appellant to take up a post in (ZERC) or (ZERA), Mr <em>Hashiti</em>’s submissions on the effect of the conduct of the parties and the meaning of ss 2 and 12 of the Labour Act does not warrant consideration. The parties’ conduct and the interpretation of ss 2 and 12 of the Labour Act cannot change the clear intention of the employer to assign the appellant a role as opposed to seconding him. They cannot change the appellant’s agreement with his employer from that of an informal secondment to a secondment in terms of s 14 of SI 1/2000.</p> <p> </p> <p>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement must, therefore, be dismissed.</p> <p> </p> <p>There is however an injustice caused by the Permanent Secretary. He backdated the allowance approved by the Minister to January 2010, when the appellant had been performing duties at ZERC since 20 October 2009. The appellant is entitled to the US$500.00 per month allowance for that period. There is no reason why he should not be paid for that period. The appellant raised this issue in the court <em>a quo</em> and in this Court. The respondent did not give any reasonable explanation for excluding that period from the authorised payment of allowances. The court <em>a quo</em> did not address its mind to this issue. Its decision in this regard must therefore be set aside.</p> <p> </p> <p>Both parties succeeded in part. Each party will therefore bear its own costs.</p> <p>In the result the decision of the court <em>a quo</em> is set aside and is substituted by the following:</p> <p>It is ordered that:</p> <ol> <li>The appellant’s appeal against the court <em>a quo</em>’s finding that there was no secondment agreement between him and the respondent be and is hereby dismissed.</li> <li>The appellant’s appeal against none payment of the US$500.00 per month allowance for the period 20 October to 31 December 2009 succeeds.</li> <li>The respondent is ordered to pay the appellant the US$500.00 per month allowance for the period 20 October 2009 to 31 December 2009.</li> <li>Each party shall bear its own costs</li> </ol> <p><strong>HLATSHWAYO JA</strong>                        I agree</p> <p><strong>MAVANGIRA JA</strong>                I agree</p> <p><em>Messrs Mtombeni Mukwesha &amp; Muzavazi,</em> Appellant’s Legal Practitioners.</p> <p><em>Messrs Kantor &amp; Immerman,</em> Respondents Legal Practitioners.   </p> </div></div></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/2016/9/2016-zwsc-9.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41143">2016-zwsc-9.docx</a></span></div><div class="field-item 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/2016/9/2016-zwsc-9.pdf" type="application/pdf; length=414968">2016-zwsc-9.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/conditions-employment">Conditions of employment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/remuneration">Remuneration</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, 28 Mar 2018 14:00:04 +0000 admin 8657 at https://old.zimlii.org S v Kencor Management Services (Pvt) Ltd. (HH 70-17 CRB 6685/16, HH 0234456, HC 3184/19) [2017] ZWHHC 70 (09 January 2017); https://old.zimlii.org/zw/judgment/harare-high-court/2017/70 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1</p> <p>HH 70-17</p> <p>CRB 6685/16</p> <p> </p> <p>THE STATE</p> <p>versus</p> <p>KENCOR MANAGEMENT SERVICES (PRIVATE) LTD.</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHATUKUTA J</p> <p>HARARE, 9 January 2017</p> <p> </p> <p> </p> <p><strong>Review Judgment</strong></p> <p> </p> <p>            CHATUKUTA J: This matter was referred for review by the court <em>a quo</em> with the following comments:  </p> <p>“This matter came before me for trial <em>de novo</em> on the 4th of July 2016. The matter was being dealt with by my brother magistrate Mr E Makomo, who recused himself at the close of the state case because of reasons contained of record. The legal practitioners of the accused argued that I could not deal with the trial without the proceedings of my brother magistrate being set aside by the High Court.</p> <p> </p> <p>I am in agreement with her argument after reading:</p> <p> </p> <p><em>AG</em> v <em>Gavaza</em> 1984 (2) Zim 212 SC, which held that:</p> <p> </p> <p>‘as a matter of practise, where the Judicial Officer is a magistrate the proceedings are submitted for review by the High Court and a declaration of nullity is made leaving the way open for a fresh trial to be  brought….’</p> <p> </p> <p>In light of the above, the record is placed before you for a declaration of nullity so that a fresh trial may be heard.”</p> <p> </p> <p>The background to the matter is that the accused was charged on 15 June 2016 with contravening s 13 (2) of the Labour Act [<em>Chapter 28:01</em>]<em>. </em>It was alleged that the company withheld or unreasonably delayed paying wages due to the complainant without the relevant Minister’s permission. The accused pleaded not guilty to the charge. The State lead evidence from the complainant and closed its case. The accused applied for discharge at the close of the State case on the basis that the State had failed to establish a <em>prima facie</em> case warranting the placement of the accused on its defence. </p> <p>            It appears that before the trial magistrate had determined the application for discharge, the complainant prepared a written complaint against the prosecutors who had dealt with the matter and the accused’s legal practitioner. A copy of the complaint was unceremoniously slipped under the trial magistrate’s door despite the fact that the complaint was not against him.</p> <p>            The trial magistrate was concerned that the letter contained issues that would compromise his impartiality. He consequently recused himself before determining the application for discharge.    </p> <p>            The matter was reset for continuation on 4 July 2016 before a different magistrate. The accused objected to the continuation of the trial before the magistrate and applied for its removal from remand pending the setting aside of the proceedings on review, hence the referral of the matter on review. The accused relied on the provisions of 180 (6) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>].</p> <p>            Section 180 (6) reads:</p> <p>“Any person who has been called upon to plead to an indictment, summons or charge shall, except as is otherwise provided in this Act or in any other enactment, be entitled to demand that he be either acquitted or found guilty by the judge or magistrate before whom he pleaded:</p> <p> </p> <p>Provided that:</p> <p> </p> <p>(i)         where a plea of not guilty has been recorded, whether in terms of section two hundred and seventy-two (<em>272</em>) or otherwise, the trial may be continued before another judge or magistrate if no evidence has been adduced;  </p> <p>(ii)        ……”</p> <p> </p> <p>In the present matter, evidence was adduced from the complainant before the State closed its case. The accused would have been entitled to a verdict had the trial magistrate not recused himself. The matter could therefore not continue before another magistrate as rightly submitted by the accused. The procedure that should be adopted under the circumstances was discussed, as rightly noted by the new trial magistrate, in <em>AG </em>v <em>Gavaza</em> 1984 (2) ZLR 212. In that case the Supreme Court had the occasion to discuss s 163 (5) of the Criminal Procedure and Evidence Act [<em>Chapter 59</em>], which was similar to s 180 (6). Gubbay ACJ (as he then was) remarked at 216 B-D that:</p> <p>“The position then which obtains is that s 163 (5) of the Act contemplates that the judicial officer before whom the accused has pleaded remains available to hear the whole of the trial. If he should become no longer available by reason of retirement, resignation or discharge from the service, death, physical or mental incapacity which is likely to persist for a considerable period, or recusal, he becomes <em>functus officio.</em> The proceedings are aborted and become void. As a matter of practice, where the judicial officer is a magistrate, the proceedings are submitted for review by the High Court and a declaration of nullity is made, leaving the way open for a fresh trial to be brought. (See also <em>S </em>v <em>Makoni &amp; Ors</em> 1975 (2) RLR 75, <em>S </em>v <em>Godfrey &amp; Ors</em> G-S 100 1976).”</p> <p> </p> <p>            In <em>Gavaza</em>, there was no indication on record whether or not any of the abortive events cited therein had occurred. However, the ratio which emerges from the judgment is that recusal by the trial magistrate is one such abortive event.</p> <p>            A case in point where the trial magistrate had recused himself/herself is <em>Zackey </em>v <em>Magistrate of Benoni &amp; Anor </em>1957 (3) SA 12 where Williamson J observed at 14 A that:</p> <p>“But it seems to me that (a decision to recuse oneself) must amount to a decision that the court has no jurisdiction to hear the matter. Once that is decided, the court cannot be properly seized of the matter at all, and all the proceedings before that court prior to the recusation being accepted must logically become a nullity.”</p> <p> </p> <p>In <em>S </em>v <em>Gwala</em> 1969 (2) SA 227 @ 229 A, Kennedy AJP observed at 229 A that:</p> <p>“Clearly, such officer becomes <em>functus officio</em> upon his recusal and, the prosecutor desiring to proceed with the case, it becomes necessary to have a completely new hearing. Equally so the death of a magistrate, his resignation or dismissal could give rise to the opening of a case <em>de</em> <em>novo</em> against an accused person.”</p> <p>(See <em>S </em>v <em>Tsangaizi </em>1997 (2) ZLR 247 (H)).</p> <p> </p> <p>The reason why another magistrate cannot continue with a trial commenced by another magistrate and where evidence has been adduced appears to be that, a trial magistrate must, in arriving at a determination, consider among other factors the credibility of the witness(es). The trial magistrate would of necessity be influenced by the demeanour of the witness(es). Such a determination cannot, in my view, be arrived at on the basis of evidence contained in the record and adduced before another magistrate.</p> <p>            Whilst it is difficult to comprehend the reason advanced by the trial magistrate in the present matter for recusal where no impropriety was levelled against him, the trial magistrate is now <em>functus officio</em>. It serves no purpose to dwell on the propriety of his decision more particularly where the recusal is not the issue for determination in this review. The trial magistrate having recused himself, the trial must proceed afresh.</p> <p>It is accordingly ordered that:</p> <p> </p> <ol> <li>The proceedings commenced before recusal be and are hereby quashed.</li> <li>The matter is remitted for trial <em>de novo</em> before the magistrate who referred the matter for review.</li> </ol> <p> </p> <p> </p> <p>CHITAPI J: agrees …………………….</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/2017/70/2017-zwhhc-70.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21112">2017-zwhhc-70.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/2017/70/2017-zwhhc-70.pdf" type="application/pdf; length=281510">2017-zwhhc-70.pdf</a></span></div><div class="field-item even"><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/2017/70/2017-zwhhc-70_0.pdf" type="application/pdf; length=46756">2017-zwhhc-70.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/remuneration">Remuneration</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/wages-and-salaries">Wages and salaries</a></li></ul></span><div class="field field-name-field-search-summary field-type-text-long field-label-above"><div class="field-label">Search Summary:&nbsp;</div><div class="field-items"><div class="field-item even">THIS JUDGMENT HAS BEEN UPDATED BY COURT ORDER HH 0234456 Case No. HC 3184/19 which states: IT IS ORDERED THAT : 1. The judgment issued out under HH-70-17 be varied so that the name of Lance Kennedy be and is hereby removed in the citation of the parties and is substituted with Kencor Management Services (Private) Limited. 2. The Clerk of the Criminal Court, Provincial Magistrates Court, Harare be and is hereby directed to ensure that the record of proceedings under CRB 6685/2016 reflects the correct parties as set out in paragraph 1 above. 3. There be no order as to costs. ---- A trial magistrate recused himself at the close of the State case after a letter of complaint against the prosecutor and accused’s legal practitioner, which had been slipped under his door, led him to be concerned that the letter contained issues which might compromise his impartiality. Held: When the judicial officer before whom the accused has pleaded becomes no longer available by reason of retirement, resignation or discharge from the service, death, physical or mental incapacity which is likely to persist for a considerable period, or recusal, he becomes functus officio. The proceedings become void. As a matter of practice, where the judicial officer is a magistrate, the proceedings are submitted for review by the High Court and a declaration of nullity is made, leaving the way open for a fresh trial to be brought. </div></div></div><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p><strong>Court – judicial officer – recusal – magistrate – partly </strong><strong>completed proceedings – need for matter to be submitted to High Court for proceedings to be quashed before fresh trial may take place</strong></p> </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/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 09 Mar 2017 10:18:00 +0000 admin 7843 at https://old.zimlii.org