Salaries and wages https://old.zimlii.org/taxonomy/term/10438/all en Muyambo v Beitbridge Rural District Council (HB 97-21, HC 726/19) [2021] ZWBHC 97 (03 June 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/97 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 97-21</p> <p>HC 726/19</p> <p><strong>RATANG MUYAMBO</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>BEITBRIDGE RURAL DISTRICT COUNCIL</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO19 FEBRUARY 2020 &amp; 3 JUNE 2021</p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p><em>K. Ngwenya</em> for the applicant</p> <p><em>J. J. Moyo </em>for the respondent</p> <p> </p> <p>            <strong>TAKUVA J:</strong>  This is an application for a declarateur against the respondent.  Applicant seeks an order declaring that the respondent’s deduction of her health allowance extended to her by the Ministry of Health and Child Care is illegal and unlawful.  Further applicant seeks an ancillary order for the payment of all monies that have been deducted by the respondent to date.</p> <p><strong>Background facts</strong></p> <p>            Applicant is employed by the respondent as an Executive Officer Health.  By virtue of that position the Ministry of Health and Child Care put in place an arrangement for some allowable deduction allowance for health personnel in councils including the applicant.  The applicant’s allowance total $218,00 per month. Applicant received her health allowance without any challenges until2010 when the allowance was deducted from her salary by the respondent.  Following discussions, the issue was rectified.  However in March 2015, respondent started again deducting the applicant’s health allowance from applicant’s salary.</p> <p>            Aggrieved, applicant approached the Ministry of Labour arguing that the effect of the deduction of her health allowance was a reduction in her salary contrary to the provisions of the Labour Act Chapter 28:01.  The applicant also claimed payment of all the monies deducted by the respondent up to that date.  A Designated Agent eventually dealt with the matter and dismissed the applicant’s claim.</p> <p>            In this application, applicant argued that the relief she seeks is different from the relief granted by the Designated Agent in that the dispute before the Designated Agent was whether the applicant’s salary had been unlawfully reduced whereas the effect of a declarateur is to declare the applicant’s “entitlement to the allowance”.  Applicant agrees that one of the issues before the Designated Agent was “whether or not the claimant’s salary was unilaterally reduced”.  In fact, the issue is put beyond any reasonable doubt by the applicant in the following words; “what the applicant has referred to this Honourable Court is that a declaration be made that the deduction by the respondent of her health allowance paid by the Ministry of Health and Child Care be declared unlawful and illegal.  Indeed no pronouncement was made by the Designated Agent on this issue.  Accordingly, it is submitted that the respondent’s contention that “a tribunal of competent jurisdiction has made a pronouncement of the applicant’s legal entitlement to her health allowances has no merit and cannot be sustained”.  (my emphasis)</p> <p>            According to the applicant there are only three issues for determination namely;</p> <p>“(i)       whether the respondent has any authority or legal basis to deduct applicant’s health allowance paid by the Ministry of Health and Child Care?</p> <p>(ii)        whether the applicant’s legal entitlement to the health allowance paid by the Ministry of Health and Child care has been determined by a tribunal of competent jurisdiction; and</p> <p>(iii)       whether the applicant has managed to satisfy the requirements for a declarateur and the relief she is seeking”.</p> <p> </p> <p>            Applicant proceeded to argue her case on the above premise.</p> <p>            The application was opposed by the respondent on the ground that the matter has already been determined by a tribunal of competent jurisdiction.  In the circumstances, the applicant ought to have taken the necessary steps to challenge the decision that was made either through an appeal process or one of review so that the decision if wrong at law, may be set aside.</p> <p>            The defence is one of <em>res judicata</em>.  In my view this is the issue before this Court.  The requirements of the principle of <em>res judicata</em> were set out in the following cases; <em>Wolfenden</em> v <em>Jackson</em> 1985 (2) ZLR 313 (SC); <em>Towers </em>v <em>Chitapa </em>1996 (2) ZLR 261(H); <em>Farai Chitsinde</em> <em>and Nyasha Chitsinde</em> v <em>Stanny Musa and the Registrar of Deeds and The Deputy Sheriff</em> HH-274-2010; <em>S. Makonyene</em> v <em>Alfred Muchini and the Sheriff and The Master of the High Court</em> HH-46-2013.</p> <p>            In a nutshell the requirements are that;</p> <ol> <li>The two matters involve the same parties;</li> <li>The two matters must involve the same issues; and</li> <li>The earlier matter having been brought before a court of competent jurisdiction and which court made its determination on that issue – see the <em>Chitsinde</em> case <em>supra</em>.</li> </ol> <p><em>In casu</em>, it is common cause that in both the matter before the Designated Agent, and in this application, applicant and the respondent remain the same parties.</p> <p> As regards the second requirement, there exists a dispute as to whether the issue is the same.  I must note that this requirement is interpreted expansively so as to permit the probability of the defence being satisfactorily invoked in respect of an issue determined as part of the <em>ratio decidendi</em> of the previous decision – see <em>Towers</em> v <em>Chitapa supra.</em></p> <p>In order to unravel the origin and basis of this dispute, it is necessary for the factual matrix to be closely examined.  It is common cause that applicant presented a set of facts relating to a labour dispute to a competent labour tribunal and urged that tribunal to find that the deduction by the respondent from her pay and benefits of an allowance given by the Ministry of Health and Child Care, was unlawful and that the respondent should be ordered to pay back amounts so deducted since 2015.  This version is consistent with applicant’s written submissions to the Designated Agent.  What then is the version presented to this Court?  The answer is in applicant’s founding affidavit to this application.</p> <p>A reading of the submissions by the applicant in the tribunal below and her founding affidavit in this application present the same case.  I take the view that in both presentations, the case she makes is that as an Executive Health Officer, she is entitled to allowances from the Ministry of Health and Child Care, whose aggregate is $218,00 and the respondent has no right to withhold this allowance  and must pass it on to her in full.  In both, she then asks for payment of these allowances from 2015 to date.</p> <p>Even the Designated Agent correctly identified the case he was asked to determine.  In his ruling he states; “The issues in dispute”.  According to claimant her salary which was initially $1 172,78 and which included allowances from the Ministry of Health and Child Care was unilaterally reduced by respondent to $954,78 by scrapping of Ministry of Health monthly allowances of $218,00 from 2015onwards.  The claimant is therefore claiming $7 412,00 in unpaid allowances of $218,00 over a period of 34 months”.</p> <p>In my view, that is the same complaint applicant makes in this application and the relief sought is the same as what was sought in the lower tribunal.  Further, the overall effect of the decision of the Designated Agent was that there was nothing wrong in the manner respondent treated the allowances received from the Ministry of Health, i.e. processing it through its payroll and topping up to ensure that the applicant receives her full pay as per her contract of employment.  He also found that it was quite proper to subject the allowance to tax.  More importantly, he found that there was nothing wrong or illegal in the way respondent was doing things.  Accordingly, he concluded that the applicant’s claim had no merit and he dismissed it.</p> <p>On the other hand, the effect of the declarateur sought, if granted will be to provide for exactly the opposite of what the Designated Agent found in that applicant now wants this Court to find that the respondent acted unlawfully, as it has no right to tax the allowance from the Ministry of Health, and it must be passed on to her as it is.  Clearly, such a finding would contradict the Designated Agent’s finding.  Whilst this CCourt is a superior Court, it would be undesirable for it to make decisions that contradict those made by lower tribunals and without the decision of such lower tribunals first being set aside.  This is the hallmark of the principle of <em>res judicata.</em></p> <p>In this regard, I agree with Mr Moyo’s submission respondent that, “To try and distinguish the case presented here from the case that was presented to the Designated Agent and the decision of the Designated Agent and the one sought here, is just splitting hairs.  The applicant is trying to have the Designated Agent overruled without appealing against his decision or subjecting it to an application for review.  This is legally untenable …”</p> <p>For these reasons, I find that the applicant is essentially bringing before this Court the same issue that she brought before the Designated Agent of the National Employment Council for the Rural District Councils and without first having the decision of the Designated Agent set aside.  The wording and content of the declarateur in essence seek an answer to the very question that the Designated Agent was asked to determine, namely whether the deduction of the health allowance provided by the Ministry of Health by the respondent was proper.</p> <p>I now turn to the 3rd requirement of the principle of <em>res judicata</em>.  In terms of section 93 as read with section 63(b) of the Labour Act [Chapter 28:01], a Designated Agent of an Employment Council enjoys exclusive jurisdiction in determining labour disputes within the industry he is appointed to act as Designated Agent and to the exclusion of a labour officer.  Therefore, there is no argument that this is a tribunal of competent jurisdiction. Further, applicant also understood it as such which is why she correctly referred her matter to that tribunal.</p> <p>This application is simply an invitation to go back and re-argue before this Court, a case that the parties have argued elsewhere and a decision made for them.  The fact that the issues are the same is further demonstrated by the ancillary relief sought namely the “payment of all the monies that have been deducted by the respondent to date”.  Essentially, the Designated Agent declared the manner in which the deduction was carried out by the respondent legal and lawful. On the other hand the applicant seeks through a declarateur that the deduction be declared by this Court illegal and unlawful.  The unlawfulness and illegality issues are settled by the earlier matter and the applicant cannot reopen them while the Designated Agent’s ruling stands intact.</p> <p><strong>Disposition</strong></p> <ol> <li>The doctrine for <em>res judicata</em> applied in this case.</li> <li>The application is dismissed with costs.</li> </ol> <p> </p> <p><em>Messrs T. J. Mabhikwa &amp; Partners, </em>applicant’s legal practitioners</p> <p><em>Calderwood, Bryce Hendrie &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/97/2021-zwbhc-97.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22277">2021-zwbhc-97.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/bulawayo-high-court/2021/97/2021-zwbhc-97.pdf" type="application/pdf; length=329239">2021-zwbhc-97.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/salaries-and-wages">Salaries and wages</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/res-judicata">Res judicata</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/essentials-res-judicata">essentials of res judicata</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-res-judicata">principles (Res judicata)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-res-judicata">requirements for (Res judicata)</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/harare-high-court/2010/274">Chitsinde and Another v Musa and Others (CS 129/08) [2010] ZWHHC 274 (14 December 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2013/46">Makonyere v Muchini &amp; Others (HC 6053/2007) [2013] ZWHHC 46 (13 February 2013);</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, 10 Jun 2021 12:55:31 +0000 Sandra 10049 at https://old.zimlii.org Mawire v Rio Zim Limited (Private) Limited (SC 13-21, Civil Appeal No. SC 795/17) [2021] ZWSC 13 (09 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/13 <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>Judgment No. SC 13/21</strong></p> <p><strong>Civil Appeal No. SC 795/17</strong></p> <p> </p> <p><strong>DISTRIBUTABLE</strong><strong>  (12)</strong></p> <p><strong>MOSES     MAWIRE </strong></p> <p><strong>v</strong></p> <p><strong> RIO     ZIM     LIMITED     (PRIVATE)     LIMITED</strong></p> <p>                                                                                                                   </p> <p><strong>SUPREME COURT OF ZIMBABWE      </strong></p> <p><strong>GOWORA JA; PATEL JA; MAVANGIRA JA</strong></p> <p><strong>HARARE:     MARCH 9, 2018                                    </strong></p> <p>                     </p> <p> </p> <p><em>T.T.G. Musarurwa, </em>for the appellant</p> <p><em>T. Mpofu,</em> for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>:        After hearing the parties on the 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:</p> <p>“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”</p> <p>                                                                      </p> <p>The following are the reasons.</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p>The appellant was employed by the respondent as a Human Resources Superintendent on 1 November 2006. He was based at the Head Office in Harare. In February 2009 he was transferred to Renco Mine.  His contract of employment provided for, amongst other things, locality allowance, leave bonus and a company vehicle which was to be fuelled and maintained by the company.</p> <p>In February 2009, as happened nationwide, the respondent shifted from the use of the Zimbabwean dollar to the United States dollar when the Zimbabwean dollar became moribund. On the 19 February 2009, the respondent wrote a letter to the appellant notifying him that, following the adoption of the United States dollar, his salary would be US$4,147.43 per month. The letter was silent on allowances.</p> <p> </p> <p>On 21 March 2009, through an office memorandum, all the respondent’s employees were notified of the changes in their salaries and allowances. The memorandum provided that the respondent had implemented salary scales based on regional ‘SADC’ rates for employees in all grades. Consequently, transport and meals allowances together with leave bonus payable when employees proceeded on annual leave were to fall away with effect from 1 March 2009 for all employees in grade 10 and above. Transport and meals allowances were also removed for employees in grade 10 and above. The respondent further indicated that the employees would be kept abreast of further changes.</p> <p> </p> <p>Following the adoption of the United States dollar, the appellant was being paid a globular salary without any allowances. The respondent did not provide the appellant with the motor vehicle, but rather supplied him with fuel and paid for the maintenance of his personal car. This was regardless of the fact that the respondent’s contract of employment stated that he was entitled to allowances and a motor vehicle maintained by the company.</p> <p> </p> <p>In June 2014, the appellant raised a complaint of unfair labour practice with the Labour Officer. He demanded payment of the following:</p> <ol> <li>Outstanding locality allowance for the period from February 2009 when he was transferred to Renco Mine up to the time when he made the complaint in June 2014,</li> <li>Leave bonus from 2009 to 2013, and</li> <li>Mileage for use of his personal motor vehicle from 1 March 2007 up to the time of the making of the claim.</li> </ol> <p> </p> <p>At conciliation, the parties failed to reach a settlement and the matter was referred to arbitration.</p> <p> </p> <p>Before the arbitrator, the appellant argued that he was entitled to payment of outstanding locality allowances and leave bonus and to a motor vehicle coupled with its maintenance and repairs. The appellant had been using his personal vehicle for the respondent’s business as the respondent had failed to provide the motor vehicle. For this reason, he claimed compensation on the mileage of his vehicle on the same basis as if it was on hire to the respondent.  The appellant also contended that the respondent had unilaterally varied the contents of the contract of employment.</p> <p> </p> <p>The respondent raised a preliminary point. It was to the effect that in the event that the appellant’s contract was found to have been violated, the appellant’s claims had prescribed in terms of s 94 (1)(b) of the Labour Act [<em>Chapter 28:01</em>] (herein after referred to as ‘the Act’). The respondent also argued that none of the respondent’s contractual benefits were being violated.</p> <p> </p> <p> The arbitrator dismissed the preliminary point. In his award he made the finding that all the claims made by the appellant had been sustained. He thus ordered the respondent to pay the sum of US$197 563.00 for compensation as had been claimed by the appellant. This was to be paid in two equal monthly instalments of US$98 781.50 with the final payment being paid not later than the 1October 2014.</p> <p> </p> <p><strong>APPEAL TO THE LABOUR COURT</strong></p> <p>Dissatisfied with the arbitrator’s ruling and award, the respondent appealed to the Labour Court. A number of grounds of appeal were raised. The court <em>a quo</em> summarized them to amount to:</p> <ol> <li>That prescription applied to the claims and those claims that were older than two years had prescribed in terms of s 94 (2) of the Labour Act [<em>Chapter 28:01</em>].</li> <li>That the contract of employment was varied by the office memorandum and by conduct and that the arbitrator therefore erred at law in his interpretation of the facts.</li> <li>That there was no prejudice to the employee’s remuneration as occasioned by the new method of payment.</li> <li>That the arbitrator had grossly misdirected himself in the relevant findings of fact so much as to amount to a misdirection at law.</li> </ol> <p> </p> <p>After hearing parties, the Labour Court allowed the appeal and set aside the arbitral award. The Labour Court accepted the argument presented by the respondent. It came to the conclusion that once an infraction has occurred and becomes known by the affected party, it prescribes if it is not actioned within two years from the date when the dispute first arose. The court ruled that all the outstanding claims that were more than two years when the claim was instituted by the appellant had prescribed.</p> <p> </p> <p>On whether or not there was unilateral variation of the contract, the Labour Court found that the contract had been unilaterally varied by the respondent. In its judgment the Labour Court stated that although there was unilateral variation of the contract by the respondent, for five years the appellant received his salary without any complaint. By so doing, the appellant, who was a human resources practitioner, had demonstrated by conduct, that he accepted the new salary structures. As a result, the allowances claimed by the respondent were no longer claimable as there was now a new contract in existence.  </p> <p>                       </p> <p>The Labour Court further found no merit in the appellant’s claim which was based on the contention that he had been hiring out his personal motor vehicle to the respondent. The court <em>a quo </em>found that there was no standing agreement between parties to that effect, and therefore, to say that the appellant had hired out his vehicle to the respondent would amount to overstretching the contract.</p> <p> </p> <p><strong>THIS APPEAL</strong></p> <p>The appellant was aggrieved by the judgment of the court <em>a quo</em> and appealed against its decision on the following grounds:</p> <ol> <li>The Labour Court fundamentally misdirected itself on a question of law in failing to find that the claims of the Appellant had not prescribed, they being claims arising from unfair labour practices of a continuing nature covered by s 94 (2) of the Labour Act.</li> <li>The Labour Court further erred on a question of law in finding that the contract of employment between the Appellant and the Respondent had been varied such that the appellant would not be paid the claimed allowances.</li> <li>The Labour Court further erred in law in failing to award the Appellant compensation in respect of the usage of his motor vehicle for the business purposes of the respondent.</li> </ol> <p> </p> <p> At the beginning of the hearing, Mr<em> Musarurwa</em> for the appellant indicated that he was abandoning the 3rd ground of appeal which related to the issue of the motor vehicle. Notably, this ground formed the bulk of the appellant’s claim. He therefore restricted his argument to the first two grounds which relate to the claims for outstanding locality allowance and leave bonus.</p> <p> </p> <p><strong>SUBMISSIONS ON APPEAL</strong></p> <p>Mr<em> Musarurwa’s</em> contention was that the Labour Court erred in ruling that the appellant’s claims had prescribed and he placed reliance on s 94 (2) of the Act. He argued that the unfair labour practice commenced in March 2009 and continued until the matter was brought to the attention of the Labour Officer and to the Labour Court. The gravamen of his argument is that the dispute was of a continuous nature and therefore on the basis of s 94 (2) of the Act no prescription could run.</p> <p> </p> <p>He further contended that the appellant’s rights conferred by the Labour Act were “frozen” during the period of his employment. Therefore, any infractions of these rights could only be actioned after termination of the employment relationship.</p> <p> </p> <p>On variation of the contract of employment, the contention was that the introduction and operation of multi-currencies in February 2009 did not operate to vary the contracts of employment in any way. The respondent remained indebted in respect of the appellant’s allowances. Secondly, the memorandum issued in March 2009 was a unilateral act by one party to a contract of employment and did not have the effect of validly taking away vested rights.</p> <p> </p> <p>Mr<em> Mpofu </em>for the respondent submitted that the rights accorded by the Labour Act are not “frozen” as there are remedies provided by the Act for any infraction of the rights. He described the appellant’s contention as “judicial heresy.”</p> <p> </p> <p> Mr<em> Mpofu</em> further submitted that s 94 of the Labour Act must be read together with s 8 of the same Act. Section 94 limits itself to unfair labour practices and these the appellant had not been able to identify. For this reason, he submitted, the protection of s 94 was not available to the appellant. The kind of infractions that the appellant complained about are infractions that gave him a full and competent cause of action within a period of two years. He submitted that the appellant’s suggestion that the two year period must be counted starting from after the end of the employment relationship is not worthy of any notice due to its frivolity.</p> <p> </p> <p><strong>ISSUES FOR DETERMINATION</strong></p> <p>The issues for determination by this court are:</p> <ol> <li>Whether or not the appellant’s claim had prescribed in terms of s 94 of the Labour Act</li> <li>Whether or not the contract of employment had been varied.</li> </ol> <p> </p> <p><strong>THE LAW</strong></p> <p>Section 94 of the Labour Act provides as follows:</p> <p>“<strong>94 Prescription of disputes</strong></p> <p>(1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless-</p> <p>(a)           it is referred to him; or</p> <p>(b)          has otherwise come to his attention;</p> <p>within two years from the date when the dispute or unfair labour practice first arose.</p> <p>(2) Subsection (1) shall not apply to an unfair labour   practice which is continuing at   the time it is referred to or comes to the attention of a labour officer.”</p> <p> </p> <p> </p> <p> </p> <p>A literal reading of the above provision is that adjudication of any dispute of unfair labour practice is restricted to disputes that will have occurred within two years from the date when the dispute or unfair labour practice first arose. However the exception to that rule is that, if an unfair labour practice is continuing at the time it is referred, or comes to the attention of the labour officer, then the two year prescription period in subs (1) does not apply.</p> <p> </p> <p>The appellant’s submission is that when he first complained of the non-payment of the locality allowance and motor vehicle allowance, the unfair labour practice was ‘continuing’ and therefore none of his claims had prescribed.</p> <p> </p> <p>The term “cause of action” was defined in <em>Peebles v Dairiboard (Pvt) </em>Ltd 1999 (1) ZLR 41 (H) at 54E – F wherein MALABA J (as he then was) stated:</p> <p>“A cause of action is defined by Lord Esher MR in <em>Read v Brown</em> (1888) 22 QB 131 as every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court.”</p> <p> </p> <p>In other words, a cause of action arises when there is an entire set of facts which entitle one to make a claim. In light of that, <em>in casu</em> a new cause of action would have arisen every month when the respondent failed to pay the appellant’s locality allowance and every year when it failed to pay the leave bonus. Whenever an arrear of locality allowance accumulated, that would have constituted an entire set of facts which could give rise to a cause of action and which would have entitled the appellant to successfully file a claim against the respondent. Thus, the appellant would have had a legitimate cause to raise a complaint with the Labour Officer each time the allowances were not paid in terms of the contract and each time when the annual bonus was not paid in terms of the contract. Each non-payment on its own would be enough to constitute a cause of action which entitled the appellant to file a claim.</p> <p> </p> <p>Whenever there was non-payment of the appellant’s perceived dues, that would be a complete infraction. For that reason, it cannot be said that the unfair labour practice would have been continuous in nature and therefore not subject to prescription. A continuous unfair labour practice was outlined in the South African judgment of <em>National Home Builders Registration Council v Nehawu obo Siza Nghulele &amp; 2 Ors </em>(JR 2020/13) 2016 ZALCJHB 209 wherein it was stated:</p> <p>“[7] In respect of the first point, it was held in SABC Ltd v CCMA &amp; Others that: “While an unfair labour practice/unfair discrimination may consist of a single act it may also be continuous, continuing or repetitive. For example, where an employer selects an employee on the basis of race to be awarded a once-off bonus this could possibly constitute a single act of unfair labour practice or unfair discrimination because like a dismissal the unfair labour practice commences and ends at a given time. But, where an employer decides to pay its employees who are similarly qualified with similar experience performing similar duties different wages based on race or any other arbitrary grounds, then notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive. The discrimination, in the latter case, has no end and is, therefore, ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other he is evincing continued discrimination.” Although in this instance, the employee’s claim to higher grading and remuneration was squarely based on the applicability of the applicant’s Career Path and Retention Strategy for Technical Staff policy, the principle of the continuous nature of the alleged unfair labour practice in my view is indistinguishable from that in the SABC case. Accordingly, he was entitled to raise the claim not only within 90 days of not receiving the advancement but for so long as he was denied it. Consequently, the first in limine point must fail.”</p> <p> </p> <p> </p> <p>See also <em>South African Broadcasting Corporation Ltd v The Commission for Conciliation Mediation and Arbitration &amp; 2 Ors</em> (JA 36/07) [2009] ZALAC 13; [2010] 3 BLLR 251 (LAC).</p> <p><em>In casu </em>the claims would not have been dependent on each other so as to render them to be continuous in nature.</p> <p>  </p> <p>                        The cause(s) of action in the present matter, if existent, would have been subject to prescription just like any other debt. If a claim was not made within the defined time lines, it would have prescribed. The appellant would have had a complete cause of action entitling him to make a claim whenever there was non-payment of allowances and bonus. There was no reason for the appellant to wait until there was termination of the employment relationship. The Labour Act is not frozen during the subsistence of an employment relationship as was stated by the appellant. A breach of rights conferred by the Labour Act can be remedied during the subsistence of the employment relationship and within the two years from the date of commencement of the unfair labour practice.</p> <p> </p> <p>The claim against the respondent is that it did not pay locality allowances and leave bonuses since March 2009. The appellant only filed his claim in June 2014. In light of the principles discussed above, each of the monthly locality allowance arrears and leave bonus payments would have been subject to a prescription period of two years.     </p> <p> </p> <p>Mr <em>Musarurwa</em> for the appellant submitted before us that this court could consider the claims that were less than two years old and had thus, according to him, not prescribed as at the time of the raising of the claims in June 2014. In response thereto Mr <em>Mpofu</em> for the respondent submitted that the court could not do so as that was never the appellant’s case in any of the proceedings <em>a quo</em>, whether before the arbitrator or the Labour Court. It is trite that a litigant cannot argue on appeal a case different to that presented in the proceedings <em>a quo</em>. He further submitted that the submission by Mr <em>Musarurwa</em> was made on the mistaken assumption that the variation of the contract of employment was unlawful. The contract having been varied five years earlier, there was no basis for the claims made for the allowances. In any event, by the time that he raised the complaint with the labour officer, the two year prescription period had long since elapsed for all the claims.</p> <p>   </p> <p>In our view, the Labour Court was therefore correct in holding that once an infraction is complete and is known, it prescribes within two years if it is not actioned within the given period.</p> <p> </p> <p>However, if the contract was varied as alleged by the respondent, there can be no debate or question of a continuing unfair labour practice at the time that the appellant raised his complaint, as he would have had no cause of action anyway by virtue of the variation of the contract in terms of which variation such allowances were no longer part of his contract. He could not, five years later, claim that the contract was unilaterally varied when for five (5) years before then he acquiesced with the implementation of the new conditions and quietly accepted remuneration on the new terms without raising any complaint.</p> <p> </p> <ol> <li><strong>Whether or not the contract of employment was varied. </strong></li> </ol> <p>The question must of necessity therefore be answered whether or not the contract was in fact varied unilaterally.</p> <p> </p> <p>     The appellant submitted that the change in currency following the adoption of the use of the United States dollars did not alter the contract of employment. He further contended that he was still entitled to the car loan as per the contract of employment which was operative during the time when Zimbabwean dollar was in use. Mr<em> Mpofu </em>on the other hand submitted that the local dollar contract could not have had its terms transposed into the US Dollar period. It was his contention that in order to successfully advance the contention that there had been variation of the contract, the appellant had to first identify the contract expressed in United States Dollars, set out its terms and then show how it was unlawfully varied by the respondent.</p> <p> </p> <p> As already mentioned earlier, the respondent issued out an internal memorandum on 21 March 2009 following the adoption of the United States dollar currency. This memorandum had the effect of altering the appellant’s contract of employment. Following the memorandum, the appellant, who was the Human Resources officer, accepted his new salary in terms of the memorandum. He was receiving a salary in terms of the memorandum and for the five years, he never raised any complaint nor did he challenge the new salary scale.</p> <p> </p> <p>It is trite that consent can either be express or implied. In the case of <em>Smith v Hughes </em>L.R 6 Q.B 597 at p 607, it was stated that:</p> <p>“If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.”</p> <p> </p> <p>For five years the respondent accepted a salary, in terms of a memorandum which had no provision for any allowances. By such conduct he accepted the variation of the terms of his contract of employment. If he genuinely felt that the memorandum breached his contractual rights, he ought not to have accepted the salaries and ought to have mounted his challenge at the pertinent time or within the permitted period. In the absence of any challenge to the variation of the contract, it is clear that after variation of the contract of employment, there was acquiescence by the appellant.</p> <p> </p> <p>If there was acceptance of the variation, as there was, there was no claim to be prescribed. It follows that by his conduct, the appellant impliedly consented to the variation of his contract. In such circumstances, he could not claim any benefits flowing out of the contract that had been varied. The court <em>a quo</em> thus correctly found that the contract of employment was varied with the consent of the appellant and therefore the allowances claimed by the appellant were no longer claimable under the contract ushered in by the memorandum.</p> <p> </p> <p> It is for these reasons that we found that the appeal had no merit and proceeded to grant the order that we did as recorded at the beginning of this judgment.</p> <p> </p> <p> </p> <p><strong>GOWORA JA                </strong>I agree</p> <p> </p> <p> </p> <p><strong>PATEL JA                     </strong>I agree</p> <p> </p> <p> </p> <p><em>Saratoga Makausi Law Chambers, </em>appellant’s legal practitioners</p> <p><em>Gill, Godlonton &amp; Gerrans,</em> respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/13/2021-zwsc-13.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38585">2021-zwsc-13.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/13/2021-zwsc-13.pdf" type="application/pdf; length=455802">2021-zwsc-13.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/appeal-employment">Appeal (EMPLOYMENT)</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> Tue, 08 Jun 2021 08:01:01 +0000 Sandra 10021 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 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 S v T N Bakery (HH 265-18, CA 553/16) [2018] ZWHHC 265 (23 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/265 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>T N BAKERY</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>HUNGWE &amp; MUSHORE JJ</p> <p>HARARE, 5 October 2017 &amp; 23 May 2018</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p><em>I.M.T. Rujuva</em>, for the appellant</p> <p><em>T.</em> <em>Nyahunzvi,</em> for the State</p> <p> </p> <p>            MUSHORE J: The complainant, one Edrine Mutizwa, was once employed by the appellant company as a sales person. He began working for the appellant in January 2012 earning US$255-00 per month. In March 2012, complainant became a permanent employee. Complainant stopped working for the appellant on the 18th July 2015 when the appellant company closed down. The appellant owed complainant salary and other benefits at the time that complainant left the appellant. Complainant experienced difficulties in attempting to recover the money which appellant owed him leading to the complainant filing a complaint in the Labour Court. Eventually the parties went before a labour officer on the 18th November 2015. The labour officer who determined complainant’s claim, ultimately managed to get the parties to reach a settlement as follows:-</p> <p>            Record page 27</p> <p><em>            “</em>Concerning: Alleged underpayment of wages and non-payment of wages.</p> <p>We resolved by agreement of the parties on the <strong>09/03/16</strong> and further that the terms of agreement are as follows: <strong>The parties agreed that the complainant will be paid a total of US$ 6152-57 as follows $2,800-00 will be offset by 5 Marvel Double Beds which be (sic) delivered on or before 23 April 2016 and the remaining $3300-00 will be paid by instalments of $305 monthly starting on the 29th April 2016 to 28th February 2017 until the mount is finished.”</strong></p> <p>Thereafter, according to the State Outline, appellant reneged on its promise, causing the complainant to return to the labour officer. Thus on the 13th June 2016, the labour officer issued a prosecution letter addressed to the Officer in Charge,  ZRP Gweru Central suggesting that the appellant be prosecuted in terms of s 13 (2) of the Labour Act [<em>Chapter 28:01</em>] for withholding and unreasonably delaying payment of the complainant’s wages without the Minister’s permission. Section 13 (2) reads as follows:</p> <p>“(2) Any employer who without the Minister’s permission withholds or unreasonably delays the payment of any  wages  or  benefits  owed  in  terms  of  subsection  (1) shall  be  guilty  of  an  offence  and  liable  to  a  fine  not exceeding  level  seven or  to  imprisonment  for  a  period  not  exceeding  two  years  or to  both  such fine and  such imprisonment.”</p> <p>Accordingly complainant proceeded with the prosecution in the matter on the basis that appellant had breached s 13 (2) of the Labour Act. The court found in favour of the complainant and convicted appellant and sentenced him to pay-</p> <ol> <li>A fine of $400-00 in default of payment of which a warrant of execution against appellant’s property be issued forthwith.</li> <li>In addition appellant was ordered by the court to pay complainant $6152-00 by the 11th August 2016 failing which another warrant of execution would be issued for the execution of appellant’s property in order to recover the said sum of money ($6152-00).</li> </ol> <p>            In the present appeal, appellant insists that the employer/employee relationship no longer existed because of the settlement agreement and that therefore he should not have been convicted of the abovementioned offence. The basis of appellant’s argument is that the relationship between the parties has mutated to that of debtor and creditor thus the prosecution in terms of the Labour Act was invalid. Appellant submits that when the parties came to an agreement before the labour officer, they had come to make a compromise agreement and that such a compromise agreement reflects their debtor/creditor relationship.</p> <p>            With due deference, the agreement entered into on the 9th March 2016 does not constitute a compromise agreement. A compromise agreement is “<em>an agreement between opposing parties to settle a dispute or reach a settlement in which each party gives ground, rather than continue the dispute or go to trial” or “to reach a settlement in which each party gives up some demands”</em></p> <p>            The facts show that in the 9th March 2016 agreement; complainant did not give ground at all on his claim. He simply accepted an alternative mode of payment for part of the appellant’s indebtedness to him i.e. 5 beds in lieu of cash in the amount of $2,800-00, without accepting less than was due to him. The sum owed remained at $6,152-00. The labour officer’s use of the word “offset’ bears this out. A set off is defined as “a<em> set-off is an equitable defence to the whole or to a portion of the plaintiff’s claim”</em>. It is a tender or compensation for the original debtor. Because the set-off pertains to the original debt, the relationship between complainant and appellant has not changed and remains to be that of employer/employee. The payment due to the complainant, which payment appellant reneged on is for payment of salary and benefits arising from his employment with the appellant.</p> <p>            The settlement agreement which was presided over by the labour officer can be compared to a Deed of Settlement in a civil matter. The Deed of Settlement is not a compromise but is merely time-to-pay. Thus the relationship between complainant and appellant still being that of employer/employee makes the withholding of complainant’s salary by the appellant a prosecutable offence in terms of s 13 (2) of the Labour Act. Complainant was fully within his rights to have taken up the prosecution in this matter, and the court <em>a quo</em> properly convicted the appellant of the offence in question.</p> <p>            As far as the appeal against sentence is concerned, it is not based upon a valid defence. The <em>‘harsh economic environment’</em> is not a valid excuse to liability. No meaningful argument has been advanced by the appellant in challenging the sentence imposed. Certainly the sentence does not induce a sense of shock as it falls well within the guidelines.</p> <p>            Accordingly the appeals against conviction and sentence are without merit.</p> <p>            In the result, we order as follows:</p> <p>            <em>“Both appeals between conviction and sentence are dismissed”. </em></p> <p> </p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p><em>Dururu &amp; Associates</em>, appellant’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/harare-high-court/2018/265/2018-zwhhc-265.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20690">2018-zwhhc-265.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/265/2018-zwhhc-265.pdf" type="application/pdf; length=395343">2018-zwhhc-265.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/employee">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/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> Wed, 20 Jun 2018 08:12:11 +0000 admin 8930 at https://old.zimlii.org ZIMRA v Mudzimuwaona (SC 4/18, Civil Appeal No. 176/13) [2018] ZWSC 4 (28 July 2014); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2014/4-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (3)</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>CHESTER     MUDZIMUWAONA</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, GOWORA JA &amp; MUTEMA AJA</strong></p> <p><strong>BULAWAYO, </strong>28 JULY 2014</p> <p><em>T. Magwaliba</em>, for the appellant                                                                                         </p> <p><em>C. Mucheche</em>, for the first respondent</p> <p><strong>                        GOWORA JA</strong>:  This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course. The following are the reasons for the order.</p> <p>                        The facts arising in this matter are that in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:</p> <p>“upon successful completion of the probation period the employment contract shall run for a further period of 24 (twenty-four) months after which the authority , may at its sole discretion offer you permanent employment on such terms and conditions as determined by it at the time.”</p> <p>                        The literal meaning of that clause is that the respondent’s contract was subject, first to the successful completion of the probation period and then would terminate at the end of 36 month. </p> <p>                        In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment. He was arraigned before a disciplinary committee and was found guilty of both charges. He was as a consequence dismissed from employment. He appealed to the appeals committee without success.</p> <p>                        The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court <em>a quo</em> ordered the appellant to reinstate the respondent without loss of salary or benefits and, in the event that reinstatement was no longer tenable, to pay damages in <em>lieu</em> of reinstatement. This decision was not appealed against. Instead, the parties decided to negotiate the <em>quantum</em> of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification. He claimed that when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee. The appellant opposed the quantification on the basis that the respondent was employed on a fixed term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract. The Labour Court ruled in favour of the respondent and ordered the appellant to pay:</p> <ul> <li>US$ 19 740.16 as back-pay and benefits</li> <li>Twelve (12) months’ salary that the respondent would have earned in August 2011 minus US$150.00 earned by the respondent per month for a period of twelve months.</li> </ul> <p>The appellant was aggrieved by the decision and with the leave of this court has appealed the order of the court <em>a quo</em>. It is criticized for the following reasons:</p> <ul> <li> </li> </ul> <p>-           failing to give proper weight to the fact that when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.</p> <ul> <li> </li> <li> </li> </ul> <p>-           failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.</p> <ul> <li> </li> </ul> <p>-           in failing to deduct the US$150.00 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.</p> <ul> <li> </li> </ul> <p>-           in rejecting the evidence of the appellant’s expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.</p> <p>                        The respondent raised three preliminary objections to the appeal. The objections were respectively that, the notice of appeal did not state the correct date of judgment, the grounds of appeal were not clear and concise and, lastly, that the grounds of appeal did not raise questions of law. The respondent abandoned the first objection after conceding that the notice of appeal in point of fact reflected the correct date of judgment.</p> <p>                        The other two points were dismissed by the court.  Quite apart from the fact that in mounting the objections, the respondent sought to rely on the Supreme Court Rules, 1964 which are not applicable to appeals from the Labour Court, in attacking the grounds of appeal, the point that the grounds of appeal were not clear and concise had no merit. The respondent was unable to show to this court in what way the grounds of appeal were not clear and concise. The grounds set out by the appellant may have been inelegantly drafted but they articulate the basis upon which the appeal is founded.</p> <p>                        Regarding the point taken that the grounds of appeal were not on a question of law, the court was of the view that the point was improperly taken. The issue of what is a question of law has been addressed in a plethora of cases. See for example, <em>Muzuva v United Bottlers (Pvt) Ltd </em>1994 (1) ZLR 217 (S) and <em>Hama v National Railways of Zimbabwe </em>1996 (1) ZLR 664 (S).</p> <p>                        The respondent submitted that the appellant should have expressly stated in its grounds of appeal that the factual findings of the court <em>a quo</em> are gross as to amount to a question of law.  In <em>Reserve Bank of Zimbabwe v Granger and Anor</em> SC 34/01, MUCHECHETERE JA (as he then was), at page 5 to 6 of the cyclostyled judgment, said:</p> <p>“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”</p> <p>These remarks were qualified by GARWE JA in <em>Zvokusekwa v Biita Rural District Council</em> SC-44-15 as follows:</p> <p>“In my view, the remarks made in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think, be guided by the substance of the grounds of appeal and not the form.  Legal practitioners often exhibit different styles in formulating such grounds.  What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.” </p> <p>                        The essential principle outlined above is that regard must be had to the substance of a ground of appeal as opposed to its form in order to determine whether it raises a question of law. The court was of the view that the grounds of appeal raised by the appellant in essence attacked the alleged failure by the court <em>a quo</em> to consider relevant facts which failure led to an error at law. The grounds complied with the requirements of s 92F of the Labour Act [<em>Chapter 28:01</em>] and therefore the point <em>in limine</em> was dismissed.</p> <p>                        On the merits the issues which are pertinent in the determination of the appeal are the following:</p> <ul> <li>Whether or not the court <em>a quo</em> correctly applied the principles on fixed term contracts;</li> </ul> <p>(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;</p> <ul> <li>Whether or not the court drew a distinction between a permanent employee and one on a fixed term contract in its quantification of damages; and</li> <li>Whether or not the court grossly misdirected itself in respect of the factual findings it arrived at on the evidence presented.</li> </ul> <p>                        It was the appellant’s contention that the court <em>a quo</em> erred in law by quantifying damages as if the respondent was a permanent employee prior to his dismissal, yet it is clear from the contract of employment that he was on a fixed term contract. One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in <em>Gauntlet Security Services v Leonard</em> 1997 (1) ZLR 583 (S) in which he said:</p> <p>“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”</p> <p>The remarks by the learned judge show that in assessing damages for unlawful termination of an employment contract,  the court has to place the employee in the position he would have been save for the premature termination of the contract. This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract . This position was aptly captured in <em>Goedhals v Graaff-Reinet Municipality</em> 1955 (3) S.A 482 in which HALL J, at 487C-E said;</p> <p>“The general principle upon which damages are to be assessed was laid in <em>Victoria Falls and Transvaal and</em> <em>Power Co. Ltd v Consolidated Langlaate Mines Ltd</em> 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case.”</p> <p>                        What is derived therein is that damages are awarded for what can be termed as expectation loss. There was no dispute between the parties regarding the nature of the respondent’s contract of employment with the appellant. Thus his status was never in issue. His was a fixed term contract. Further, it was not in dispute that when he was dismissed his contract only had six months before it was due to expire.</p> <p>                        Mr <em>Mucheche</em> conceded, properly in my view, that a distinction had to be drawn between reinstatement to a contract without limit of time and one that was of fixed duration. He however, detracted from this concession by submitting that there should be no distinction between the two when considering consequential damages arising out an unlawful termination of a contract of employment.</p> <p>                        <em>In casu</em>, the contract of employment signed by the parties as outlined above, was for a duration of 36 months, which point was conceded by the respondent.  This means that the relationship between the parties was expected to expire on the last day of the 36th month. The appellant submitted that based on the principles of law that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract. This is the correct position.  Damages for unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to unexpired period of that contract. This position is fortified in <em>Myers v Abramson</em> 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:</p> <p>“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.’ (at 127 D-E).”</p> <p>The standard in <em>Myers v Abramson</em> intimates that an employee will be entitled to his proven actual damages, which is the loss of income for the unexpired period. The court <em>a quo</em> awarded the respondent damages in <em>lieu</em> of reinstatement for a period of 12 months yet the remaining period was six months. The court <em>a quo</em> failed to take cognisance of the fact that damages in lieu of reinstatement, are in fact, a substitute of reinstatement. The question that ought to have exercised its mind is; if the respondent were to be reinstated, what would be the period of his engagement in terms of the contract? The answer is obviously six months because it is clearly stated in the contract that it was for the duration of 36 months.</p> <p>The court also accepted the appellant’s reasoning that the court <em>a quo</em> in making the order it made, actually created a new contract for the parties. That was a violation of the principle of sanctity of contracts. In <em>Book v Davidson</em> 1988(1) ZLR 365(S), the sanctity of contracts was discussed as follows:</p> <p>“There is however another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts ...  If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract ... to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”</p> <p>The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it.</p> <p>                        The dispute between the parties does not and cannot extend beyond the life span of the contract. Clearly, the court a quo misdirected itself in extending the dispute beyond the life of the contract. If a contract is for a fixed term it automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. So too do any obligations entered into for performance by the parties to the contract. By accepting that the dispute of the parties did not extend beyond the life of the contract, Mr <em>Mucheche</em> was in effect conceding that there was no place for a claim for consequential damages. Such claim could only properly arise if there was a legitimate expectation that the respondent would be offered permanent employment, which was never the contention.</p> <p>                        What is at issue is the computation of damages for the unexpired period of the contract. In terms of clause 3.1 of the contract the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position. When the respondent was dismissed the appellant had not exercised that discretion. As a consequence the court a quo ought to have given effect to that clause. Its failure to do so meant that it was extending the period of the contract on its own volition contrary to the wishes of the parties as expressed in the contract. It was therefore a serious misdirection on its part to award damages for a period beyond the date of termination as stipulated in the contract. The court a quo completely ignored the agreement that had been entered into between the parties which stipulated the duration of the relationship between the parties.</p> <p>It should also be noted that in the absence of a finding that the respondent had a legitimate expectation that he would be given a permanent contract, there was no justification for the method it used to quantify damages. The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 and failed. He would only be competent to be employed on a permanent basis after successfully completing the training. Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:</p> <p>A Revenue Trainee who fails to successfully complete level 2 and has a negative mentor’s report will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject<em>.</em></p> <p>He did not deny that he had rewritten the required examinations and that he had failed a second time. His explanation upon being shown the examination scripts was that he had forgotten having written the said examinations. Against these clear admissions it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them. From what is stipulated in the policy, it is clear that the respondent’s employment would have been terminated at the end of the 36 months because he had failed the examinations.</p> <p> </p> <p>There was no basis upon which the respondent could have at law been entitled to more than what he would have earned during the unexpired period of his contract with the appellant and thus there was no legal basis upon which the court <em>a quo</em> made the order it did. It is for the above reasons that we allowed the appeal and made the following order:</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The order of the Labour Court is set aside and the following is substituted:</li> </ol> <ul> <li>The appellant shall pay the respondent the amount of US$1 470.00 as back-pay and benefits less US$900.00 earned by the respondent from informal jobs over a period of six months.</li> </ul> <p><strong>CHIDYAUSIKU CJ (Deceased)                  </strong>I agree</p> <p><strong>MUTEMA AJA         (Deceased)                  </strong>I agree</p> </div></div></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/2014/4/2018-zwsc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41108">2018-zwsc-4.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/2014/4/2018-zwsc-4.pdf" type="application/pdf; length=131172">2018-zwsc-4.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/termination">Termination</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fixed-term-contract">fixed term contract</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/dismissal">dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lawful-dismissal">Lawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/salaries-and-wages">Salaries and wages</a></li></ul></span> Thu, 26 Apr 2018 09:37:29 +0000 admin 8763 at https://old.zimlii.org