Retrenchment https://old.zimlii.org/taxonomy/term/10437/all en Mazarire v The Retrenchment Board & Anor (SC 105-20) [2020] ZWSC 105 (17 July 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/105 <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>        (96)</strong></p> <p> </p> <p><strong>CHRISTMAS     MAZARIRE</strong></p> <p><strong>v</strong></p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, GOWORA JA &amp; HLATSHWAYO JA</strong></p> <p><strong>HARARE: JUNE 10, 2019 &amp; JULY 17, 2020</strong></p> <p> </p> <p> </p> <p>Appellant in person</p> <p>No appearance for first respondent</p> <p><em>T. Magwaliba</em> for second Respondent</p> <p> </p> <p><strong>MAKARAU JA:</strong>  On 12 October 2015, the first respondent declined jurisdiction to quantify the appellant’s retrenchment package upon the termination of his employment with the second respondent. Aggrieved by the decision, the appellant brought a review application before the Labour Court, seeking among other relief, to have the first respondent’s decision set aside. He was unsuccessful. This is an appeal against the entire judgment of the Labour Court handed down on 4 November 2016, dismissing with costs, the application for review.</p> <p> </p> <p><strong>Background facts</strong></p> <p>The appellant was employed by the second respondent as General Manager (Risk). By letter dated 6 March 2014, the second respondent advised the appellant of its intention to terminate his services by way of retrenchment. The termination of services was to be effective on 31 March 2014.</p> <p>A dispute arose between the parties as to the package payable to the appellant upon retrenchment. On 3 April 2014, the second respondent referred the dispute to the first respondent.</p> <p> </p> <p>The first respondent heard the referral on 26 June 2014. It declined to determine the matter which it referred back to the employer, the second respondent. The first respondent’s reasons for declining jurisdiction and referring the dispute back to the employer are not on record. They are not necessary for the determination of this appeal.</p> <p> </p> <p>Subsequently, the second respondent issued the appellant with a “notice to retrench” after reinstating his salary in full. The dispute relating to the package payable to the appellant upon retrenchment remained unresolved and was referred back to the first respondent. Through a process that has not been fully explained in the papers filed of record, the matter was escalated to and was resolved by the Minister of Public Service, Labour and Social Welfare who, on 2 March 2015, authorised the second respondent to retrench the appellant. It is common cause that before approving the retrenchment of the appellant, the Minister received recommendations from the first respondent.</p> <p> </p> <p>It is further common cause that the appellant’s retrenchment was approved on condition the second respondent paid a gratuity equivalent to one month’s salary for every year of service, a stabilisation allowance equivalent to two month’s salary and a severance payment equivalent to 13,5 month’s salary.  </p> <p> </p> <p>In implementing the retrenchment, the second respondent used the appellant’s pensionable salary to quantify the total package payable. This dissatisfied the appellant who, contended that the second respondent ought to have used his total guaranteed monthly salary as the basis of the quantification. He referred the matter back to the first respondent, seeking determination of the dispute as to what would constitute an accurate computation of his package. This referral would constitute the third referral of the dispute to the first respondent.</p> <p> </p> <p>The first respondent did not set the matter down for hearing. In a letter addressed to the parties and dated 12 October 2015, it declined jurisdiction in the following terms:</p> <p><em>“</em>Kindly be advised that the Retrenchment Board has no jurisdiction over disputes arising from terms and conditions of employment.</p> <p>Please refer the matter to a labour officer as per s 93 of the Labour Act <em>Chapter 28.01”</em></p> <p> </p> <p>Contending that the first respondent had acted irregularly in abdication of its statutory duty by declining jurisdiction in the matter, the appellant filed an application for review in the court <em>a quo.</em>  As indicated above, the court <em>a quo</em> dismissed the application with an appropriate order of costs.</p> <p> </p> <p><strong>The proceedings <em>a quo</em></strong></p> <p>In his application for review the appellant alleged that the first respondent had acted irregularly in <em>inter alia</em> declining jurisdiction in the matter when the statute setting it up empowered it to act as requested. It was his argument that the issue of the correct formula to be used in computing his retrenchment package had remained undetermined notwithstanding that it was one of the deadlocked positions that had been referred to the first respondent in March 2015 before the Minister approved the appellant’s retrenchment. It was his further contention that the first respondent had irregularly and incompetently directed that the dispute be referred to a labour officer, who in the circumstances of the matter, had no jurisdiction over the retrenchment of the appellant.</p> <p> </p> <p>The first respondent did not oppose the application.</p> <p> </p> <p>The second respondent did. It contended that the first respondent was correct in declining jurisdiction in the matter. In the main and against the main thrust of the appellant’s contentions, it contended that once the first respondent had made its recommendations to the Minister on the retrenchment package, it became <em>functus</em>, having discharged its statutory duties. It further argued that the decision to retrench was ultimately that of the Minister and if the appellant was unhappy with the implementation of the Minister’s decision, his relief lay in appealing against or bringing that decision on review.</p> <p> </p> <p>After finding that the grievance by the appellant was against the Minister who made the final computation of the retrenchment package, the court dismissed the application for review with an appropriate order of costs.</p> <p> </p> <p>Aggrieved by that decision the appellant noted this appeal.</p> <p> </p> <p><strong>The appeal</strong></p> <p>The appellant raised two grounds of appeal as follows:</p> <ol> <li>The court <em>a quo</em> grossly erred and misdirected itself on the facts and the law by failing to determine whether or not the first respondent‘s decision to decline jurisdiction was proper.</li> <li>The court <em>a quo</em> erred on a point of law and further grossly erred and misdirected itself on the facts which error amounts to an error of law by dismissing the appellant’s application for review inter alia on the following grounds:</li> </ol> <p>“(a)   That the Minister had made “… the final computation of the package…” on the recommendations of the first respondent, hence it was the Minister’s decision which should have been challenged;</p> <ul> <li>That the decision which the applicant is not happy with is that of the Minister when it is common cause that the appellant was not happy with the second respondent’s unilateral interpretation of the word “salary” and upon representations thereto, the first respondent declined jurisdiction.”</li> </ul> <p> </p> <p>The issue that arises in this appeal is therefore whether the court <em>a quo</em> erred in failing to determine the issue that was before it or alternatively, in determining the issue after misdirecting itself on the facts.</p> <p> </p> <p><strong>The law</strong></p> <p>It is a settled position at law that failure to determine a material issue that is before the court is a gross irregularity that vitiates the decision made.</p> <p> </p> <p>The broad position of the law was recognised by <strong>UCHENA JA</strong> <em>in Nzara and Ors v Kashumba and Ors </em>SC 18/18 where he had this to say:</p> <p>“A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.”</p> <p> </p> <p> </p> <p>Thus the general and trite position of the law that requires no further debate is that a court cannot go on a frolic of its own and determine the dispute before it by raising its own issues or facts and resolving the dispute on such.</p> <p> </p> <p>Looking at the basic role of the court from a slightly different angle, <strong>GOWORA JA</strong> in <em>PG Industries v Bvekerwa</em> SC 53/16 observed that:</p> <p>“The position is settled that where there is a dispute on a question, be it 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.”</p> <p> </p> <p>Whilst <strong>GOWORA JA</strong> in<em> PG Industries v Bvekerwa</em> (<em>supra</em>) was dealing with a case where the lower court had failed to deal with a preliminary issue that arose in the matter before it, the position still holds that even where there is a sole issue to be determined and the court does not determine that issue but focuses on irrelevant or incorrect issues, the failure to deal with the correct issue is fatal to the proceedings.</p> <p> </p> <p>There are a number of other legal principles that converge to discourage a court from going on a frolic of its own and determining a matter on an issue that is not raised by the parties in their papers and arguments. These include the duty of the court, where it is of the view that a certain factual or legal position is dispositive of the matter before it, to invite the parties to address it on the point before resolving the dispute wholly or partly on the point.  A detailed discussion of this and other principles is not necessary in this appeal as there was no dispute as to the applicable law.</p> <p> </p> <p><strong>Analysis</strong></p> <p>As stated above, the issue before the court was whether the refusal by the first respondent to exercise jurisdiction in the third referral of the dispute to it by the appellant was irregularly made.</p> <p> </p> <p>A reading of the judgment <em>a quo</em> indicates that the court appears to have laboured under the erroneous understanding that the review before it related to the second referral of the matter to the first respondent, which led to the Minister of Public Service, Labour and Social Welfare Minister stepping in and approving the retrenchment of the appellant on 2 March 2015. This appears from the passage in the judgment <em>a quo</em> containing the ratio of the decision, which reads:</p> <p>“Page 154-155 of the record shows that the Minister eventually made a decision after the Retrenchment Board’ recommendation. Section 12 (8)  of the Labour Act states that even where the Board fails to make a recommendation, the Minister can still get relevant documentation and still make a decision. In this case it is the Minister who made the decision after recommendations from the Board. It is this court’s view that the grievance in this case is against the Minister who made the final computation of the package…. The Minister made the decision and thus the complaint should be raised against the Minister and not the Board which merely made recommendations.” (The underlining is mine).</p> <p> </p> <p>With respect, the decision of the first respondent that was under the spotlight was not on the second referral of the matter in March 2014 but on the third referral, which decision was communicated to the parties on 12 October 2015.</p> <p> </p> <p>I note that the court <em>a quo</em> does not at any stage advert to this decision in its judgment.</p> <p> </p> <p>Having made this first error, the court <em>a quo</em> fell into the second and more serious error which vitiates its decision. It formulated its own issues for determination. Firstly, it formed the view that the issue before it was “the computation of the retrenchment package” due to the appellant.   Whilst the computation of the package was at the centre of the dispute between the parties, it was not the immediate issue that fell to be determined in the review application <em>a quo</em>.  As indicated above, the immediate issue to be determined was whether the second denial of jurisdiction by the first respondent over the matter was properly arrived at. Secondly, and as building up to its <em>ratio</em>, the court <em>a quo</em> raised and determined an issue that was not an issue for the parties. It made a finding that the final package had been computed by the Minister. This finding was against the common position of both parties. It was common cause that the computation of the package had been done by the second respondent and not by the Minister. Therefore the identity of who made the final computation of the appellant’s retirement package was not in issue and was therefore not a point on which a finding by the court was necessary.</p> <p> </p> <p>I further note in passing that had the court <em>a quo</em> canvassed with counsel its view of the turning point in the application for review and the facts which it thought were in dispute between the parties, an eminently prudent practice for any court, this appeal may have been obviated. However, this was not so.</p> <p> </p> <p>I find merit in the appellant’s grounds of appeal. The court <em>a quo</em> failed to determine the issue that was before it. It raised its own and gravely misconstrued the facts giving rise to the dispute in resolving the issue it had raised for itself.</p> <p> </p> <p><strong>Disposition</strong></p> <p>Having fallen into error in not only formulating the incorrect issue for its determination but in basing its decision on incorrect facts, the decision of the court <em>a quo</em> cannot stand. It must be set aside and the matter remitted for fresh determination.</p> <p> </p> <p>Costs of this appeal will follow the cause. I see no reason for departing from this general position in this appeal.</p> <p> </p> <p>In the result I make the following order:</p> <ol> <li>The appeal is allowed with costs.</li> <li>The decision of the court <em>a quo</em> is set aside.</li> <li>The matter is remitted to the court <em>a quo</em> for determination <em>de novo.</em></li> </ol> <p> </p> <p> </p> <p><strong>GOWORA JA:</strong>                                  I agree</p> <p> </p> <p> </p> <p><strong>HLATSHWAYO JA:</strong>                       I agree</p> <p> </p> <p> </p> <p><em>Wintertons</em>, 2nd respondent’s legal practitioners.</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/2020/105/2020-zwsc-105.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33642">2020-zwsc-105.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/2020/105/2020-zwsc-105.pdf" type="application/pdf; length=351122">2020-zwsc-105.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/retrenchment">Retrenchment</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/2018/18">Nzara &amp; 3 Others v Kashumba N.O. &amp; 3 Others (SC18/18, Civil Appeal No. 137/16) [2018] ZWSC 18 (12 March 2018);</a></div><div class="field-item odd"><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></div> Thu, 20 Aug 2020 07:40:06 +0000 Sandra 9843 at https://old.zimlii.org Isoquant Invetsments (Private) Limited t/a Zimoco v Darikwa (CCZ 6-20, Constitutional Application No. CCZ 68/17) [2020] ZWCC 6 (30 May 2018); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2018/6-0 <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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/6/2020-zwcc-6.pdf" type="application/pdf; length=521325">2020-zwcc-6.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/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-relations-officer">Labour relations officer</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/retrenchment">Retrenchment</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/constitutional-court-zimbabwe/2015/8">Nyamande &amp; Another v ZUVA Petroleum (CCZ 8/15 Civil Application No. CCZ 62/15) [2015] ZWCC 8 (01 August 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2006/73">Tsvangirai v Mugabe and Another ((08/05)) [2006] ZWSC 73 (13 February 2006);</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/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item even"><a href="/zw/legislation/act/2015/52015">Labour Amendment Act, 2015</a></div></div></div> Mon, 20 Jul 2020 09:28:25 +0000 Sandra 9798 at https://old.zimlii.org ARDA v Baureni & 18 Others (SC 16/19, Case No. SC 284/18) [2019] ZWSC 16 (26 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/16 <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>REPORTABLE (4)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>AGRICULTURAL     AND     RURAL     DEVELOPMENT     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>FRANCIS     BAURENI     AND     18     0THERS</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, PATEL JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, OCTOBER 29, 2018 &amp; FEBRUARY 26, 2019</strong></p> <p> </p> <p><em>F. Mahere</em>, for the appellant</p> <p><em>S. Hashiti </em>and<em> C. Takaendesa</em>, for the respondents</p> <p><strong>PATEL JA:</strong>    This is an appeal against the judgment of the Labour Court dismissing an appeal and review application instituted by the appellant against a decision of the Retrenchment Board (the Board). The decision was communicated to the parties on 28 April 2017.</p> <p>Background</p> <p>The respondents were employed by the appellant in various capacities. Their contracts were terminated on three months’ notice in November 2015 without the payment of any terminal benefits. They lodged a complaint with the Ministry of Labour on 6 September 2016. The parties filed their submissions before a labour officer and the matter was set down for hearing on 21 February 2017. On that date, the appellant applied for the hearing to be rolled over to 7 March 2017. This request was granted. In the intervening period, at some stage before the end of February 2017, the appellant filed an application with the Board for an exemption from having to pay the minimum retrenchment packages stipulated by statute.</p> <p>           On 3 March 2017, the Board called the parties to notify them that the matter had been set down for hearing on 9 March 2017. The hearing was conducted as scheduled on that day and the Board then directed the parties to file further submissions. That directive was duly complied with by the respondents on 15 March 2017 and by the appellant on 16 March 2017. The Board made its determination on 30 March 2017 but only communicated that decision to the parties on 28 April 2017. It ordered the appellant to pay to each respondent the equivalent of one month’s salary for every two years served. Half of the respective amounts due was to be paid by 30 April 2017, while the remainder was to be paid over six months from May to October 2017. The appellant then noted an appeal and an application for review to the Labour Court. The court found in favour of the respondents which prompted the present appeal.</p> <p>Labour Court Judgment</p> <p>As regards the substance of the Board’s determination, the court <em>a quo</em> noted that the appellant had previously applied to retrench some of its workforce. At that time, in June 2015, there was a letter from the chairman of the appellant’s works council intimating that the proposed retrenchment was due to a change in the appellant’s business model and strategy. The issue of its financial incapacity was only raised in 2017.</p> <p>The court <em>a quo</em> further noted that the appellant’s audited financial statements that were on record only went up to 31 December 2013. Moreover, its unaudited financial statements for 2014, 2015 and 2016 were not on record. Thus, when the Board sat on 30 March 2017 to decide the application for exemption, the appellant’s financial position was not known. In those circumstances, the appellant having failed to demonstrate its inability to pay the retrenchment packages as at the time when it applied for exemption, the Board’s determination could not be faulted as having been grossly unreasonable.</p> <p>The court <em>a quo</em> also rejected the appellant’s argument that its application for exemption must be deemed to have been granted by operation of law, in terms of s 12C(3) of the Labour Act [<em>Chapter 28:01</em>], because the Board had failed to respond to the application within 14 days after it was lodged. The court found that the provision did not require the Board to determine the application within 14 days. What was required was that the Board should respond to the application within that period and it had effectively done so by calling the parties on 3 March 2017 to appear for a hearing on 9 March 2017.</p> <p>The final issue raised before the court <em>a quo</em> was an attack against the Board for having awarded packages based on a provision contrary to the Constitution of Zimbabwe. Since this aspect was not elaborated by the appellant in its heads of argument or oral submissions before the court, it was considered as having been abandoned. In the event, the court dismissed with costs both the appeal and the review application before it for lack of merit.</p> <p> </p> <p>Grounds of Appeal</p> <p>The first ground of appeal challenges the constitutionality of the provision introduced by the Labour Amendment Act No. 5 of 2015, stipulating the retrospective payment of minimum retrenchment packages to employees who were dismissed on notice. At the hearing of the appeal, Ms <em>Mahere</em>, for the appellant, conceded that this ground could not be persisted with in light of the decision of the Constitutional Court in <em>Greatermans Stores (1979) (Pvt) Ltd &amp; Ors</em> v <em>Minister of Labour</em> CCZ 2/2018. She quite correctly agreed to abandon this ground.</p> <p> </p> <p>The second ground of appeal relates to the argument that the appellant’s application for exemption must be deemed to have been granted by operation of law because the Board’s response was made more than 14 days after receiving the request for exemption. This ground hinges on the correct interpretation of s 12C(3) and related provisions of the Labour Act.</p> <p> </p> <p>The third and fourth grounds of appeal are intimately interrelated and will be treated and dealt with accordingly. They pertain to the appellant’s financial capacity to pay the minimum retrenchment packages. In essence, the appellant’s position is that it placed authentic evidence before the Board to demonstrate its financial incapacity and that the Board, without demanding further proof in that regard, made a determination that was grossly unreasonable in light of all the evidence placed before it.</p> <p> </p> <p>Deemed Grant of Exemption by Operation of Law</p> <p>Section 12C of the Labour Act, which was introduced by s 5 of Act No. 5 of 2015, regulates the process of retrenchment and compensation for loss of employment on retrenchment or in terms of s 12(4a), <em>i.e.</em> upon termination on notice. In subss (3) and (4), which are relevant for present purposes, it states as follows:</p> <p>“(3) Where an employer alleges financial incapacity and consequent inability to pay the minimum retrenchment package timeously or at all, the employer shall apply in writing to be exempted from paying the full minimum retrenchment package or any part of it to—</p> <p>(<em>a</em>) the employment council established for the undertaking or industry; or</p> <p>(<em>b</em>) if there is no employment council for the undertaking concerned, to the Retrenchment Board;</p> <p>which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted).</p> <p>  (4) In considering its response to a request for exemption in terms of subsection (3) the employment council or Retrenchment Board—</p> <p>(<em>a</em>) shall, where the employer alleges complete inability to pay the minimum retrenchment package, be entitled to demand and receive such proof as it considers requisite to satisfy itself that the employer is so unable, and if so unable on the date when the notice of termination of employment takes effect, may propose to the employer a scheme to pay the minimum retrenchment package by instalments over a period of time;</p> <p>(<em>b</em>) shall, where the employer offers to pay the minimum retrenchment package by instalments over a period of time, consider whether the offer is a reasonable one, and may propose an alternative payment schedule;</p> <p>(<em>c</em>) may inquire from the employer whether he or she has considered, or may wish to consider, specifically or in general, the alternatives to termination of employment provided for in section 12D.”</p> <p> </p> <p> </p> <p>The crisp issue for determination <em>in casu</em>, as I perceive it, is this: Do the words “respond” and “response”, as used in s 12C(3) as read with s 12C(4) of the Labour Act, mean “definitively decide or determine” within the prescribed period of 14 days, or do they mean something entirely different in keeping with the ordinary usage of those words?</p> <p> </p> <p>Ms <em>Mahere</em>, for the appellant, submits that to respond in the context of s 12C is to give a final answer or determination. The intention is to ensure that every application for exemption is determined expeditiously.  Section 12C(4) highlights the factors that have to be considered before delivering a response, <em>i.e.</em> a final determination under s 12C(3). The language of the latter provision is peremptory and the courts cannot allow any extension of the stipulated 14 day period. In the instant case, the final determination was made well beyond that period and, therefore, the exemption sought by the appellant must be deemed to have been granted by operation of law.</p> <p> </p> <p>Mr <em>Hashiti</em>, for the respondents, submits that the ordinary meaning of respond is that the Board must communicate its receipt of the application for exemption. Section 12C(4) allows the Board to demand further proof and consider other matters. It is clear that a response means something other than a final determination. In any event, a 14 day period is simply not enough for all the necessary processes and decisions to be concluded. Mr <em>Hashiti</em> also notes that the appellant responded on 16 March 2017 to the Board’s directive for further submissions to be made. The appellant thereby accepted that the directive complied with the law. If it believed that its application had been granted, it ought to have protested and refused to comply with the directive. Furthermore, the appellant itself delayed its submissions to the Board and, therefore, cannot complain that the Board failed to comply with the law.</p> <p> </p> <p>The word “respond”, in its ordinary connotation, means “to say or do something as a reaction to something that has been said or done” (<em>per</em> the Cambridge English Dictionary). The word clearly does not denote anything akin to a final or definitive decision on anything raised by one person for a response to be given by another. Rather, it signifies an exchange of words or conduct between one or more individuals.</p> <p> </p> <p>In the present context, the ordinary meaning of “respond” necessitates that the Board should react to an application for exemption within 14 days. In considering its response, the Board is vested with the power to demand and receive such proof as it considers requisite to satisfy itself that the employer concerned is completely unable to pay the minimum retrenchment package. It is also entitled to propose a scheme to pay the package by instalments or an alternative payment schedule and to request the employer to consider other available alternatives to termination of employment. My reading of s 12C(4) is that it provides a guiding template for the Board in considering its response to an application for exemption. In my view, it does not, as is contended on behalf of the appellant, operate to transmute the ordinary meaning of “respond” into one necessitating that the Board make a final and definitive determination within 14 days.</p> <p> </p> <p>It is trite that the words used in any statutory enactment must be given their plain and grammatical signification, unless to do so would lead to some manifest absurdity, inconsistency or repugnancy. The interpretation of ss 12C(3) and 12C(4) that I am inclined to adopt is entirely concordant with the plain meaning of the words “respond” and “response” as used in those provisions. It certainly does not entail any absurd, inconsistent or repugnant eventuality or outcome.</p> <p> </p> <p>On the other hand, the interpretation advanced on behalf of the appellant would lead to several possible absurdities and anomalies. First and foremost, it would require the Board to analyse and evaluate all the relevant facts and figures pertaining to the solvency of the employer and the relevant records of the employees affected within a very short span of two weeks. Secondly, the employer himself would be constrained to provide the requisite proof of its inability to pay, if such is demanded by the Board, and may well fail to do so to the satisfaction of the Board within that short period. By the same token, he would certainly need more than two weeks to meaningfully consider and react to any alternative payment scheme or schedule or possible alternatives to termination of employment that might be proposed by the Board.</p> <p> </p> <p>In the final analysis, I take the view that the legislature could not possibly have intended that the complex processes enjoined in the orderly and equitable implementation of s 12C should be concluded and finalised within the limited time frame of only 14 days. To obligate both the Board and the employer concerned to make hurried and ill-considered choices and decisions would certainly not serve the interests of justice at the workplace as contemplated by s 2A of the Labour Act. As I have already indicated, a liberal and expansive interpretation of s 12C is in the best interests not only of the employees but also of the employer.</p> <p> </p> <p>To conclude on this aspect, it is common cause that the Board called the parties within the prescribed period of 14 days to convene a hearing, which hearing also appears to have taken place within that period. It is also common cause that at that hearing the Board, as it was entitled to do, directed the parties to file further submissions. It follows that the Board duly complied with its obligation to respond to the appellant’s application for exemption within the stipulated 14 days. It also follows that the application cannot be deemed to have been granted by operation of law by dint of any alleged failure to timeously respond to the application.</p> <p> </p> <p>Evidence of Financial Incapacity</p> <p>The evidence presented by the appellant to the Board to establish its incapacity to pay the respondents comprises two CBZ Bank statements and its financial statements from 2009 – 2015. However, the appellant’s audited financial statements only go up to 31 December 2013. For the period thereafter, only unaudited financial statements were produced, apparently because the appellant had failed to pay its erstwhile auditors. Moreover, before the Labour Court, even the unaudited financial statements were not produced or filed of record.</p> <p> </p> <p>As regards the appellant’s bank statements, the first statement covers the period from 1 December 2016 to 3 January 2017 and reflects a negative balance of $1,045,267.83. The second statement ranges from 1 December 2016 to 31 January 2017 and shows a negative closing balance of $6,960.61. According to Ms <em>Mahere</em>, the appellant claims that these statements relate to its only two bank accounts and this claim has not been disputed.</p> <p> </p> <p>Turning to the appellant’s financial statements, the last audited statement for 2013 reveals an operating loss of $5,720,825.00. It also shows a bank overdraft of $6,838,990.00. For the period thereafter, <em>i.e.</em> from 2014 – 2016, there are no audited financial statements. In this respect, Ms <em>Mahere</em> contends that the Board did not ask for audited statements and that it was reasonable for the appellant to provide what it had. The unaudited statements for 2014 – 2016 were placed before the Board but were rejected for having been unaudited. As I have already indicated, these unaudited statements do not form part of the record and Ms <em>Mahere</em> was unable to proffer any explanation for their omission from the record.</p> <p> </p> <p>Mr <em>Hashiti</em> submits that the CBZ Bank statements do not show the aggregate of the appellant’s assets. Furthermore, the first statement alluded to above shows several substantial credits to the bank account and there may have been further credits after the last stated entry for 31 December 2016. Mr <em>Hashiti</em> also refers to a letter dated 3 June 2015 from the chairman of the appellant’s works council written to the Board in support of the proposed retrenchment of 18 employees. The reason given then for that retrenchment was stated to be the fact that the appellant “has totally changed its Business Strategy and Operating Model”. There is nothing in that letter to indicate that the appellant was unable at that time to pay the proposed retrenchment packages or to viably conduct its financial affairs.</p> <p> </p> <p>Having regard to the totality of the evidence before us, it is abundantly clear from the record that the appellant has dismally failed to justify its claim of its incapacity to pay, both before the Board and in the Labour Court. This is compounded by the fact that even its unaudited financial statements for 2014 to 2016 were not availed to the court <em>a quo</em>. Worse still, they inexplicably do not form part of the appeal record.</p> <p> </p> <p>I fully agree with counsel for the respondents that the two CBZ Bank statements do not in themselves support the appellant’s position. At best, they evince a temporary current account illiquidity. More telling is the last available audited financial statement for 2013. Although this statement reflects a significant operating loss and large bank overdraft, it also reveals a substantial asset base vested in the appellant. This consists of non-current assets amounting to $131,265,466.00 and current assets in the sum of $14,696,626.00, rendering a grand total of $145,962,092.00. This is obviously counter-balanced, as a matter of accounting practice, by the appellant’s equity and liabilities, but that does not detract from the appellant’s considerable and sizeable assets as at the end of 2013. And there is nothing on record to indicate that those assets have been depleted or dissipated in the intervening period leading up to the events of 2017.</p> <p> </p> <p>The onus clearly lay on the appellant to show that it should be exempted from paying the minimum retrenchment packages due to the respondents. As I have already stated, it failed to produce any meaningful evidence to substantiate its claim of insolvency or incapacity to pay the paltry sum of $55,000.00 that was ordered by the Board to be paid, partly as lump sums and partly by way of instalments. It clearly failed to discharge the evidential onus that squarely fell upon it.       </p> <p> </p> <p>Disposition</p> <p>In the result, I am amply satisfied that there was nothing erroneous let alone irrational in the decision of the Board declining to grant the exemption sought by the appellant from having to pay the respondents the minimum retrenchment packages to which they were lawfully entitled. By the same token, there is no basis for impugning the judgement of the court <em>a quo</em> upholding the decision of the Board. In my view, none of the grounds of appeal mounted by the appellant is legally or factually sustainable.</p> <p> </p> <p>It is accordingly ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p> </p> <p>GARWE JA:                           I agree.</p> <p> </p> <p>                        MAKONI JA:                         I agree.</p> <p> </p> <p> </p> <p><em>Mlotshwa &amp; Company</em>, appellant’s legal practitioners</p> <p><em>Charamba &amp; Partners</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/2019/16/2019-zwsc-16.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33440">2019-zwsc-16.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/2019/16/2019-zwsc-16.pdf" type="application/pdf; length=116590">2019-zwsc-16.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/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-dispute">Labour dispute</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/retrenchment">Retrenchment</a></li><li class="vocabulary-links field-item odd"><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> Mon, 17 Jun 2019 07:12:17 +0000 admin 9324 at https://old.zimlii.org Mubvumbi v City of Harare (SC 64/18, Civil Appeal No. SC 1079/17) [2018] ZWSC 64 (22 October 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/64 <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>   (57)      </strong></p> <p> </p> <p><strong>MISHECK     MUBVUMBI  </strong></p> <p><strong>v   </strong></p> <p><strong>CITY     OF     HARARE</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, HLATSHWAYO JA &amp; PATEL JA</strong></p> <p><strong>HARARE MAY 29, 2018 &amp; 22 OCTOBER 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>R Mabwe</em> and <em>C Mafongoya,</em> for Appellant</p> <p><em>L Uriri,</em> for Respondent.</p> <p> </p> <p> </p> <p><strong>MAKARAU JA:</strong>            This is an appeal against the entire judgment of the Labour Court handed down on 13 November 2015. In that judgment, the court <em>a quo</em> dismissed an application for review, brought by the appellant against the decision by the respondent summarily retiring him from employment at age 60.</p> <p> </p> <p>Aggrieved by the decision, the appellant raised 6 grounds of appeal. These grounds of appeal raise three main issues as follows:</p> <ol> <li>Whether the appellant’s retirement age from employment was 60 or was 65 years;</li> <li>Whether or not the summary retirement of the appellant at 60 years was in essence a retrenchment; and</li> <li>Whether the respondent discriminated against the appellant in retiring him at 60 years when other employees were allowed to retire beyond that age.</li> </ol> <p> </p> <p><em>THE FACTS</em></p> <p>The facts giving rise to this dispute are largely common cause. I set them out hereunder.</p> <p> </p> <p>The appellant was employed by the respondent in 1981 as a Junior Treasury Officer.  It was a specific term of his contract of employment that his conditions of service would be governed by the provisions of the Industrial Agreement Salisbury Municipal Undertaking: General Conditions of Service Agreement contained in SI 147 of 1981. That statutory instrument provided in s 19 thereof, that the normal age of retirement of an employee would be 65 years.</p> <p> </p> <p>Statutory Instrument 147 of 1981 was repealed and replaced by various subsequent statutory instruments. These subsequent instruments were all collective bargaining agreements between the respondent and its employees providing for one or more aspects of conditions of service.</p> <p> </p> <p>In particular and of relevance to this appeal, SI 135 of 2012 reduced the normal retirement age for the respondent’s employees from 65 to 60 years.  </p> <p> </p> <p>In addition to the various collective bargaining agreements governing their conditions of service, the parties also contributed to the Local Authorities Pension Fund which had its own regulations.  These regulations provided for various ages of retirement from the fund by contributors, ranging from 55 to 65 years, and effectively mirrored the retirement ages provided for in SI 135 of 2012.</p> <p> </p> <p>It is not in dispute that the appellant was a member and contributed to this pension fund.</p> <p> </p> <p>On 18 March 2014, the respondent wrote to the appellant, advising him that he had reached normal retirement age and was being retired with immediate effect. The appellant approached the court <em>a quo </em>on review, contending that the actions of the respondent were unlawful and that he had a legitimate expectation to be retired at 65. The application was opposed with the respondent arguing that the appellant had attained the normal retirement age in line with the provisions of the governing collective bargaining agreement in force (i.e. SI 135/2012) and the regulations of the Pension Fund.</p> <p> </p> <p><em>THE ISSUE</em></p> <p>The issue between the parties before the court <em>a quo</em> was therefore a crisp one. It was whether or not the decision by the respondent to retire the appellant at age 60 as fixed by the collective bargaining agreement and the pension fund was lawful.</p> <p> </p> <p><em>THE DECISION OF THE COURT A QUO</em></p> <p>In holding that the decision by the respondent to retire the appellant at 60 was lawful, the court<em> a quo</em> found that whereas there had been many changes to the various collective bargaining agreements governing the conditions of service of the Harare City Undertaking, the provisions of the pension regulations had remained constant and these are what the respondent resorted to in summarily retiring the appellant. The court <em>a quo</em> then proceeded to find that because the appellant had not “told” the court that he was not a contributor to the pension fund, his retirement was governed by the scheme.</p> <p> </p> <p>Was the appellant’s age of retirement from employment fixed by the pension fund regulations? I think not.</p> <p> </p> <p><em>THE LAW</em></p> <p>The legal position presents itself clearly to me that the regulations of any pension fund do not fix the age at which the employee will retire from employment unless, expressly or impliedly, the employer and the employee agree that this be so.</p> <p> </p> <p>The setting up and administration of pension funds in this jurisdiction is governed by the provisions of the Pensions and Provident Funds Act [<em>Chapter 24.09</em>]. The Act provides for pension and provident funds to make their own rules or regulations.</p> <p> </p> <p>It is trite that the rules and/or regulations of a pension fund, provided for in s 7 of the Act, invariably fix the age at which contributors retire from making contributions to the fund. The Local Authorities Pension Fund, the fund in issue in this appeal, did. This age is also referred to as the retirement age. The Act however clearly provides that such an age may be attained with or without the termination of employment.</p> <p> </p> <p>I therefore read the Act in this regard as providing that one may be regarded as having retired for the purposes of the Act and therefore eligible to receive a pension, without necessarily having retired from employment. In other words, retiring from the pension fund does not always mark an employee’s retirement from employment. The two retirements can occur on different dates. Thus, in my view, one may clearly and lawfully attain retirement age for the purposes of the Act whilst still in employment. Whilst my understanding of the law in this regard is not directly relevant to the facts of this appeal, in my view, it underscores the clear legal position that the retirement age fixed by the pension scheme is not, in the absence of consent by both parties to that effect, necessarily the same age at which one must retire from employment.</p> <p> </p> <p>Where, therefore, the employer intends to apply the retirement age that is fixed by the pension fund for the purposes of retiring employees from employment, it must import this age, with the consent of the employees, into the conditions of service.</p> <p> </p> <p><em>In casu,</em> the respondent, perchance being alive to this legal requirement, aligned the retirement age of the rest of its employees to the age fixed by the pension fund by way of SI 135 of 2012.</p> <p> </p> <p>It is not in dispute that SI 135/12 is inapplicable to the appellant by reason of his position. The statutory instrument applies to all employees in grades 16 to 5. It therefore expressly excludes persons employed in grades 1 to 4. The appellant is employed in a grade 2 position.</p> <p> </p> <p>The court <em>a quo</em> correctly found that the statutory instrument does not apply to the appellant. It however erroneously proceeded to find that the retirement age as fixed by the pension scheme regulations then becomes applicable. As discussed above, the regulations of the pension fund, not being an agreement between the employer and the employee, cannot fix the employee’s retirement age from employment.</p> <p> </p> <p>It is therefore my finding that mere membership of a pension fund, without other evidence tending to show that the parties agreed to import the retirement age as fixed by the pension scheme into the contract of employment, is not adequate basis for holding that the age of retirement as fixed by the pension fund is the same as the age of retirement from employment.</p> <p> </p> <p>With respect, it does not appear that the court <em>a quo</em> was alive to the need to first find that there was agreement between the parties that the age of retirement as fixed by the pension fund would be the age of retirement from employment. The court appears to have proceeded on the basis that retirement from the pension fund is synonymous with retirement from employment.  Thus, the court <em>a quo</em> did not search for any evidence tending to show that there was such an agreement between the parties.</p> <p> </p> <p> There is no such evidence on record.</p> <p> </p> <p>In disposing of the matter as it did, the court purported to rely on the decision of this Court in the matter of <em>Athol Evans Hospital Home v Monica Maruta</em> SC 66/05. Such reliance is with respect an incorrect reading of the <em>ratio decidendi</em> in the case.</p> <p> </p> <p> In the <em>Athol Evans Hospital</em> case, the respondent and the appellant were contributors to a pension scheme, (the Southampton Scheme), that set the retirement age at 60 years. The retirement age set by the pension scheme was consistent with the National Security Social Authority Scheme (“NSSA Scheme”) retirement age at the time.  The NSSA Scheme retirement was subsequently amended to 65 years. When retired at 60, the respondent challenged her retirement at that age, alleging that she should have been given an option to elect to retire at 65 in terms of the NSSA Scheme.</p> <p> </p> <p>Quite clearly, the respondent in the <em>Athol Evans</em> <em>Hospital</em> case did not challenge the applicability of the retirement age as fixed by the Southampton Scheme to her. She was of the view that she should have been given an opportunity to agree to be bound by the NSSA scheme instead.</p> <p> </p> <p>It was in rejecting that contention that this Court held that the respondent had made her election to join the Southampton Scheme in terms of which she was retired as the two schemes were in operation at the time she made the election. In the passage cited by the court <em>a quo</em> in its judgment, this Court held that by joining the Southampton Scheme, the respondent accepted to retire at the age of 60.</p> <p> </p> <p>The <em>Athol Evans Hospital</em> case is clearly not authority for the proposition that the regulations of a pension scheme, in the absence of express or implied agreement of the parties to that effect, will fix the retirement age from employment. The case was simply decided on the employee’s election to be bound by one and not the other of the two schemes that operated at the same time. I read the judgment as taking it as understood that both parties had agreed to the retirement age fixed by the Southampton Scheme. The changes introduced by the NSSA Scheme later were of no moment as the parties had not agreed to be bound by those later changes expressly or impliedly.</p> <p> </p> <p>Having found that the respondent failed to show that it had acted lawfully in retiring the appellant at 60, the court <em>a quo</em> erred in dismissing the appellant’s review application.</p> <p> </p> <p>The first issue raised by the appellant’s grounds of appeal must be answered in favour of the appellant. There is no basis upon which the respondent retired the appellant at 60. It was neither a specific term of the contract of employment between the parties nor a provision of any collective bargaining agreement that applied to him.</p> <p> </p> <p>The first ground of appeal is with merit and must be upheld. In view of that finding, it becomes unnecessary to deal with the other grounds of appeal giving rise to the second and third issues.</p> <p> </p> <p>Regarding costs, no basis exists to depart from the general rule that they follow the cause.</p> <p> </p> <p>In the result, I make the following order:</p> <ol> <li>The appeal is allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is hereby set aside and substituted with the following:</li> </ol> <p>“a) The application for review is granted with costs.</p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p><strong>HLATSHWAYO JA:</strong>           I agree</p> <p> </p> <p><strong>PATEL JA:</strong>                           I agree</p> <p> </p> <p><em>J Mambara &amp; Partners</em>, appellant’s legal practitioners</p> <p><em>Chihambakwe Mutizwa &amp; Partners</em>, respondent’s legal practitioners.</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/supreme-court-zimbabwe/2018/64/2018-zwsc-64.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33174">2018-zwsc-64.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/2018/64/2018-zwsc-64.pdf" type="application/pdf; length=131776">2018-zwsc-64.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/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-employment">Conditions of employment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/retrenchment">Retrenchment</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/1976/20">Pension and Providend Fund Act [Chapter 24:09]</a></div></div></div> Mon, 19 Nov 2018 09:27:31 +0000 admin 9156 at https://old.zimlii.org Murombedzi v SMM Holdings (Pvt) Ltd (HMA 30-18, Case no. HC CIV A'2/17) [2018] ZWMSVHC 30 (13 June 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/30 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHIDO MUROMBEDZI                                                                 </p> <p>versus</p> <p>SMM HOLDINGS [PVT] LTD</p> <p>                                                           </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J &amp; MAFUSIRE J</p> <p>MASVINGO, 30 May 2018 &amp; 13 June 2018</p> <p>                                                                </p> <p> </p> <p><strong>Civil appeal</strong></p> <p> </p> <p>Mr <em>C. Ndlovu</em>, for the appellant</p> <p>Adv<em>. L. Mazonde</em>, for the respondent</p> <p> </p> <p> </p> <p>MAFUSIRE J:</p> <p>[1]        This was an appeal against an order of eviction granted by the court <em>a quo</em> in favour of the respondent against the appellant. The order of eviction was in relation to certain premises, a dwelling house, situate Shabani Mine, Zvishavane, owned by the respondent but which had at all relevant times been allocated to, and was occupied by,  the appellant  by virtue of his employment with the respondent.</p> <p> </p> <p>[2]        In the court <em>a quo</em>, the grounds of claim, as pleaded by the respondent by way of a court application, were these:</p> <p> </p> <ul> <li>that the appellant was once employed by the respondent as Underground Manager;</li> </ul> <p> </p> <ul> <li>that by virtue of his contract of employment he was entitled to a company house;</li> </ul> <p> </p> <ul> <li>that in accordance with the contract of employment he had been allocated the premises in question;</li> </ul> <p> </p> <ul> <li>that his entitlement to, and occupation of, those premises, or any others that he might have been allocated during the currency of his employment, would cease upon the termination of his employment with the respondent;</li> </ul> <p> </p> <ul> <li>that the appellant had left the respondent’s employment on 31 January 2012 [i.e. more than 4 years ago];</li> </ul> <p> </p> <ul> <li>that on various occasions the respondent had requested the appellant to surrender the premises back to it but that he had not done so;</li> </ul> <p> </p> <ul> <li>that despite a formal letter of demand by the respondent to the appellant to vacate the premises, he had remained in occupation.</li> </ul> <p> </p> <p>[3]        The appellant opposed the application. First, he took a point <em>in limine</em> that this was a labour dispute over which, by virtue of s 89[6] of the Labour Act, <em>Cap 28:01</em>, the court <em>a quo</em> had no jurisdiction. He then pleaded to the merits and denied that he had left the respondent’s employ or that his contract of employment as Underground Manager with the respondent had been terminated, but that he had merely been seconded from Shabani Mine to the Zimbabwe Development Corporation [“<strong><em>ZMDC</em></strong>”] which in turn had seconded him to Kusena Zim Diamonds.</p> <p> </p> <p>[4]        In brief, the appellant’s main grounds of defence in the court <em>a quo</em> were:</p> <p> </p> <ul> <li>that at all relevant times the respondent was a company under a reconstruction order in terms of the Reconstruction of State-Indebtedness Insolvent Companies Act, <em>Cap 24:27</em>;</li> </ul> <p> </p> <ul> <li>that when it was placed under a reconstruction order the ZMDC “<strong><em>took over</em></strong>” the respondent;</li> </ul> <p> </p> <ul> <li>that on 8 November 2011 the appellant was seconded to Kusena Zim Diamonds;</li> </ul> <p> </p> <ul> <li>that secondment simply means a period when an employee is sent by his employer to work for a different organisation or a different part of the same organisation;</li> </ul> <p> </p> <ul> <li>that at Kusena Zim Diamonds the appellant had been staying in a one-roomed cottage at the Mine Compound;</li> </ul> <p> </p> <ul> <li>that on 22 April 2015 the appellant had further been transferred to Jena Mines, a subsidiary of the ZMDC;</li> </ul> <p> </p> <ul> <li>that at Jena Mines the appellant was staying in a guest lodge;</li> </ul> <p> </p> <ul> <li>that as such, the appellant was still employed by the respondent and that until such time that his contract of employment with the respondent was terminated, his entitlement to occupy the premises in question remained.</li> </ul> <p> </p> <p>[5]        The respondent produced several documents to back up his claims. One such was “Annexure M”, the letter dated 8 November 2011 written to him by the ZMDC. It advised him of his secondment to Kusena Zim Diamonds upon the terms and conditions spelt out therein.</p> <p> </p> <p>[6]        On the duration of the secondment, Annexure M said this would depend on the exigencies of the work at both Kusena Zim Diamonds and some other mines named therein. On accommodation, the letter said the company would provide him with accommodation at the mine, subject to availability. On termination of employment, the letter said subject to the right of dismissal, notice of termination of employment would be three calendar months by either party. It stressed that the termination of that contract as a disciplinary measure would in no way give him the option to return to the respondent.</p> <p> </p> <p>[7]        The other document produced by the appellant, “Annexure O”, was the letter to him by the ZMDC on 22 April 2015, advising of his further transfer to Jena Mines until further notice.</p> <p> </p> <p>[8]        On the conditions of service, Annexure O said those obtaining at Jena Mines would apply, and that they included salary and benefits. However, the letter further said that this did not change the appellant’s original secondment status from Shabani Mine.</p> <p> </p> <p>[9]        In an answering affidavit, the respondent, among other things, pointed out that Annexure M was ZMDC’s letter to him, not a letter from the respondent; that the letter was the appellant’s contract of employment with the ZMDC; that this showed that his contract of employment with the respondent had since been terminated as one could not report to two masters.  </p> <p> </p> <p>[10]      In granting the order of eviction, the court <em>a quo</em> found, or reasoned, as follows:</p> <p> </p> <ul> <li>that the issue before it was not of termination of employment but of eviction, and that as such, the court was empowered to entertain the application;</li> </ul> <p> </p> <ul> <li>that the appellant [then respondent in the court <em>a quo</em>] was on secondment to the ZMDC;</li> </ul> <p> </p> <ul> <li>that it had been clearly stated that the mine would provide accommodation and allocate the appellant with new residences at the new stations;</li> </ul> <p> </p> <ul> <li>that therefore there was no valid reason why the appellant should have two houses from different mines at the same time, in the same way that he did not receive two salaries at the same time.</li> </ul> <p> </p> <ul> <li>that upon transfer one could not hold onto the property of the previous station.</li> </ul> <p> </p> <p> </p> <p>[11]      Before us, the parties have largely repeated the same arguments as in the court below. Mr <em>Ndlovu</em>, for the appellant, has insisted that the ZMDC had “taken over” the operations of the respondent after it was placed under reconstruction and that none of the employees, the appellant included, had any say over their fate, except that the take-over should not prejudice them. He said the premises in question remained the appellant’s main accommodation which was tied to his contract of employment and that all the other residences that he might have been allocated at his new stations on secondment remained temporary accommodation.</p> <p> </p> <p>[12]      Mr <em>Mazonde</em>, for the respondent, denied that the ZMDC had taken over the respondent. He denied that there could have been any such thing as “taking over” of a company, by another company. He said the respondent was a company under a reconstruction order and which was under the control and direction of an administrator. Mr <em>Mazonde</em> insisted that the ZMDC was the appellant’s new employers and that it was the ZMDC, not the respondent, which was seconding the appellant every time it saw fit.</p> <p> </p> <p>[13]      There were some grey areas on some aspects of the matter which none of the parties could properly shed light. For example, what did it mean that the ZMDC had “taken over” the operations of the respondent? What were the terms and conditions of that take over, particularly with regards to the respondent’s labour force and its assets such as housing?</p> <p> </p> <p>[14]      But undoubtedly, there had been some kind of transfer or relationship between the respondent, under reconstruction, and the ZMDC. In the case of <em>Badza v SMM Holdings [Pvt] Ltd [Under Reconstruction] t/a SMM Properties</em> HMA 20-17, it was common cause that the ZMDC, a parastatal, had become the respondent’s sole or major shareholder after it had poured a substantial sum of money to resuscitate the respondent’s operations. Surely, for such sums of money to pass hands like that some sort of agreement would have been signed to govern the parties’ new relations. These agreements might, or might not shed light on, among things, the fate of the respondent’s employees. None of the parties made reference to any such documents, let alone produce them.</p> <p> </p> <p>[15]      The other grey area was in some of the expressions used in certain documents. For example, Annexure O, namely ZMDC’s second letter to the appellant on 22 April 2015 further transferring him from Kusena Zim Diamonds to Jena Mines said, among other things, that the conditions of service obtaining at Jena Mines and which would now govern the appellant regarding his salary and benefits, would not change the appellant’s original status from Shabani Mine. This would seem to support the appellant’s argument that, contrary to the respondent’s claim, his original contract of employment with it had never been terminated and that he was merely on secondment to the ZMDC.</p> <p> </p> <p>[16]      It is true an employee who is on secondment to another branch of the employer or enterprise is transferred on a temporary basis. He remains employed by the seconding office or employer: see <em>Shumba v Commercial Bank of Zimbabwe</em> HH 100-06 and <em>Dairibord Zimbabwe Limited v Muyambi</em>. In <em>Dairibord’s</em> case, Dairibord, the employer, had seconded Muyambi, the employee, from its main operations in Zimbabwe to one of its subsidiaries in Malawi, on a contract of secondment. Disgruntled by alleged non-performance, in Malawi, Dairibord terminated the contract of secondment. The Supreme Court held that the termination of Muyambi’s contract of secondment had not terminated his original contract of employment in Zimbabwe.</p> <p>[17]      Further ambiguity in the present case is brought by Annexure M’s clause on termination of employment. It said:</p> <p> </p> <p>“Subject to the right of dismissal, notice of termination of employment shall be three calendar months notice from either party in writing. Please be advised that termination of this contract as a disciplinary measure will in no way give you the option to return to SMM.”</p> <p> </p> <p> </p> <p>[18]      That clause would seem to imply that only the termination of the secondment contract <strong><em>on disciplinary grounds</em></strong> would disentitle him to return to the respondent on his original contract, suggesting that any other reason for termination would not present that difficulty for him.</p> <p> </p> <p>[19]      However, having looked at this matter holistically, we have found no misdirection by the court <em>a quo</em> in refusing to be entangled in issues of employment contracts, and in confining itself to the narrow issue of eviction.</p> <p> </p> <p>[20]      There is no doubt that the premises in question belong to the respondent. We did not hear Mr <em>Ndlovu</em> arguing that the form of the alleged “take over” of the respondent by the ZMDC entailed assuming ownership of the respondent’s houses by the ZMDC. In the <em>Badza</em> case above, it was pointed out that one of the incidents of ownership of a thing is the owner’s entitlement to its exclusive possession. The law presumes possession of the thing as being an inherent nature of ownership. Flowing from this, no other person may withhold possession from the owner unless they are vested with some right that is enforceable against the owner: see <strong>Silberberg and Schoeman</strong>’s <em>The Law of Property</em>, 5th ed., at p 243. Otherwise an owner deprived of possession against his will, can vindicate his property wherever found, and from whomsoever holding it: see <em>Chetty v Naidoo</em>.</p> <p> </p> <p>[21]      In the present case, the appellant’s original right to the occupation of the respondent’s premises in question stemmed from his original contract of employment with it. It was not in dispute that such original right would be extinguished by the termination of that original contract of employment. The respondent said the contract had terminated. The appellant said it had not. However, the documents produced by the appellant himself suggest that it had. Annexure M was the contract of secondment by the ZMDC with the appellant in respect of the ZMDC’s other operations. It was not the original contract of employment with the respondent. So was Annexure O. By the time of those documents the respondent had long since gone out of the picture.</p> <p> </p> <p>[22]      The appellant’s argument is self-defeating. If ZMDC’s taking over of the respondent entailed its taking over the of respondent’s houses, then if he was being seconded and being given new accommodation at his new work stations, he would not be entitled to retain the original premises. As the court <em>a quo</em> noted, he would not be entitled to two houses from the same employer at the same time, in the same way that he would not be entitled to two or more salaries and benefits from the same employer at the same time. If it was <em>the quality</em> of the accommodation at the new work stations that the appellant was complaining about, then this would be a different case altogether. </p> <p> </p> <p>[23]      But we consider the correct position to be that the appellant’s original contract of employment with the respondent, which had carried with it an entitlement to accommodation in the premises in question, had long since terminated, and that, as the generality of the documentation showed, he was now on a new and separate contract of employment with the ZMDC.</p> <p> </p> <p>[24]      In the premises, we find the appeal to be unmeritorious. It is hereby dismissed with costs.</p> <p> </p> <p>13 June 2018</p> <p>Hon Mawadze J concurred: _______Signed on Original_____________</p> <p><em>Ndlovu &amp; Hwacha</em>, legal practitioners for the appellants</p> <p><em>Chuma, Gurajena &amp; Partners</em>, legal practitioners for the respondent</p> <p>2002 [1] ZLR 448 [S]</p> <p>1974 [3] SA 13 [A], at p 20B.</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/masvingo-high-court/2018/30/2018-zwmsvhc-30.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=59717">2018-zwmsvhc-30.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/masvingo-high-court/2018/30/2018-zwmsvhc-30.pdf" type="application/pdf; length=217856">2018-zwmsvhc-30.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/retrenchment">Retrenchment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/salaries-and-wages">Salaries and wages</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 class="field-item odd"><a href="/zw/legislation/act/2004/27">Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27]</a></div></div></div> Mon, 06 Aug 2018 09:26:40 +0000 admin 9081 at https://old.zimlii.org Zesa Holdings (Pvt) Limited v Utah (Judgment No. SC 32/18, Civil Appeal No. SC 807/16) [2018] ZWSC 32 (12 June 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/32 <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>REPORTABLE</strong><strong>     (27)</strong></p> <p> </p> <p><strong>ZESA     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>ITAYI     UTAH</strong></p> <p>   </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA; GUVAVA JA; MAVANGIRA JA</strong></p> <p><strong>HARARE, SEPTEMBER 22, 2017 AND JUNE 12, 2018</strong></p> <p> </p> <p> </p> <p><em>S. M. Hashiti</em>, for the appellant</p> <p><em>M. Gwisai, </em>with<em> C. Mahlangu</em>, for the respondent</p> <p> </p> <p><strong>GWAUNZA JA</strong>:             This is an appeal against the whole judgment of the Labour Court handed down on 20 February 2015.</p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>The respondent was employed by the appellant as an Apprentice Distribution Electrician on 17 September 1984. He rose through the ranks until he was promoted to the position of Technical Services Director in terms of a contract dated 27 August 2004.  In July 2007 the appellant’s Managing Director wrote to the respondent advising him of a restructuring exercise being underway, and that his post had to be abolished.  He also notified him of an intention to work out his retrenchment package. On 30 July 2007 the Group Company Secretary of the appellant wrote a letter to the respondent in which he outlined the appellant’s proposal for a retrenchment package.</p> <p>The respondent, through his legal practitioners, indicated that he was not agreeable to the proposals concerning the date of termination of the employment relationship, the housing loan, performance bonus, personal loan, foreign travel, purchase of a replacement motor vehicle and furniture.</p> <p> </p> <p>After some correspondence, the parties failed to agree on the appropriate package and eventually the matter was referred to arbitration before Arbitrator Bvumbe in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>]. His terms of reference were the following:</p> <ol> <li>“Whether or not ZESA Holding Private Limited was in breach of the terms and conditions of the contract of employment in respect of Itayi Utah who is employed by the applicant as Technical Services Director. Employment contract dated 7 August 2004 in respect of the non-fulfilment of the following benefits:</li> </ol> <ul> <li>Housing loan</li> <li>Personal loan</li> <li>Performance bonus</li> <li>Replacement Motor Vehicle</li> </ul> <ol> <li>Whether or not the respondent Itayi Utah is entitled to:</li> </ol> <ul> <li>Foreign Travel</li> <li>Office Furniture</li> </ul> <p>         Benefits as part of his retrenchment package.”</p> <p> </p> <p> </p> <p> </p> <p>Before the Arbitrator, the parties had agreed that the effective date of the ‘retrenchment’ would be the date of the arbitral award (and this agreement was captured in the arbitral award by Arbitrator Bvumbe). In addition, the arbitrator held that the respondent was not entitled to foreign travel and office furniture as well as the housing loan which he claimed.  In respect of a motor vehicle benefit that had been withdrawn, the arbitrator held that the respondent should be paid damages and he also ordered three months’ worth of salary as compensation for the personal loan.</p> <p> </p> <p>On 24 June 2009, the appellant calculated the severance package which the respondent signed “without prejudice”.  The money was subsequently deposited into his account. In an apparent <em>volte face</em>, the respondent later contended that the package had not been properly calculated and that his date of termination should change from 31 March 2009 to the date he would be paid what he contended he was entitled to. He also at this stage questioned the lawfulness of the ‘retrenchment’ process even though it had resulted in him signing for and accepting, a package in terms of Arbitrator Bvumbe’s award.</p> <p> </p> <p>This new challenge to a process that had been concluded between the parties was referred to a different Arbitrator, Mr Manase. His terms of reference encapsulated the respondent’s challenge to the earlier ‘retrenchment’ process concluded through Arbitrator Bvumbe’s award. They read as follows:</p> <p>“(i) Whether or not respondent`s purported retrenchment of applicant and the process that followed was lawful, and</p> <p>(ii)  Whether or not applicant is still an employee of respondent in terms of the law.”</p> <p> </p> <p> </p> <p>Arbitrator Manase held that the purported retrenchment of the respondent was null and void as it had not been approved by the Minister and therefore the respondent was still an employee of the appellant. He ordered that he be reinstated to his former employment with the appellant.</p> <p> </p> <p>Aggrieved by this decision, the appellant appealed to the Labour Court on the grounds that the Arbitrator erred in not finding that acceptance of the retrenchment package even on a purported “without prejudice” basis destroyed any future claims in that respect, by the respondent. The appellant also averred that the Arbitrator erred grossly at law in holding himself to have jurisdiction to determine the conclusiveness or otherwise of the award by Arbitrator Bvumbe. The Labour Court dismissed the appeal. Having unsuccessfully sought leave to appeal to this Court, in the Labour Court, leave was sought and granted by this Court on 14 December 2016. This Court is now seized with the appeal.</p> <p> </p> <p>It has been noted that in the Labour Court the appellant unsuccessfully argued that Arbitrator Manase lacked the jurisdiction to determine the lawfulness or otherwise of the award by Arbitrator Bvumbe. In other words, Arbitrator Manase, who at law enjoyed parallel jurisdiction with Arbitrator Bvumbe, could not competently interfere with the latter’s award.  The appellant, on appeal to this Court, did not directly allude to the matter in its grounds of appeal. In my view however, the question of Arbitrator Manase’s jurisdiction to hear the matter is an important question of law whose determination may effectively dispose of the appeal. In any case it is also important to consider the effect his award had on Arbitrator Bvumbe’s award.  It was also helpful to the court that detailed submissions on the matter were made by both parties in their heads of argument and in argument during the hearing of this appeal.</p> <p> </p> <p>Relying on the case of <em>Williams &amp; Anor v Msipha NO &amp; Ors</em> SC-22-10, the appellant correctly argued in its heads of argument that an appeal court:</p> <p>“must be able to intervene not only against the direct dictates of a judgment of the lower court, but also against its effect”</p> <p> </p> <p>However, before addressing the issue of Arbitrator Manase’s jurisdiction to hear the matter, it is my view that the nature and effect of the process of ‘retrenchment’ that the parties negotiated and acted upon, must be determined first.</p> <p> </p> <p>The appeal therefore raises two issues for determination:</p> <ol> <li>Did the parties negotiate a retrenchment package in the manner dictated by the applicable law, and</li> <li>Did Arbitrator Manase have jurisdiction to determine the lawfulness or otherwise, of the process that culminated in the package of benefits being paid to the respondent?</li> </ol> <p> </p> <p>In his heads of argument, the respondent correctly outlines the retrenchment procedure then applicable, as follows:</p> <p>“Thus, in case of agreement and forwarding of the agreement to the Retrenchment Board, the effective date of retrenchment would more or less coincide with the date of the final award ….  However, if there was no agreement within one month, the provisions of s 3(8) of S.I. 186/2003 would kick in, with the dispute to be resolved in terms of s 12 (C) of the Act. That is assessment of the matter by the Retrenchment Board and its recommendations to the Minister and finally the approval of the retrenchment package by the Minister, subject to any modifications she or he may make in terms of s 12 (C) (9) of the Act. Until then, the employees remain employees of the employer and entitled to their salaries and benefits”</p> <p> </p> <p> </p> <p>It is not in dispute that this process is not what the parties <em>in casu</em> engaged in. As indicated above the genesis of the dispute was a letter written to the respondent in June 2007, informing him of a restructuring exercise within the appellant, and the abolishment of his post. Thereafter the parties engaged in a process that they termed ‘retrenchment’ and in terms of which a package of benefits payable to the respondent, was negotiated. When a dispute arose as to the total package due to the respondent, the parties by agreement, referred the matter to Arbitrator Bvumbe, whose terms of reference have been set out above. According to the respondent’s own outline of the correct process to follow in the event of a retrenchment, this was the stage at which the parties would have referred the matter to the Retrenchment Board. They chose not to do so.</p> <p> </p> <p>Arbitrator Bvumbe prefixed his award with the following comment:</p> <p>“On this occasion (5 April 2008 the date of referral of the matter to him) the parties endorsed the referral to me as a single arbitrator. They also agreed on the terms of reference which were to be considered for the finalisation of the dispute between the parties, which were ….</p> <p>The parties concurred that the effective date of retrenchment would be the date of the arbitration award.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>This statement by the arbitrator significantly refers to ‘finalisation of the dispute’ between the parties. This suggests clearly that neither side contemplated engaging in the retrenchment process alluded to above. Their intention was to have the dispute relating to the benefits on which agreement had not been reached, finally determined by Arbitrator Bvumbe.</p> <p>     </p> <p>That this was the parties’ clear intention is borne out by their subsequent conduct. Firstly, following Arbitrator Bvumbe’s award, dated 24 October, 2008, the appellant on 30 March 2009 addressed a letter to the respondent’s legal practitioners, to the following effect:</p> <p>“Re: Retrenchment Package</p> <p> The above matter refers:</p> <p>Please find attached to this letter the Retrenchment offer for your client, Itayi for his signature. May we have your        response as a matter of urgency so that we put this matter to rest. “(<em>my emphasis</em>)</p> <p> </p> <p>This letter, as is evident, reinforced the intention to have the dispute resolved in terms of the arbitral award of Mr Bvumbe.</p> <p> </p> <p>Secondly, the respondent accepted the offer on 24 June 2009, in a letter written on his behalf by his legal practitioners. The letter in relevant part read as follows:</p> <p>“We write to advise that our client has since accepted the    retrenchment package by signing the letter. We attach        herewith a signed copy of your offer from our client for immediate processing, without prejudice …. Payment should be processed and deposited in our client’s     account by 30 June 2009, failure which(<em>sic</em>) interest and            damages shall be raised against Zesa Holdings in terms of the law.  We are also instructed to remind you to immediately communicate our client’s termination of employment on 31 March 2009 to his pension managers in order to facilitate immediate pension payments from two pension funds…” (<em>my emphasis</em>)</p> <p> </p> <p>The content and tone of this acceptance letter by the respondent in my view admits of no doubt as to the intention, by him as much as by the appellant, to bring finality to the dispute in this manner. This is regardless of some indications in the letter that the respondent had signed the ‘retrenchment’ package on a ‘without prejudice basis’. It is also significant that the only recourse that the respondent at that point contemplated in the event of the appellant’s failure to pay the package in question, was to sue the latter for ‘interest and damages’.  Sight must also not be lost of the fact that the respondent accepted the termination of his employment and expected immediate notification thereof to his two Pension Funds.</p> <p> </p> <p>Finally, it is not in dispute that the appellant thereafter paid, and the respondent received, the package that the parties had signed for.</p> <p> </p> <p>Against this background I have no doubt in my mind that the process engaged in by the parties, as outlined above, clearly speaks to:</p> <ul> <li>Negotiations for a package to be paid to the respondent following the abolition of his employment post with the appellant;</li> <li>Agreed referral for final resolution of the dispute, to Arbitrator Bvumbe</li> <li>An offer made by the appellant to the respondent, of a package worked out in terms of the arbitral award;</li> <li>Acceptance in clear terms of the offer, by the respondent; and</li> <li>Implementation of the agreement through release of the relevant benefits, into the respondent’s bank account.</li> </ul> <p> </p> <p> </p> <p>The issues listed above bear all the hallmarks of a contract negotiated, signed and perfected. Despite the parties’ loose usage of the term ‘retrenchment’ package, I am satisfied that the parties negotiated for and signed, an agreement for the termination of the respondent’s employment with the appellant. The agreement was entered into between two consenting parties and was signed freely and voluntarily. It was a contract like any other contract and can, therefore not be said to be unlawful, as the respondent now seeks to argue.</p> <p> </p> <p>Accordingly, I find that the parties neither contemplated nor engaged in a retrenchment process as outlined in the relevant law.</p> <p> </p> <p>This brings me to the second issue to be determined in this matter:</p> <p>“Did Arbitrator Manase have jurisdiction to determine the lawfulness or otherwise, of the process that culminated in the package of benefits being paid to the respondent?”</p> <p> </p> <p> </p> <p>Neither the parties nor Arbitrator Manase dispute that no appeal was filed against Arbitrator Bvumbe’s award. This was the award on the basis of which the package terminating the employment of the respondent was worked out, paid and accepted. The award is therefore extant, and has been fully implemented. In para (c) of his award, Arbitrator Manase correctly stated as follows:</p> <p>“Given the fact that Arbitrator Bvume’s award was neither challenged and set aside, it remains binding… I as an Arbitrator, cannot properly set aside a subsisting arbitral award by a brother arbitrator. The award however, was not conclusive and there were outstanding items for resolution and clarification.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>He clearly was aware of the legal position regarding his competency or lack thereof, to interfere with a fellow arbitrator`s decision. Despite this, he seemed to have entertained the notion that he could vary, amend or supplement the latter’s award. This is evidenced by the latter part of the statement cited above. This is clearly not permissible at law, as illustrated by the authorities cited below.</p> <p> </p> <p>Section 98(9) of the Labour Act [<em>Chapter 28:01</em>] provides that:</p> <p>“(9) In hearing and determining any dispute an arbitrator     shall have the same powers as the Labour Court.”</p> <p> </p> <p>Thus when an arbitrator makes an award, his position is akin to that of a court of law. A court is defined to mean all its judges sitting alone or with other judges. This is because they have the same powers and exercise parallel jurisdiction. Arbitrators are no different in this respect. Accordingly, the <em>res judicata </em>and<em> functus officio</em> legal principles will apply should the matter be brought before the same or a different judge, or in this case, arbitrator.</p> <p> </p> <p> The learned authors Herbstein &amp; Van Winsen “<em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em>” 5th Ed state that:</p> <p>“The general principle, now well established in our law, is   that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that the court thereupon becomes <em>functus officio</em>: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter ceases. The other equally important consideration is             the public interest in bringing litigation to finality. The parties must be assured that once an order of court has been made, it is final and they can arrange their affairs in accordance with that order.”</p> <p> </p> <p> </p> <p> </p> <p>In the case of <em>Kassim v Kassim</em> 1989 (3) ZLR 234 (H) at           p 242 C-D the court held that:-</p> <p>“In general, the court will not recall, vary or add to its own judgment once it has made a final adjudication on the merits.   The principle is stated in <em>Firestone South Africa         (Pvt) Ltd v Genticuro Ag</em> 1977 (4) SA 298 (A) at 306, where TROLLIP JA stated:</p> <p>‘The general principle, now well established in our law, is   that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes <em>functus officio</em>: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.’”</p> <p> </p> <p> </p> <p>                        Furthermore, in <em>Unitrack (Pvt) Ltd v Telone (Pvt) Ltd</em>          SC 10/18 MAVANGIRA AJA (as she then was) held as follows:</p> <p>“It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or      legal authority to re-examine or revisit that decision. Once a decision is made, the term “<em>functus officio</em>” applies to the court or judicial officer concerned.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>In his award, Mr Manase sought to reinstate into his former employment, an employee (the respondent) who had freely and consciously signed an agreement to terminate such employment, and accepted the benefits agreed to between the parties. He thus purported to revive a moribund employment contract as well as reverse the import of Arbitrator Bvumbe’s determination on the benefits payable to the respondent in terms of the supposed retrenchment agreement signed by the parties. No evidence was tendered that the respondent had paid back the amounts that he received. Arbitrator Manase’s award, therefore would have resulted in the respondent being paid essentially the same benefits, twice.</p> <p> </p> <p>Since Arbitrator Manase was not sitting as an appeal court, it was clearly not open to him to do as he purported.</p> <p> </p> <p>More confounding, in my view, is the fact that the parties in this matter agreed to refer the dispute to Arbitrator Manase. This was notwithstanding the common understanding by all that an Arbitrator who enjoys parallel jurisdiction with any other arbitrator can at law, neither set aside nor interfere in any manner with the award of another arbitrator. They also did this in full knowledge of the fact that the first arbitral award was extant, and that the agreement based on it had been fully implemented by the parties to the dispute.</p> <p> </p> <p>The respondent attempts to differentiate between the two arbitral awards as follows:</p> <p>“…. The court <em>a quo</em> did not err because the two awards dealt with separate and distinct causes of action. The Manase award dealt with the lawfulness of the retrenchment while the Bvumbe award dealt with a dispute over claimed contractual benefits and benefits to be included in a retrenchment package….” (<em>my emphasis</em>)  </p> <p> </p> <p> </p> <p>There can be no doubt that the ‘retrenchment’ referred to in this submission is the process, based on Arbitrator Bvumbe’s award, that culminated in the signing of the termination of employment agreement by the parties. As already stated it is evident that the parties loosely used the term ‘retrenchment’ when in fact all they signed was an agreement terminating the respondent’s employment with the appellant. This is the process that Arbitrator Manase was to review and whose lawfulness or otherwise he was to determine.</p> <p>I have found that the process did not amount to a retrenchment. I must make the point that even if it had been a retrenchment process, Arbitrator Manase would still have lacked the jurisdiction to determine its lawfulness or otherwise. Following upon the arbitral award handed down by Arbitrator Bvumbe, the matter became <em>res judicata</em>. By virtue of the fact that both arbitrators were endowed with the same jurisdictional powers, Arbitrator Manase was accordingly <em>functus officio</em> in relation to the same dispute. The first arbitral award could only be reviewed or set aside by a court of higher jurisdiction. Because that did not happen, that award stands as the one that finally determined the dispute, leaving no basis for interference therewith, by the second Arbitrator, Mr Manase. His attempt to do so was therefore of no force or effect.</p> <p> </p> <p>I find in the result that the court <em>a quo</em> misdirected itself in upholding Mr Manase’s award. The appeal therefore has merit and ought to succeed.</p> <p> </p> <p>Having determined that the parties effectively signed and honoured an agreement to terminate the employment of the respondent with the appellant, and that this circumstance constituted a final resolution of the dispute between them, it becomes unnecessary to consider the alternative ground of appeal relating to whether or not the respondent repudiated the employment contract.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In the premises, it is ordered as follows:</p> <ol> <li>The appeal succeeds with costs</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol> <p>“(i)       The appeal succeeds with costs.</p> <ul> <li>The arbitral award by Arbitrator Manase dated July, 2013 be and is hereby set aside.”</li> </ul> <p> </p> <p> </p> <p> </p> <p><strong>GUVAVA JA:                       </strong>I agree</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA:</strong>               I agree</p> <p> </p> <p> </p> <p> </p> <p><em>Dube Manikai Hwacha, </em>Appellant`s legal practitioners</p> <p><em>Munyaradzi Gwisai and Partners, </em>Respondent`s legal practitioners</p> <p>See macDonald v Canada (AG) (1994) 1 SCR 311 at 329</p> <p>The letter erroneously states that the offer letter was received on 24 June, 2009, when the legal practitioners’ date stamp on the latter document clearly indicates it was received on 30th March 2009</p> <p>This would, in any case not have changed the character and effect of the agreement, for that is not capable of being concluded on a “without prejudice” basis .  See <em>Yakub Mahomed v John Arnold Bredenkamp HH 130/16</em> where it was held as follows;</p> <p>“I also find persuasive the submission made on behalf of the plaintiff that an agreement cannot be without prejudice or privileged, only the negotiations can…”</p> </div></div></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/2018/32/2018-zwsc-32.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=49117">2018-zwsc-32.docx</a></span></div><div class="field-item 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/2018/32/2018-zwsc-32.pdf" type="application/pdf; length=243600">2018-zwsc-32.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/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employer">Employer</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/retrenchment">Retrenchment</a></li><li class="vocabulary-links field-item odd"><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> Wed, 25 Jul 2018 09:39:09 +0000 admin 8995 at https://old.zimlii.org Reserve Bank of Zimbabwe v Mufudzi & 3 Others (SC 29/18, Civil Appeal No. 524/14) [2018] ZWSC 29 (26 June 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/29 <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>REPORTABLE</strong><strong>        (28)</strong></p> <p> </p> <p> </p> <p><strong>RESERVE     BANK     OF     ZIMBABWE</strong></p> <p><strong>v</strong></p> <ol> <li><strong>T. LLOYDMUFUDZI(2)RICHARDUSEYA(3)NYASHACHIKAZAZA(4)WARAIDZOTANDI</strong></li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, BHUNU JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, JUNE 26 2017 </strong></p> <p> </p> <p> </p> <p> </p> <p><em>V. Mukwachari, </em>for the appellant</p> <p><em>T. Marume, </em>for the respondents</p> <p> </p> <p> </p> <p> </p> <p><strong>ZIYAMBI AJA:</strong></p> <p>[1]       This is an appeal against a judgment of the Labour Court dismissing an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.</p> <p> </p> <p>[2]        It arises from the facts set out briefly hereunder. The appellant, in 2010, embarked on a retrenchment exercise which affected the respondents, among others. Following the usual negotiations with the works council, a retrenchment agreement was concluded between the appellants’ and the respondents’ representatives on 8 December 2010.  Thereafter pursuant to this agreement each respondent was requested to, and did, sign an ‘Acknowledgement Form’ containing the agreed terms of the retrenchment. With specific reference to motor vehicles and lap tops, the agreement provides:</p> <p>“Vehicle    +5years – Drive out</p> <p>                 -5years -  Calculated at book value</p> <p>             Laptop      Take out at book value”.</p> <p> </p> <p>Certain items like housing and clothing allowances were provided for in the following terms:</p> <p>“….Housing Allowance – in terms of Bank Policy.</p> <p>Clothing Allowance – in terms of Bank Policy.”</p> <p> </p> <p> </p> <p> [3]       The above notwithstanding, the appellant refused to avail the vehicles and laptops to the respondents reasoning that in terms of the respondents’ contracts of employment they were not entitled to the same. The dispute was referred to arbitration and the Arbitrator ruled in favour of the respondents.</p> <p> </p> <p>            The appellant’s appeal to the Labour Court was dismissed on 24 October 2012. The judgment is date stamped 30 November 2012. In terms of the Labour Act an appeal on a point of law only lay, with leave, to the Supreme Court. Any application for leave was to be made within 30 days of the date of the judgment. No application was filed within that period.</p> <p> </p> <p>[4]        On the 11 September 2013, the appellant filed an application for condonation of the late filing of an application for leave to appeal to the Supreme Court. The reason for the delay was said to be the failure of the office of the Registrar to notify the appellant or its legal practitioners of the delivery of the judgment. No explanation was given by the appellant as to how it eventually became aware of the judgment. The learned Judge found the delay to be inordinate and the explanation for the delay unreasonable. Regarding the prospects of success, the learned Judge after considering the contents of the retrenchment agreement as set out in the ACKNOWLEDGMENT FORM as read with the judgment sought to be appealed against concluded:</p> <p>“It is, in my view, unlikely that an appeal court will interfere with the findings and conclusions reached in this matter, based on the clear and unambiguous contents of the retrenchment agreement.”</p> <p> </p> <p> </p> <p> An application for leave to appeal against this judgment was dismissed by the Labour Court but subsequently granted by this Court.</p> <p> </p> <p><strong>THE APPEAL</strong></p> <p> </p> <p>[5] The first ground of appeal alleged an error at law by the court <em>a quo</em> in finding that the delay was inordinate and the explanation therefor unreasonable. The second alleged a misdirection at law by that court in ruling that the appellant had no prospects of success on appeal in the main matter.</p> <p> </p> <p>[6]        The appeal runs foul of two legal principles.  The first is s 92F(1) of the Labour Act which provides that an appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court. The second is that the indulgence of condonation is granted or denied at the discretion of the court of first instance and an appellate court will not, except in limited circumstances, interfere with the exercise by the lower court of that discretion.</p> <p> </p> <p>[7]        Regarding the first ground of appeal, merely using the words ‘erred in law’ does not create a point of law. It must clearly appear from the ground of appeal what point of law is sought to be determined. In that connection it has been held that a serious misdirection on the facts would amount to a question of law. A finding that the delay in making an application is inordinate and the explanation for the delay unreasonable, is a factual finding. Such a finding does not qualify as a point of law unless it is grossly unreasonable, that is, unless it is a finding that no reasonable court faced with the same facts would have made. No allegation of gross unreasonableness has been made nor is any apparent on the record. Accordingly, this ground of appeal, not being on a point of law, is invalid.</p> <p> </p> <p> </p> <p>[8]        As to the second ground of appeal, it is vague and embarrassing, to say the least.  The appellant has not indicated in this ground of appeal what point of law is to be determined on appeal. A finding that there are no prospects of success on appeal was made by the court<em> a quo.</em>  Simply to allege a ‘misdirection in law’ by the court without alleging the nature of the misdirection does not advise this Court of the point of law on which its decision is required. The second ground of appeal is also invalid in that it does not disclose a point of law. </p> <p> </p> <p> </p> <p>[9]        In any event, condonation is an indulgence granted at the discretion of the court of first instance and is not a right obtainable on request.  In an application for condonation, a court considers, among other things, the length of the delay, the reasonableness of the explanation for it, the prospects of success, and the need for finality in litigation.  Here, the delay was found to be inordinate, the explanation proffered for the delay unreasonable and the prospects of success non-existent.</p> <p> </p> <p> </p> <p>[10]      Where a discretion has been exercised and a decision arrived at by a court of first instance the principles enunciated in <em>Barros and Anor vs Chimphonda</em> are applicable.  They were stated by GUBBAY CJ as follows:</p> <p>“It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed, and the Appellate Court may exercise its own discretion in substitution…”</p> <p> </p> <p>[11]      The judgment of the court <em>a quo</em> is well reasoned. The learned Judge carefully assessed all the relevant factors.  Nothing was alleged, or proved, to justify interference by this Court with the judgment of the lower court.</p> <p> </p> <p> </p> <p>[12]      It is for the above reasons that, after hearing submissions by counsel, the appeal was dismissed with costs.</p> <p> </p> <p><strong>GOWORA JA:                                  </strong>I agree</p> <p><strong>BHUNU JA:                                      </strong>I agree</p> <p><em>T H Chitapi &amp; Associates, Appellant’s Legal Practitioners</em></p> <p><em>Matsikidze &amp; Mucheche, Respondent’s Legal Practitioners</em></p> <p> </p> <p>[Chapter 28:01]</p> <p>Labour Court Rules 2006, Rule 36</p> <p>Chapter 28:01</p> <p>See Barros &amp; Anor v Chimphonda 1999 (1) ZLR58 (S)</p> <p>Small Enterprises Development Corporaton v David Chemhere SC23/02;</p> <p>National Foods v Mugadza SC 105/1995; Hama v National Railways of Zimbabwe SC 96/1996</p> <p>Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR217 (SC); Vimbai Mbisva v Rainbow Tourism rop Limited T/A Ranbow Hotel &amp; Towers SC 32/09; Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S) at 256 B-C; Chinyange v Jaggers Wholesalers SC 24/03</p> <p>Supra at para [6]</p> <p>  At pp 62F-63A.</p> </div></div></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/2018/29/2018-zwsc-29.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37102">2018-zwsc-29.docx</a></span></div><div class="field-item 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/2018/29/2018-zwsc-29.pdf" type="application/pdf; length=193058">2018-zwsc-29.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/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitrator">Arbitrator</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><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/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/retrenchment">Retrenchment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/salaries-and-wages">Salaries and wages</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> Fri, 20 Jul 2018 10:58:40 +0000 admin 8988 at https://old.zimlii.org Standard Chartered Bank Zimbabwe Limited v ZIMRA (SC 23/18, Civil Appeal No. SC 145/15) [2018] ZWSC 23 (20 March 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/23 <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>  REPORTABLE                  (20)</strong></p> <p> </p> <p> </p> <ol> <li> </li> </ol> <p><strong>v</strong></p> <p><strong>   ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA, MAVANGIRA JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, MAY 22, 2017 &amp; MARCH 20, 2018.</strong></p> <p> </p> <p> </p> <p> </p> <p><em>AP de Bourbon, </em>for the appellant</p> <p><em>T Magwaliba, </em>for the respondent</p> <p> </p> <p> </p> <p><strong>ZIYAMBI AJA:</strong></p> <p>[1]        This is an appeal against a judgment of the High Court sitting as an Appeal Court in terms of s 65 of the Income Tax Act [<em>Chapter 23:06</em>] (hereinafter referred to as “the Act”).  It concerns certain income tax assessments made in respect of the appellant by the respondent with regard to the years 2009, 2010 and 2011. Of the four issues which were raised in the High Court, three were decided against the appellant and form the subject of this appeal. They are:</p> <p>“Whether or not the appellant was entitled to claim the costs of a staff reduction exercise in the year in which the offer was made to the staff to take voluntary retirement;  whether the appellant was correctly held to have earned interest in respect of offshore loans made to various customers in each of the three years of the amended assessments; and  whether the charges debited against the foreign <em>nostro</em> accounts of the appellant by the bank operating such accounts were liable to withholding tax in terms of s 30, as read with the 17th Schedule, of the Act.”</p> <p>I deal with each of these issues in turn.</p> <p> </p> <p><strong>Whether or not the appellant was entitled to claim the costs of a staff reduction exercise in the year in which the offer was made to the staff to take voluntary retirement.</strong></p> <p> </p> <p>[2]        The parties were agreed that if the staff reduction exercise constituted a retrenchment in terms of the Labour Act then the costs of such a scheme would properly be written into the taxable income of the year in which the retrenchment took place. They were also agreed that the definition of “retrench” in section 2 of the Labour Act was broad enough to include the exercise undertaken by the appellant.  The question which fell to be decided was whether the exercise constituted a retrenchment in terms of the Labour Act. I did not understand the appellant to dispute the submission made on behalf of the respondent that the retrenchment would take effect from the date of its approval by the Minister. </p> <p> </p> <p>[3]        The background facts are largely common cause.  The appellant, a Commercial Bank operating in Zimbabwe, embarked on a staff reduction exercise during the year 2009.  By resolution of its Board of directors dated the 26 November 2009, the appellant undertook “a voluntary retrenchment exercise to reduce its staff head count by up to two hundred and fifty-two (252) staff members.” The rationale for the decision taken by the Board was the downturn in economic activity which triggered a drastic fall in business volumes from average monthly transactions of US$1.9m in 2008 to US$380 000.00 in 2009 in the face of static staffing levels in excess to capacity. All interested staff were required to submit formal applications by 31 December 2009.  The appellant reserved the right to approve or decline such applications.</p> <p> </p> <p>[4]    Between 3 and 31 December 2009, a total of 74 applications were received by the appellant. However, the confirmation certificates, wherein each applicant affirmed freely and voluntary terminating employment, were all signed by the 74 during the period 7 to 14 January 2010.  Each employee was given 3 months’ notice of termination of his employment from the date of acceptance of his application. The gross costs of the ‘voluntary retrenchment’ exercise was US$1 995 402. A further 27 staff members submitted applications in January and February 2010, but this appeal does not relate to them.  It is confined to the exercise in respect of the 74.</p> <p> </p> <p>[5]       In the return for the tax year ending 31 December 2009, the appellant submitted applications in respect of each of the 74 employees to the respondent for a tax directive. It claimed a deduction for staff retrenchment costs in terms of s 15 (2) (a) of the Act as an expenditure incurred for the purpose of trade and for conducting its business and earning income in that year of assessment.  The respondent disallowed the deduction but included it in the amended assessment for the 2010 tax year.</p> <p> </p> <p>[6]        The appellant contended that the deduction ought to have been allowed in the year 2009 which is the year in which the expenditure was incurred. Mr <em>de Bourbon</em> submitted that the exercise was a voluntary retirement scheme to which the provisions of s 12C and 12D of the Labour Act did not apply.  By accepting the applications of the 74 on or before 31 December 2009, the appellant had incurred an unconditional legal obligation to make payment to the 74. Therefore, the obligation to pay the 74 arose in December 2009 and should be deducted in the assessment year 2009.</p> <p> </p> <p>[7]        On behalf of the respondent (“Zimra”), Mr <em>Magwaliba</em> countered that the exercise constituted a retrenchment in terms of the Labour Act. He accepted the legal position that in terms of s 15(2)(a) of the Act, the costs of the exercise were deductible in the year of expenditure, <em>viz</em>, the year in which the expenditure is incurred even if paid in a subsequent year. He submitted, however, that in the instant case, the assessment was properly made in 2010 which is the tax year in which the expenditure was incurred.</p> <p> </p> <p>[8]        At page 6 of its judgment the court <em>a quo</em>, in arriving at its conclusion that the exercise constituted a retrenchment in terms of the Labour Act said:</p> <p>“The onus to show on a balance of probabilities that the scheme was not a retrenchment exercise fell on the appellant.  The discharge of the onus was complicated by the sole witness called by the appellant on this aspect.  He conceded under cross examination that the scheme constituted a retrenchment exercise.  His attempt to correct the picture in re-examination failed to paper the cracks.  His prevarication on the point did not paint him as a credible witness in that respect only.  The documentation emanating from the appellant is replete with reference to retrenchment exercise, retrenchment costs and retrenchment expenses”.</p> <p> </p> <p> </p> <p> [9]       As it was submitted on behalf of the respondent, the appellant itself referred to the exercise as a retrenchment. In his heads of argument before this Court, Mr <em>de Bourbon</em> explained those references away by describing them as ‘inappropriate’. Para 2 of the appellant’s heads of argument reads:</p> <p>“At the end of November 2009, the appellant resolved to undertake what it termed a <em>voluntary retrenchment exercise </em>(record 55) ...”</p> <p>And at Para 4:</p> <p>“For the purposes of its accounts, the appellant claimed the whole costs of the voluntary separation scheme (<em>often using the inappropriate term retrenchment</em>) as a cost of its business in the tax year ending 31 December 2009.” (My emphasis).</p> <p> </p> <p>[10]      It is common cause that the appellant submitted, for approval by the Retrenchment Board, a list of the employees affected by the exercise. Such a procedure is necessary only where employees are being retrenched. In four letters dated between 12 January and 2  February  2010, the appellant was advised by the Minister of the Board’s approval of the retrenchment exercise in relation to 94 employees, including the 74, in the following terms:</p> <p>“Re: Retrenchment of [the names of the staff members].  The retrenchment Board acknowledges receipt of correspondence referring to the Works/Employment Council Agreement in Form LRR2.  Please proceed as per agreement.” (My underlining)</p> <p> </p> <p> </p> <p>[11]     It is evident that the appellant followed the retrenchment procedure set out in the Labour Act right down to the use of the forms.  The approvals were granted by the Board in 2010. In the light of the above, the conclusion reached by the learned Judge that the staff reduction exercise constituted a retrenchment in terms of the Act was inescapable. I therefore agree with Mr <em>Magwaliba</em> that the commitments made by the appellant to the employees were conditional upon the approval of the Minister of Labour and Social Services and that since the approvals were only granted in 2010, the expenditure could not be deducted in the tax year ending 2009 but was properly deducted in the tax year 2010.</p> <p> </p> <p> <strong>Whether the appellant was correctly held to have earned interest in respect of offshore loans made to various customers in each of the three years of the amended assessments.</strong></p> <p> </p> <p> [12]    On 6 October 2009, the appellant (sometimes referred to herein as “the Bank”) obtained authority from the External Loans Co-ordination Committee of the Reserve Bank of Zimbabwe (“ELCC”) to borrow offshore funds on behalf of its clients. The letter of approval read, in part:</p> <p>“Re: Standard Chartered Bank Pre and Post Shipment Finance Facility USD100Million.</p> <p> </p> <p>Please be advised that your application for the approval of a pre and post shipment finance facility to the tune of USD100 million has been approved by the External Loans Co - ordination Committee (ELCC)…”</p> <p> </p> <p> </p> <p> </p> <p>The lender was stated to be Standard Chartered Bank PLC London and the borrower Standard Chartered Bank Zimbabwe Limited.  The approval related to an ordinary non-tobacco pre and post shipment finance facility in the sum of US$50 million as well as a further US$50 million for tobacco financing.  The facilities expired on the 31 August 2010. However, on the 9 September 2010, the ELCC approved an enhanced ordinary non-tobacco pre and post shipment finance facility increasing the loan from US$50 million granted on 6 October 2009 to US$100 million sought by the appellant from the offshore related party at an interest rate of Libor plus 4%.  The tobacco pre-and post-shipment facility was also increased from US$50 million to US$100 million with an interest rate of Libor plus 3% expiring on the 31 August 2011.  </p> <p> </p> <p>[13]     During the period 2009 to 2012, the appellant extended loan facilities to 6 onshore customers of which 3 were tobacco companies.  The remaining 3 comprised of a cotton company, a cement manufacturing company and a manufacturing and distributing conglomerate. In terms of each of the facility letters the appellant stated itself to be the lender and the customer the borrower. Each agreement specified the amounts borrowed, the period of repayment, the provision of security to the appellant and the manner of calculation of interest. Save for the conglomerate in respect of which in one instance, (the facility dated 2011 for US$200 million) the courts of England were to have jurisdiction, the courts of Zimbabwe were to have jurisdiction to settle any dispute arising in connection with the facility letters.  In terms of the facility letters, all amounts paid to the Bank in repayment of the facility would be applied firstly to the payment of interest accrued and any fees or charges due and thereafter to the reduction of the capital amount. </p> <p> </p> <p>One tobacco company was required to open an Evidence Account with the appellant into which account repayments would be made.  Any balance in that account after the repayment of the facilities would be applied toward the reduction of “any other offshore loans made available by the Bank on the due date of such loans”.  Any residual surplus balance in the Evidence Account would be paid to the borrower. Interest was to be debited to the borrower’s account at a ‘day convenient to the bank’.</p> <p> </p> <p>[14]     The respondent took the view that the interest in terms of each loan agreement had been earned by the appellant and therefore became part of the appellant’s taxable income. On this basis, the respondent wrote back into the appellant’s taxable income for the three years under mention, the interest paid by the 6 onshore borrowers. The appellant’s objection to the assessments was disallowed by the respondent and its appeal to the High Court was dismissed.</p> <p> </p> <p><strong>Submissions on appeal</strong></p> <p> </p> <p>[15]      It was contended by Mr <em>de Bourbon</em>, on behalf of the appellant, that interest accruing on the loans had been paid directly to the offshore lender, namely, Standard Chartered Bank PLC London. Regarding the 3 tobacco companies and the cotton company, which were in a separate category by virtue of the Exchange Control (Tobacco Finance) Order 2004 and the Exchange Control (Cotton) Order,2008 the appellant had neither received, nor accrued the right to, any interest and that the finding of the court <em>a quo</em> to the contrary was wrong.</p> <p> </p> <p>Regarding the loans to the conglomerate and to the cement company, these were external loans paid externally and the agreements were subject to the laws of England. The only factors linking the appellant to the matter are the facility letters which were drawn in the name of the appellant but even that did not establish that the appellant either received or accrued the right to interest on these loans as all payments were made directly to the offshore bank Standard Chartered PLC in London.</p> <p> </p> <p>[16]      On behalf of the respondent Mr <em>Magwaliba</em> submitted that the real issue for determination was whether the appellant had discharged the onus of establishing, on the evidence placed before the court, that there was no <em>causa</em> for the payment of interest to it by the onshore borrowers and that such interest was in fact not earned by the appellant. That onus, he submitted, was not discharged by the appellant. He drew the court’s attention to the unsatisfactory nature of the evidence led by the appellant from its head of corporate banking, Mr Young, as found by the court <em>a quo,</em> in particular, the following remarks at page 25 of the judgment:</p> <p>“There was a plethora of disquieting features in the testimony of the head of corporate banking.  He disputed that any money was paid to the appellant by the offshore lender contrary to the stipulation in clause 3 of the MRPA.  He disputed that the appellant borrowed funds from the offshore lender, again contrary to all the approvals he produced that emanated from the central bank.  The lender was clearly indicated as the offshore related party and the [appellant] the borrower and in later approvals the beneficiary as the appellant.  The unexplained discrepancy between the first facility letter and the acceptance agreement in respect of the first tobacco company did not engender confidence in his testimony.  More importantly, the failure to produce the acceptance agreements of all the other facility letters save for the one in respect of the conglomerate, exhibit 7, and rate fix documents in respect of all the facility letters undermined his credibility.  The impression left in my mind was that the appellant was deliberately hiding information in corporate underbrush.  Similarity of all the letters save for the first two for the first tobacco company with the ones the appellant admitted were provided with local funds undermined the appellant’s case.  There was no reference to any evidence account in these facility letters.  The choice of law clause conferred jurisdiction on the local courts.  The calculation of the computation of the interest rate in respect of the cement manufacturer demonstrated that it was receiving onshore finance from the appellant. </p> <p> </p> <p>In my view, it was simply incredible that the appellant did not have the capacity to fund the requirements of the conglomerate.  It admitted to funding the conglomerate in the aggregate sum of US$30 million from onshore funds.  In any event it held approvals from the ELCC to on lend funds borrowed offshore to both tobacco and seed cotton merchants and other non-tobacco customers.  I was satisfied that the head of banking, for reasons best known to himself and the appellant chose to mislead this court about the nature of the interest payments that were paid by the six onshore companies”.</p> <p> </p> <p> </p> <p>[17]     It is evident that the appellant’s witness did not make a good impression on the court <em>a quo</em> which found that the allegations made in his evidence contradicted the facility letters and the ELCC approvals which were produced in evidence. For instance, despite his insistence that Standard Chartered Bank PLC London was the lender, this allegation was contradicted in each facility letter wherein the appellant was stated to be the lender and the customer the borrower.  Each agreement required interest to be paid to the appellant. In each facility letter the appellant obtained a tax indemnity from the borrower.</p> <p> </p> <p> [18]     The gist of the evidence of Mr Young and the beneficiaries of the facility letters in question was that the beneficiaries sourced offshore funds which they borrowed from Standard Chartered Bank PLC London (the offshore bank) and repaid with interest to the offshore bank, the appellant acting merely as a conduit pipe for facilitating access to the funds and for seeking Reserve Bank approval on behalf of both the borrowers and the offshore bank. However, while their evidence corroborated each other, it conflicted with the documentary evidence placed by the appellant before the court purportedly in support of its case.</p> <p> </p> <p>[19]      It seems to me that what clearly emerges from the contents of the facility letters and the ELCC approvals, read together, is that the appellant borrowed money from the offshore bank for on lending to the six onshore customers or borrowers.  The six borrowers were to make payments in terms of their agreements with the appellant. In terms of these agreements all repayments were to be applied first to interest and then to capital. Nothing in the facility agreements required the borrowers to make payment to any person other than the appellant. In the premises, Mr Young’s evidence to the effect that the repayments, inclusive of interest, were made offshore to the offshore bank on the appellant’s instruction, called for an explanation. The explanation given by Mr Young is that the bank was the agent of the offshore bank. But this explanation presents a further difficulty. It is this. The Master Risk Participation Agreement (MRPA) concluded between the appellant (as Grantor) and the offshore bank (as Participant) and placed by the appellant before the court as an exhibit, expressly provides to the contrary.  Clause 6.4 provides in relevant part:</p> <p>“6.4   Relationship:  There is, and the Participant acknowledges that there is nothing in this Master Agreement or any Acceptance Agreement or any other agreement or understanding between the parties in relation to a participation which:</p> <ul> <li>Constitutes the Grantor an agent, fiduciary or trustee for the Participant;”</li> </ul> <p> </p> <p> </p> <p>[20]      Granted, the MRPA further provides that the acceptance agreement would prevail over it. However, the acceptance agreement was not produced by the appellant and it was not part of the appellant’s case that the acceptance agreement contained instructions requiring the appellant to ensure that payments were made offshore. Suffice it to say that the evidence presented by the appellant established no justification for payments in respect of the loans to be made offshore.  The second issue is, therefore, determined in favour of the respondent.</p> <p> </p> <p><strong> Whether the charges debited against the foreign <em>nostro</em> accounts of the appellant by the bank operating such accounts were liable to withholding tax in terms of s 30, as read with the 17th Schedule, of the Income Tax Act [<em>Chapter 23:06</em>].</strong></p> <p> </p> <p>[21]     Section 30 of the Income Tax Act provides:</p> <p><strong>“30 Non-residents’ tax on fees</strong></p> <p> </p> <p>There shall be charged, levied and collected throughout Zimbabwe for the benefit of the Consolidated Revenue Fund a non-residents’ tax on fees in accordance with the provisions of the 17th Schedule at the rate of tax fixed from time to time in the charging Act”.</p> <p> </p> <p>The 17th Schedule to the Act provides in paragraph 1:</p> <p>“(1)…</p> <p>“fees” means any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative or consultative nature, but does not include any such amount payable in respect of—</p> <p> </p> <p>(2) For the purposes of this Schedule—</p> <ul> <li>fees shall be deemed to be from a source within Zimbabwe if the payer is a person who or partnership which is ordinarily resident in Zimbabwe;”</li> </ul> <p> </p> <p> </p> <p>[22]      The appellant holds <em>nostro</em> accounts with certain foreign banks. The appellant told the court that transactions in these accounts were conducted in the following manner. A customer would instruct the appellant to make payment to a third party. The appellant generated a telegraphic transfer through SWIFT (a safe international payment processing platform used by all banks to transfer money from one bank to another), to transfer the funds from its relevant <em>nostro</em> account to the third party’s designated bank account.  In line with international banking practice, SWIFT automatically charged a fixed rate against the <em>nostro</em> account based on the number of clearing transactions that operated through the system.  SWIFT charged the related account directly from that transaction by debiting the account without raising an invoice. The appellant’s witness Mr Young equated the <em>nostro</em> bank charges with fees paid by customers of local banks for services rendered and charges levied for maintaining an account with the local bank. The appellant was charged fees for particular transactions that went through the <em>nostro</em> accounts. He conceded that the debits to the <em>nostro</em> accounts represented money earned by the foreign bank.</p> <p> </p> <p>[23]     The respondent took the view that the <em>nostro</em> charges, whether stated as service charges or transaction related charges, are subject to non-resident tax on fees as they fall under the definition of ‘fees’ as defined in s 30 as read with the 17th Schedule to the Act. The court <em>a quo</em> agreed.</p> <p>[24]      Mr <em>de Bourbon</em> submitted in his heads of argument that the <em>nostro</em> charges were not liable to non-resident tax for three reasons.</p> <ul> <li>There had to be a payer who made a physical payment from which the tax could be withheld. Since the appellant was not a payer the schedule did not apply.</li> <li>The payment had to be from a source within Zimbabwe and no payment had</li> </ul> <p>been made from Zimbabwe, the debits having been made by the foreign bank</p> <p>to the <em>nostro</em> accounts.</p> <ul> <li>The fees had to be in respect of services of a technical, managerial or administrative nature. In this case the fees did not fall within the above description and the section did not apply.</li> </ul> <p> </p> <p>Reliance was placed on the judgment of CHEDA J in <em>Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimbabwe Revenue Authority</em>  in which it was held that payment of a commission outside Zimbabwe by a foreign client to a foreign marketing agent of a local safari operator did not constitute payment of fees in terms of para 1(1) of the 17th Schedule of the Income Tax Act.</p> <p> </p> <p>[25]      On behalf of the respondent it was submitted as follows.  The foreign banks earned certain fees for transactions undertaken on the <em>nostro</em> accounts held by them on behalf of the appellant.  Those fees were paid by the appellant.  Whichever method was employed by the appellant in making payment, money moved from the account held in the name of the appellant to that of the foreign or non-resident and the appellant is consequently regarded as having paid or extinguished the debt. By virtue of section 30 of the Act, the appellant was obliged, as payer, to withhold tax on the fees and charges.</p> <p> </p> <p>It was further submitted that in so far as the <em>Sunfresh</em> case determined that the originating cause of the fees paid to the non-resident was not Zimbabwe, that case was wrongly decided.  The respondent referred this Court to the decision of the High Court in <em>Zimasco Ltd v Commissioner-General of the Zimbabwe Revenue Authority</em> which it urged us to accept as the correct exposition of the law.</p> <p>           </p> <p>[26]      In the Zimasco case the fees were for service rendered by a foreign agent to a local safari operator.  The High Court held that the originating cause of the fees was in Zimbabwe and that withholding tax was payable by the local safari operator. At page 3 of the judgment the learned Judge said the following:</p> <p>“the appellant disputes that the source of the commission is from within Zimbabwe and seeks to rely for that proposition on the decision in <em>Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimra </em>2004 (1)ZLR 506 (H).  In that case Cheda J held inter alia that payment of a commission by a foreign client to a foreign marketing agent of a local safari operator outside the country did not under para 1(1) of the 17th Schedule of the Income Tax Act constitute payment of fees from within Zimbabwe even though the originating cause was the safari operation in Zimbabwe.  In my view, however, the facts in this case are distinguishable from those in the <em>Sunfresh</em> decision. In casu, the appellant clearly qualifies as the “payer”, i.e., “any person who or partnership which pays or is responsible for the payment of fees…” and is ordinarily resident in Zimbabwe, whereas in <em>Sunfresh</em> the payment of fees or commission was ostensibly done by foreign clients to a foreign marketing agent.”</p> <p> </p> <p> </p> <p>On the interpretation of ‘fees’ as set out in the 17th Schedule, the Court ruled:</p> <p>“The respondent submitted that the words “any amount” above give a broad definition to the term fees and contended that money paid as commission could be regarded as “any amount” for the purposes of s 1(1) of the 17th Schedule.  In my view, the respondent was correct in its interpretation of the words “any amount” to include commission.  From the above definition, it is clear that the legislature intended “fees” to cover any sum of money, by whatever name called, paid for services rendered of a technical, managerial, administrative or consultative nature save for those that are expressly excluded”.</p> <p> </p> <p> </p> <p> [27]    I respectfully associate myself with the views quoted above.   As in the <em>Zimasco</em> case, the originating cause of the fees in <em>casu</em>, is entirely in Zimbabwe.  The fees and charges in issue are raised by the banks holding the <em>nostro </em>accounts in respect of transactions undertaken by them on behalf of the appellant which issues an instruction on behalf of its clients in Zimbabwe and pays on behalf of those clients using its <em>nostro</em> accounts. These transactions clearly amount to services of a managerial or administrative nature within the meaning of para 1(1) of the 17th Schedule.</p> <p> </p> <p>Regarding the <em>Sunfresh </em>case it would appear that the facts are distinguishable from those in the present matter. However, in so far as it conflicts with the <em>Zimasco</em> decision on the issues discussed above I would consider the <em>Zimasco</em> decision to be the correct exposition of the law.</p> <p> </p> <p>[28]     Accordingly, I agree with Mr <em>Magwalib</em>a that all three requirements mentioned by Mr <em>de Bourbon</em> are satisfied. It follows that the appellant, as payer of the fees, was obliged to withhold the non-resident tax and remit such tax to the Commissioner within 30days.</p> <p> </p> <p><strong>Disposition</strong></p> <p>[29]     The appeal falls to be dismissed on all three grounds.</p> <p>On the question of costs, it was agreed by the parties that there should be no order as to costs.</p> <p> </p> <p>It is accordingly ordered as follows:</p> <p>The appeal is dismissed.</p> <p>There shall be no order as to costs.</p> <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> </p> <p><em>Gill Godlonton and Gerrans</em>, appellant’s legal practitioners</p> <p>   [Chapter 28:01]</p> <p> </p> <p>Kadir &amp; Sons (Pvt) Ltd v Panganai and Anor 1996 (1) ZLR 598(S) @604C</p> <p>Caltex Oil (SA) Ltd v Secretary for Inland Revenue 1975 (1) SA 665 (A) at 674.</p> <p>Labour Act s12C</p> <p>S.I 161/2004 as amended by SI 229/2004</p> <p>S.I 150/2008</p> <p>2004 (1) ZLR 506 (H)</p> <p>HH 149-16</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/2018/23/2018-zwsc-23.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=53744">2018-zwsc-23.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/2018/23/2018-zwsc-23.pdf" type="application/pdf; length=242167">2018-zwsc-23.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/employer">Employer</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/retrenchment">Retrenchment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/income-tax">Income tax</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/income-income-tax">income (Income tax)</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/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1967/5">Income Tax Act [Chapter 23:06]</a></div><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 13 Jun 2018 12:35:07 +0000 admin 8900 at https://old.zimlii.org