Meaning of words https://old.zimlii.org/taxonomy/term/10717/all en S v Chidhobera & Anor (HH 692-20, CRB CHG 807/19) [2020] ZWHHC 692 (27 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/692 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>THE STATE</p> <p>versus</p> <p>NAISON CHIDHOBERA</p> <p>and</p> <p>EMMANUEL NGORIMA</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 27 October 2020</p> <p> </p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>            CHITAPI J: The proceedings in this matter were referred for review by the learned regional magistrate following scrutiny. The accused persons were jointly charged with contravening s 59 (2) (a) of the Parks and Wildlife Act, [<em>Chapter 20:14</em>] which creates the offence of “hunting any animal on any land.” The accused persons not being permit holders in terms of the Act, hunted for and killed two porcupines within Virginia Farm, Chegutu. They pleaded guilty to the charge and were duly convicted.</p> <p>            Following their conviction, the learned magistrate sentenced them to each pay a fine of $150.00 in default thereof to serve 2 months imprisonment. An additional 6 months imprisonment wholly suspended for 3 years on condition that they do not commit an offence involving contravention of the Parks and Wildlife Act was further imposed.</p> <p>            The learned regional magistrate queried the fact that the learned trial magistrate did not order compensation in terms of s 104 of the Parks and Wildlife Act. The learned trial magistrate submitted that although she took note of the query by the learned regional magistrate, she laboured under the belief that s 104 was permissive or directory and that ordering compensation was in the discretion of the court. She reasoned that the word “may” in the heading to s 104 meant that the court has a discretion to either order compensation or refrain from doing so. Section 104 is couched as follows—</p> <p><strong> “104 Court may order payment for hunting of animal</strong></p> <p>The quoted text is just a subheading. Subsection (1) to (4) of the Parks and Wildlife Act provides as follows—</p> <p>(1) Where a person is convicted of an offence in terms of this Act involving the hunting of any animal, the picking of any plant or the catching of any fish and—</p> <p>(<em>a</em>) the person convicted has appropriated or disposed of any animal, plant or fish which forms the subject of the charge and which has not been restored to the land on which it was hunted or picked or the water in which it was caught, as the case may be; or</p> <p>(<em>b</em>) the commission of the offence has caused the death of an animal or fish or the destruction of a plant or has made it necessary or expedient for an animal or fish to be killed or a plant to be destroyed; the court shall, in addition to any penalty which it may impose on the person convicted, order him to pay—</p> <p>(i) in the case of an animal, plant or fish which was hunted, picked or caught in a national park,</p> <p>botanical reserve, botanical garden. sanctuary, safari area or recreational park, or of any specially protected animal, to the Authority;</p> <p>(ii) in any other case, to the appropriate authority for the land on which the animal was hunted or the plant was picked, or for the water in which the fish was caught;</p> <p>such amount as may be specified in respect of the animal, plant or fish concerned in terms of subsection (2).</p> <p>[Subsection amended by Act 19 of 2001]</p> <p>(2) The Minister may on the recommendation of, or after consultation with, the Authority, by notice in a statutory instrument, specify, in respect of different species of animals or plants and in respect of fish, the amount</p> <p>to be imposed in terms of an order made in terms of subsection (1) and may in like manner amend or revoke any such notice.</p> <p>[Subsection amended by Act 19 of 2001]</p> <p>(3) The provisions of sections 348 and 349 of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]</p> <p>shall apply, <em>mutatis mutandis</em>, in relation to the amount specified in an order made in terms of subsection (1) as if such amount were a fine referred to in those sections and any amount so recovered shall, in accordance with the order, be paid to the Authority or to the appropriate authority for the land on which the animal was hunted or the plant was picked or for the water in which the fist was caught, as the case may be:</p> <p>Provided that, except in the case of the Authority, the appropriate authority shall give security <em>de restituendo</em>in case the judgment of the court which made the order is reversed on appeal or review.</p> <p>[Subsection amended by Act 19 of 2001]</p> <p>(4) Where an order is made in terms of subsection (1) on two or more persons, the liability thereunder shall be joint and several unless the court, in its order, apportions the amount which each such person shall be required to pay.”</p> <p> </p> <p>            The provisions of subs (1) of s 104 are clear that the court shall order payment of compensation where the circumstances described therein are proved or established. The amount of compensation is determined by reference to the Statutory Instrument referred to in subs (5) (<em>supra</em>).</p> <p>            The learned trial magistrate mistakenly considered the word “may” in the subheading to s 104 as giving her discretion to order or not order compensation. Section 7 of the Interpretation Act, [<em>Chapter 1:01</em>] provides as follows-</p> <p>            “In an enactment—</p> <ol> <li>Headings and marginal notes and other marginal reference therein to other enactments; and</li> <li>Notes, tables, indexes and explanatory references inserted therein as part of any compilation or revision ... shall form no part of the enactment and shall be deemed to have been inserted for convenience of reference only.”  </li> </ol> <p> </p> <p>Had the learned trial magistrate applied her mind to the whole of s 104 aforesaid as opposed to the subheading, she would have noted that it is compulsory or peremptory to order compensation in circumstances set out in subs 1 of s 104. I must caution that statutory offences are not so easy to determine. A lot goes into it and the judicial officer dealing with statutory offenses should always be mindful of the basic rules of statutory interpretation.</p> <p>The last issue is to determine what should be done about the learned trial magistrate’s omission. It does not appear from the surrounding facts that the accused persons are easily locatable so that the compensation order may be imposed. The learned trial magistrate must however be properly guided for the future when dealing with s 104 of the Parks &amp; Wildlife Act. The appropriate course to adopt in this matter is to find that the proceedings are not in accordance with real and substantial justice owing to the impugned sentence. I accordingly withhold my certificate.</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/2020/692/2020-zwhhc-692.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19411">2020-zwhhc-692.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/2020/692/2020-zwhhc-692.pdf" type="application/pdf; length=99543">2020-zwhhc-692.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/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ambiguity-interpretation">Ambiguity (INTERPRETATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/meaning-words">Meaning of words</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/1975/14">Parks and Wild Life Act [Chapter 20:14] </a></div><div class="field-item odd"><a href="/zw/legislation/act/1962/1">Interpretation Act [Chapter 1:01]</a></div></div></div> Mon, 23 Nov 2020 13:00:44 +0000 Sandra 9939 at https://old.zimlii.org S v Komichi (HH 369-20, APP 29/19 X Ref CRB 9633/19) [2020] ZWHHC 369 (08 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/369 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> MORGAN KOMICHI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA &amp; MUZOFA JJ</p> <p>HARARE,10 February &amp; 8 June 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p><em>O. Shava,</em> for the appellant</p> <p><em>A. Muziwi,</em> for respondent</p> <p> </p> <p> </p> <p>MUZOFA J: On 2 August 2018 the Harare International Conference Centre, (the HICC) was the location for the announcement of the   30 July 2018 Presidential Election results. The Zimbabwe Electoral Commission (ZEC) has the prerogative to announce the results. The HICC was a hive of activity with all and sundry anxious to hear the results. The specific room designated for the purpose was full of people from different political parties, journalists and other accredited people. The process was that election results would be sent from different provinces to the HICC. After some verifications ZEC officials would make the announcements. It is not in dispute that at around 2245 hours the ZEC officials took leave of their seats and retired to a different room awaiting results from one province. While they were on adjournment, the appellant walked to the podium reserved for the ZEC officials for purposes of announcing the results and announced that the Movement for Democratic Change Alliance (MDC-A) rejected the results for noncompliance with due process. He alleged that the MDC Alliance agents had not verified the results. The appellant was immediately arrested.</p> <p>For his excursion, the appellant was subsequently charged for contravening s 186 of the Electoral Act [<em>Chapter 2:13</em>] (hereinafter referred to as the Act) for unlawfully and wilfully interrupting, disrupting and disturbing the proceedings of the announcement of the Presidential election results. He denied the charge. Despite that, after a trial he was convicted and sentenced to pay a fine of $200 in default of payment 2 months imprisonment, in addition 3 months’ imprisonment was wholly suspended for 5 years on condition he did not commit a similar offence involving a contravention of s 186 of the Electoral Act for which upon conviction a sentence of imprisonment without the option of a fine would be imposed.</p> <p>Dissatisfied with the conviction the appellant noted an appeal. The grounds of appeal were set out as follows;</p> <ol> <li>The learned magistrate <em>a quo</em>, having properly made a finding that when the appellant went to the podium, the Zimbabwe Electoral Commission officials had taken an adjournment, erred at law in finding him guilty as charged when he could not, legally and factually have interrupted, disturbed or disrupted any proceedings during such an adjournment period.</li> <li>The learned magistrate <em>a quo</em> erred at law in misinterpreting s 186 of the Electoral Act, in particular by reading the term “proceedings” out of context or contrary to the rules of statutory interpretation, thereby convicting the appellant on the basis of a conduct which is not penalized under the said section.</li> </ol> <p>            From the two grounds, the appeal turns on the interpretation of the words used in the section creating the offence. In other words the issue for determination is whether the ZEC proceedings were still in progress such that the appellant’s conduct disrupted, interrupted or disturbed them.</p> <p>            In coming to its decision, the trial court was very methodical. Having established the facts, it defined the words creating the offence. It set out the meaning of disrupt, obstruct and disturb which words generally imply some hindrance in the flow of something. Thereafter it noted that the Act did not define the term  ‘proceedings’ and the trial court opted to find the definition from <em>Black’s Law Dictionary</em> which defines proceedings as including ‘all acts and events between the time of commencement and the entry of judgment’. The trial court concluded that since the ZEC officials were still to announce results from one province the proceedings were still in progress. To that extent the appellant’s conduct disturbed or disrupted the proceedings that had not fully terminated.</p> <p> <em>Mr Shava</em> for the appellant submitted that the words   used in the Act, to disturb, interrupt and obstruct envisage an interference with a process that is ongoing. The words cannot and should not be taken to apply to situations where the process is not ongoing. There must be some prevention or hindrance of the process. In this case ZEC had taken an adjournment, no proceedings were taking place therefore factually the appellant could not have interfered with proceedings. Conversely there was no evidence to show that during such adjournment ZEC was hindered in its work. I pause here to comment that the offence is not confined to ZEC but to any proceedings taken in connection with an election. He argued that the trial court erred by defining ZEC proceedings to include the adjournment. Relying on the principles of interpretation enunciated in <em>Anna Colleta Chihava and Others v The Provincial Magistrate Francis Mapfumo<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1"><strong>[1]</strong></a> </em>he urged this court to apply the golden rule in coming to the true intention of the legislature by taking the words used in their context.</p> <p>The respondent opposed the appeal .It was submitted that the trial court was correct in its approach to use the ordinary meaning of the word ‘proceedings’ in  <em>Blacks’ Law Dictionary.</em> The meaning of a word should be ascertained from its dictionary meaning taken in its context. For this submission the respondent relied on the authority of <em>Mavengenge v Minister of Justice, Legal and Parliamentary Affairs and Others<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><strong>[2]</strong></a> </em> and <em>Endevour Foundation and Another v Commissioner of Taxes</em>.<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a> Further to that it was submitted that since the ZEC officials were still to announce some results, the proceedings had not been terminated. The appellant did not have authority to make any announcement on the day.</p> <p>            Where the interpretation of a statute is in issue, the starting point is that words should be given their ordinary grammatical meaning unless this would result in some absurdity, repugnancy or inconsistency with the statute. Both parties properly set out the law in this aspect, they diverge in its application to the facts of this case. The <em>Chihava</em> case <em>supra </em>relied on by the appellant   succinctly sets out the approach at 35F -36 E as follows;</p> <p>“The starting point in relation to the interpretation of statutes generally would be what is termed ‘the golden rule’ of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand &amp; Others v Bryant 1995 (3) SA 761 (A) at 7;</p> <p>‘According to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, <strong>unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument</strong>. In his book ‘Principles of Legal Interpretation - Statutes, Contracts and Wills’ 1st Ed. At page 57, E A Kellaway echoes this statement as follows:</p> <p>‘The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is <em>‘interpretatio quae parit absurdum, non est admittenda)” </em>(See among other authorities, Exparte Fourie 1962 (3) SA 614 (O); <em>S v Nyathi </em>1978 (2) SA 20 (B) and <em>Canca v Mount Free Municipality</em> 1984 (2) SA 870 (TK) 833)’</p> <p> </p> <p>The learned author, at page 62, further states:                                                    </p> <p> </p> <p>“Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the <strong>anomalies which flow therefrom that the literal meaning could not have been intended by the legislature”</strong> (<em>my emphasis</em>)</p> <p> </p> <p>The Court at page 37A-D summed up the approach and said-</p> <p>It is a sound principle of the law that when interpreting a statutory provision, the court must bear in mind that the legislature does not intend irrational or unreasonable results. In discussing the import of absurdity Devenish<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a> opines that the absurdity must be obvious, it must lie in the words of the statute. This approach has been partially codified<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>.  </p> <p>In coming to the true meaning of the words forming the basis of this appeal the court should consider the purpose of the Act. One of its purposes is ‘to provide for offences and penalties and for the prevention of electoral malpractices ’.The offences created by the Act are therefore connected and incidental to elections. It is trite that an election is not an event but a process. The offences therefore relate to the processes associated with elections and the announcement of electoral results is part of this process.</p> <p>If the restrictive interpretation advanced for the appellant were to be accepted, it would certainly result in an absurdity that the legislature did not intend. Simply put the appellant’s interpretation is that the proceedings should be confined to the time when the ZEC officials were sitting and making the announcements. When they adjourned the proceedings had terminated, the proceedings could not be disrupted. This approach narrows the announcement proceedings to an event and not a process. It is a process because it involved a lot more than the sitting of the ZEC officials. To our mind it involved the transmission of the results, the setting up of the room (s) associated with the announcements. The intention of the legislature in enacting the provision was to make sure that whatever proceedings conducted in connection with elections be carried out seamlessly devoid of any hindrances.</p> <p>            The term proceedings therefore should be taken to include all the processes culminating in the sitting of the ZEC officials making the announcements. This will include even the processes taking place on the day at the provincial centres associated with the transmission of the electoral results. To our mind even an interference of the transmission of the provincial results to the HICC would constitute a disturbance in the proceedings of the announcement of results. An adjournment by the ZEC officials on the day, was a break only in respect of the sitting which is but a part of the announcement proceedings. The legislature intended to preserve the integrity of the electoral process by ensuring that they proceed smoothly to their logical conclusion. There was evidence that the appellant’s conduct resulted in some commotion as representatives from other political parties responded to his announcement. His conduct was captured on video by journalists. The appellant’s conduct should not be condoned especially in view of the fact that the same Act<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a> provides for recourse that any disgruntled member could pursue to remedy any perceived irregularities. It was open for the appellant to pursue the proper legal channels to challenge the process.</p> <p>            It is our considered view that the court <em>a quo</em> did not misdirect itself. The appeal lacks merit and it is accordingly dismissed.</p> <p> </p> <p> </p> <p>MUSAKWA J agrees ………………</p> <p> </p> <p><em>Mbidzo, Muchadehama &amp; Makoni</em> ; appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> 2015 (2) ZLR (3) CC</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> CC Z ZLR 339 (S)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 1995 (1) 339 (S)</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> Interpretation of Statutes ,Juta &amp; Co 1992</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Section 15 B of the Interpretation Act [Chapter 1:01]</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> Section 167 of the Electoral Act</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/2020/369/2020-zwhhc-369.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26352">2020-zwhhc-369.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/2020/369/2020-zwhhc-369.pdf" type="application/pdf; length=528431">2020-zwhhc-369.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/elections-0">ELECTIONS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/electoral-act-chapter-201">Electoral Act [Chapter 2:01]</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/golden-rule-interpretation">Golden Rule (INTERPRETATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/meaning-words">Meaning of words</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/particular-words-interpretation">Particular words (INTERPRETATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/6">Chihava &amp; Another v Provincial Magistrate Mapfumo N.O. &amp; Another (No. 02/14) [2015] ZWCCZ 6 (14 July 2015);</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/2018/6"> Electoral Amendment Act, 2018</a></div><div class="field-item odd"><a href="/zw/legislation/act/1962/1">Interpretation Act [Chapter 1:01]</a></div></div></div> Wed, 08 Jul 2020 10:28:35 +0000 Sandra 9775 at https://old.zimlii.org Tapedza & Others v ZERA & Another (SC 30-20, SC 150/16) [2020] ZWSC 30 (28 February 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/30 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/30/2020-zwsc-30.pdf" type="application/pdf; length=160530">2020-zwsc-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/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/collective-bargaining">Collective bargaining</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/meaning-words">Meaning of words</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/particular-words-interpretation">Particular words (INTERPRETATION)</a></li></ul></span> Tue, 10 Mar 2020 07:03:04 +0000 Sandra 9536 at https://old.zimlii.org Zulu v ZB Financial Holdings (Private) Limited (SC 48/18, Civil Appeal No. SC 190/15) [2018] ZWSC 48 (27 July 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/48 <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>        (36)</strong></p> <p> </p> <p><strong>THANDEKILE     ZULU</strong></p> <p><strong>v</strong></p> <p><strong>ZB     FINANCIAL     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>ZIYAMBI JA, GARWE JA, HLATSHWAYO JA,</strong></p> <p><strong>GUVAVA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, OCTOBER 5, 2016 &amp; JULY 27, 2018</strong></p> <p> </p> <p> </p> <p><em>M. Gwisai</em>, for the appellant</p> <p><em>T. Mpofu, </em>with him<em> G.R.J. Sithole</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>HLATSHWAYO JA:    </strong>This is an appeal against the entire Judgment delivered by the Honourable Justice G. Musariri in the Labour Court at Harare on 31 May 2013.</p> <p> </p> <p>The facts of this matter are common cause. The appellant was employed as a clerk by the respondent from 2 September 1991 to 31 October 2009. In January 2009, the appellant fell ill and was granted paid sick leave from 22 January 2009 to 8 February 2009. Thereafter, the leave was extended by 15 days covering the period from 10 February 2009 to 24 February 2009.  The appellant then submitted another sick leave application for an indefinite period from 24 February 2009 onwards. By August 2009, the appellant had not yet reported to work and upon enquiry by the respondent, she produced a letter from her medical doctor which confirmed his advice to her to take bed rest from February 2009 onwards.</p> <p> </p> <p>Come October 2009, the appellant had still failed to report for work and upon enquiry she indicated that she was not feeling well and was unsure as to when she would return to work. As at 30 October 2009, the appellant’s cumulative period of absence amounted to 251 days. By letter dated 2 December 2009, the respondent unilaterally terminated the appellant’s employment with effect from 31 October 2009.</p> <p> </p> <p> The termination was in terms of s 14 (4) of the Labour Act. The appellant challenged the dismissal as unfair and in contravention of s 14 (4) of the Act.  The matter went before a labour officer who issued a certificate of no settlement and referred it for arbitration. The arbitrator upheld the respondent’s claim that the matter had prescribed but nonetheless held that the dismissal was in terms of s 14 (4) of the Labour Act and therefore it was lawful.</p> <p> </p> <p>Aggrieved by this decision, the appellant appealed to the Labour Court against the decision of the arbitrator. At the hearing in the Labour Court, the respondent’s attorney conceded that the matter had not prescribed. The issue that remained for determination by the court was the interpretation of s 14(4) of the Labour Act. The court interpreted a period of one year to mean one calendar year and dismissed the appellant’s appeal on the basis that she had exceeded the prescribed number of sick leave days. The appellant appealed to this Court on the following grounds:</p> <ol> <li>The Labour Court erred in law in its interpretation of the phrase “any one-year period of service” under s 14 (4) of the Labour Act [<em>Chapter 28:01</em>] to refer to a calendar year and in holding that any interpretation of the phrase based on the employee’s employment anniversary date would lead to an absurdity. Whereas the correct interpretation of the phrase that accords with social justice at the workplace and principles of fair dismissal includes computation based on the employee’s anniversary date, use of the calendar year in fact potentially results in an absurdity of breaking up the continuous period of sick leave by calendar year demarcations which are not provided in the Labour Act and that potentially leads to gross prejudice to the interests of the employer by unduly extending the sick leave.</li> <li>The court <em>a quo</em> and Arbitrator Kabasa , erred in law by misinterpreting s 14 (4) of the Labour Act so as to grant an employer unfettered authority to automatically terminate the contract of employment on the expiry ofthe 180 sick leave days , as a consequence thereof the court <em>a quo</em> and the arbitrator wrongfully failed to consider the appellant’s submission that despite the expiry of any 180 days of sick leave, the dismissal was still unfair because of the failure by the employer to consult her on whether continued employment was possible and that she had sought, and believed was granted, unpaid sick leave. Given that the illness arose out of pregnancy complications and miscarriages, such failure was a gross misdirection as employees are protected from unfair discrimination on the basis of pregnancy and gender.</li> </ol> <p> </p> <p>From the papers, it appears that the two issues arising from this appeal are whether the court <em>a quo</em> erred in its interpretation of s 14 (4) of the Labour Act and whether or not an employer has an unfettered right to terminate employment under s 14 (4) of the Labour Act. I shall consider them in turn below.</p> <p> </p> <ol> <li><strong>Whether the court <em>a quo</em> erred in its interpretation of section 14 (4) of the Labour Act </strong></li> </ol> <p>It was contended for the appellant that the court <em>a quo</em> misinterpreted s 14 (4) of the Labour Act. The provision is couched as follows:</p> <p><em>“</em>If , during any one year period of service, the period or aggregate periods of sick leave exceed-</p> <ul> <li>Ninety days’ sick leave on full pay; or</li> <li>Subject to subsection (3) , one hundred and eighty days’ sick leave on full and half pay;</li> </ul> <p>The employer may terminate the employment of the employee concerned<em>”</em></p> <p> </p> <p> </p> <p> </p> <p>Appellant’s counsel submitted that the phrase “one year period of service” ought to be construed to mean a period of twelve months calculated from the date on which the appellant commenced employment with the respondent, that is, a period running from 2 September to 1 September the following year, or “anniversary date/period” while the court <em>a quo</em> interpreted the phrase to mean “a calendar year” and a third meaning of “a period of twelve months” is another possible literal meaning of the phrase.</p> <p> </p> <p>The rules of statutory interpretation dictate that the words of a statute shall be given their ordinary grammatical meaning unless doing so leads to an absurdity. In the case of <em>Venter v Rex</em> 1907 TS 910, INNES CJ said the following at 914-5:</p> <p>“it appears to me that the principle we should adopt may be expressed somewhat in this way:  that when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature”</p> <p> </p> <p> </p> <p>This approach was followed by MCNALLY JA in <em>Chegutu Municipality v Manyara </em>1996 (1) ZLR 262 (S) at 264 D-E, where he said:</p> <p>“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in <em>Grey v Pearson</em> (1857) 10 ER 1216 at 1234, ‘unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified as to avoid that absurdity and inconsistency, but no further”</p> <p> </p> <p> </p> <p> </p> <p>But what if the literal interpretation, the grammatical or ordinary sense of the words, yields two or more meanings, which literal meaning is to be preferred? For, there can conceivably be more than one grammatical meaning of words, as this case clearly demonstrates: a “year” literally could mean “a period of 12 months” or “an anniversary period” or “a calendar year” – all with different computational consequences. In my view, the “absurdity” or “repugnance” principle may be applied to select a literal meaning that does not lead to “some absurdity, or some repugnance or inconsistency with the rest of the instrument”. In other words, the “absurdity or repugnancy” principle, while ordinarily applied vertically to justify a departure from the literal meaning, may, in my view, be deployed horizontally, in specific circumstances, to facilitate a selection of the most appropriate among competing literal meanings.</p> <p> </p> <p> </p> <p>The <em>Collins Dictionary of the English Language (1979)</em> defines “year” as “1. a period of time, the calendar year, containing 365 days or in a leap year 366 days … and is reckoned from January 1 to December 31. 2. a period of twelve months from any specified date …”.  Thus, this definition encompasses all the three possible meanings indicated above.</p> <p> </p> <p> </p> <p>In <em>casu,</em> the literal interpretation of the provision as suggested by the appellant to mean 12 months calculated from each employee’s anniversary date of engagement, does lead to an absurdity. This means that the respondent, in the present case, would be forced to reinstate an employee who spent 251 days away from work, a period which is outside the statutory limit of 180 days. Such wildly unreasonable result can never have been the intention of the legislature. There is also the added administrative inconvenience of having to calculate the sick leave days based on each employee’s anniversary date of engagement and the consequent inconsistencies from one employee to the other.  There is, therefore, adequate reasons for discarding the “anniversary year” literal meaning as suggested by the appellant.</p> <p> </p> <p>The interpretation given to the phrase by the court <em>a quo</em> also leads to an absurdity. It interpreted a period of one year to mean one calendar year, i.e. 1 January to December 31, and that certainly would create an absurd situation. For instance, if an employee falls sick on 1 July and takes their 180 days of sick leave on full and half pay till 31 December, he or she would still be entitled to apply for sick leave again on 1 January the following year because they would have entered another sick leave cycle. The number of days that the employee would thus spend on sick leave would amount to a period of one year or 365/366 days – a period more than twice the statutory 180 days and, certainly, a situation which could never have been intended by the legislature.</p> <p> </p> <p>The most appropriate interpretation of the phrase, in my view, should be drawn from s 33 (6) (d) of the Interpretation Act [<em>Chapter 1:01</em>] which states that in any enactment, a reference without qualification to a year shall be construed as a reference to a period of twelve months. It logically follows that the year in s 14 (4) means a period of twelve months from the date on which the employee fell sick. In this case, the appellant’s sick leave cycle commenced on 22 January 2009 and would end on 21 January the following year. This interpretation is in line with the intention of the legislature to give each employee one hundred and eighty days of sick leave. The appellant clearly exceeded the number of days an employee is entitled to because she was on sick leave for two hundred and fifty-one days instead of one hundred and eighty days.  I therefore find that the court <em>a quo</em> erred in its interpretation of ‘one year period’ under s 14 (4) of the Act.</p> <p> </p> <p>Although the appellant’s preferred interpretation has been found to be leading to as much absurdity as the respondent’s, she must be viewed as having been successful in challenging the interpretation adopted <em>a quo</em>, and, thus, successful on the point in the appeal.  </p> <p> </p> <ol> <li><strong>Whether the Respondent had an unfettered right to terminateemployment under section 14 (4) of the Act </strong></li> </ol> <p>Section 14(4) of the Act permits an employer to terminate the employment of an employee who has exhausted the sick leave prescribed in the Act. The appellant’s counsel argued that the provision, however, does not give an employer an unfettered right to terminate such employment.  He relied on the decision of this Court in <em>Zimasco v Maynard Marikano </em>SC 6/14 where, in that case, it was argued by the appellant that s 14 (4) of the Act gives an employer the absolute right to elect to terminate the employment of the employee who has exhausted the maximum sick leave period specified in the Act. It had been further contended that the right to terminate is not subject to compliance with any particular procedures. These submissions were rejected by that court. At page 8 of the judgment, GARWE JA said:</p> <p>“since the decision to terminate an employment contract has far reaching consequences, one should assume that before such a decision is taken the employer would be obliged, at the very least, to advise the employee of the fact that he has taken the sick leave contemplated in s 14 (4) and that for that reason it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period.  In my view, it would not be proper for an employer to invoke the provisions of s 14(4) of the Act and, without notice to the employee, proceed to terminate his contract of employment. In short, the <em>audi alteram</em> principle would still need to be respected and failure to do so would render any such termination null and void.”</p> <p> </p> <p> </p> <p>In essence, what these remarks mean is that the respondent ought to have given notice to the appellant that it intended to terminate her employment due to the fact that she had exceeded the number of sick leave days specified in the law.  However, it is important to point out, with respect, that the above remarks by GARWE JA were <em>obiter</em>. The <em>ratio decidendi</em>, in my view, was that the group policy and procedures were not complied with by the appellant in that case. The learned judge held that since s 14 (1) of the Act provides that unless more favourable conditions are provided for in an employment contract, sick leave shall be provided for in terms of s 14 of the Act, and the appellant ought to have followed what was stipulated in the policy and procedures that were incorporated in the employment contract.</p> <p> </p> <p>I turn now to address the question whether the employer has an unfettered discretion to terminate employment under s 14 (4) of the Act. It is important to restate the provision:</p> <ul> <li>If, during any one-year period of service the period or aggregate periods of sick leave exceed –</li> </ul> <p>(a)…</p> <p>(b) subject to subsection (3), one hundred and eighty days’ sick leave on full and half pay: the employer may terminate the employment of the employee concerned”</p> <p> </p> <p> </p> <p>A reading of this section shows that it is silent on the requirement for the employer to give notice to the employee before terminating employment under the section. In the absence of such a requirement, to hold that the employee ought to have been afforded a chance to be heard before dismissal is tantamount to “reading into” and altering the clear language of the statute.</p> <p> </p> <p>The remarks of GUBBAY JA (as he then was) in <em>Nxumalo &amp; Ors v Guni</em> 1987 (1) ZLR 1 (SC) are apposite: </p> <p>“The language used is plain and unambiguous and the intention of the Law Society is to be gathered there from. It is not for a court to surmise that the Law Society may have had an intention other than that which clearly emerges from the language used.”</p> <p> </p> <p> </p> <p> </p> <p>In this case, the Act gives the employer the discretion to terminate the employment of the employee and does not go further to state that the employee should be notified of the impending dismissal. This provision codifies the common law principle that an employer is entitled to terminate employment due to incapacity. This common law principle is entrenched in our law and there is a presumption that a statute cannot alter the common law without saying so explicitly. This principle finds authority in the case of <em>Phiri and Ors v Industrial Steel Pipe (Pvt) Ltd </em>1996 (2) ZLR 45 (S), wherein the following was stated at page 49:</p> <p>“There is a presumption, in the interpretation of statutes, that Parliament does not intend a change in the common law,  unless it expresses its intention with irresistible clearness or it follows by necessary implication from the language of the statute in question that it intended to effect such alteration in the common law; for ‘construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction …’:  <em>per</em> Lord Halsbury LC in <em>Bank of England</em> v <em>Vagliano</em> [1891]  C  AC 107 at 120.”</p> <p> </p> <p> </p> <p> </p> <p>In light of the above, I am of the view that the provision does not take away the employer’s unfettered discretion to terminate employment due to incapacity. It would be a gross miscarriage of justice to impose an onerous obligation on the employer where the clear language of the statute does not provide such an obligation.</p> <p> </p> <p>In the present case it would be unjust for the respondent to be compelled to keep the appellant in employment even after she has been away for an unreasonable period. In <em>Girjac Services (Pvt) Ltd v Mudzingwa </em>1999 (1) ZLR 243 SC at p246 the court said:</p> <p>“... Nonetheless, the fact that the employee is incapacitated by a cause beyond his control - by an act of God, if you like - does not deprive the employer of the right to terminate the contract where the absence was unreasonable. Non-performance by the employee of his duties for an unreasonable time justifies the employer in refusing to perform his part of the contract and considering his obligation at an end. “</p> <p> </p> <p> </p> <p>The above authority clearly justifies the respondent’s decision to terminate the appellant’s employment after she had been on sick leave for a protracted period.</p> <p> </p> <p>Furthermore, there is merit in the respondent’s argument that the appellant conducted herself in such a manner as to repudiate the contract of employment.  This is so because it is the employer who sought after her to enquire about the progress of her recovery whilst she made no effort to indicate that she was still interested in returning to work. It would be unreasonable to expect the employer to keep making enquiries when the appellant who had indicated that she was unfit for duty had neither reported recovery nor requested a further period of recuperation after the expiry of 251 days.  As was stated in the case of <em>Beretta v Rhodesia Railways Ltd </em>1947 (2) SA 1075 (SR):</p> <p>“…if the disability persists for a period which, judged on the circumstances of the particular case, renders it unreasonable that the other party should continue bound whilst receiving no benefit from the contract, such party is entitled to terminate the contract..”</p> <p> </p> <p> </p> <p>In the specific circumstances of this case it would have been onerous to expect the employer to have taken further steps to remind the employee that the period prescribed in the Act had lapsed when it is clear that she herself took no steps to indicate to the employer that she wanted the contract of employment to subsist. That aside, the requirement to give notice, though laudable, is likely to import uncertainties into the clear provisions of the Act.  Does the employer notify the employee in anticipation of, or upon, the expiry of the sick leave days?  If the former, how is a reply that the employee would be ready to resume work slightly after the expiry of the leave to the treated?  If the latter, would that not amount to extending the statutorily stipulated period of sick leave? I therefore find that there was no requirement under s 14 (4) of the Act for the employer to notify the employee before dismissing her from employment.  Any miscalculation of the periods of leave that may occur in any given case can safely be dealt with through a challenge of the dismissal. </p> <p> </p> <p>The appeal, while partially successful in upsetting the reckoning of the sick leave days adopted by the court <em>a quo</em>, ought on the whole to be dismissed as that success had no impact on the outcome of the appeal and may only be considered in assessing the question of costs.   This outcome, therefore, requires each party to bear its own costs. </p> <p> </p> <p>Accordingly, the following order shall issue:</p> <p>This appeal is dismissed with each party bearing its own costs.</p> <p> </p> <p> </p> <p>                                    <strong>ZIYAMBI JA:                       </strong>I agree</p> <p> </p> <p> </p> <p><strong>GARWE JA:                         </strong>I agree</p> <p> </p> <p> </p> <p><strong>GUVAVA JA:                       </strong>I agree</p> <p> </p> <p> </p> <p><strong>UCHENA JA:                       </strong>I agree</p> <p> </p> <p> </p> <p><em>Munyaradzi Gwisai &amp; Partners, </em>appellant’s legal practitioners</p> <p><em>Gill, Godlonton &amp; Gerrans, r</em>espondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/48/2018-zwsc-48.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40719">2018-zwsc-48.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/2018/48/2018-zwsc-48.pdf" type="application/pdf; length=220300">2018-zwsc-48.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/lawful-dismissal">Lawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/meaning-words">Meaning of words</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/6">ZIMASCO (Pvt) Ltd v Marikano (SC 130/11) [2014] ZWSC 6 (12 January 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1962/1">Interpretation Act [Chapter 1:01]</a></div></div></div> Fri, 26 Oct 2018 06:50:01 +0000 admin 9123 at https://old.zimlii.org Innscor Africa Limited & Another v Competition and Tariff Commission (SC 52/18, Civil Appeal No. SC 560/17) [2018] ZWSC 52 (25 January 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/52 <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 (39)</strong></p> <p> </p> <p> </p> <p><strong>(1)     INNSCOR     AFRICA     LIMITED</strong></p> <p><strong>(2)     GERIBRAN     SERVICES     (PRIVATE)     LIMITED</strong></p> <p> </p> <p><strong>v</strong></p> <p> </p> <p><strong>COMPETITION     AND      TARIFF     COMMISSION</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MALABA CJ, HLATSHWAYO JA &amp; PATEL JA</strong></p> <p><strong>HARARE, JANUARY 25, 2018 </strong></p> <p> </p> <p> </p> <p><em>S M Hashiti</em>, for the appellants</p> <p> </p> <p><em>T L Mapuranga</em>, for the respondent</p> <p> </p> <p> </p> <p>            <strong>MALABA CJ:</strong> This is an appeal against the judgment of the High Court holding that a conglomerate is a “merger” as defined in terms of s 2 of the Competition Act [<em>Chapter 14:28</em>] (“the Act”) and, therefore, notifiable to the respondent in terms of s 3A of the Act if its value exceeded the statutory threshold.</p> <p> </p> <p>On the date of hearing, a concession was made to the effect that the appeal lacked merit.  The parties advanced argument on costs. The Court made the order that the appeal be dismissed with costs.</p> <p> </p> <p>            It became necessary for the Court to give a full judgment on the meaning of s 2 of the Act.</p> <p> </p> <p><strong>Factual background</strong></p> <p> </p> <p>The first appellant is a limited liability company incorporated in terms of law, trading in the food industry. The second appellant is also a limited liability company incorporated in terms of law, trading in motor spares and accessories. The respondent is a body corporate established in terms of s 4 of the<a name="_Hlk510948971" id="_Hlk510948971"> Act. </a></p> <p> </p> <p>Sometime in 2015 the first appellant acquired a controlling interest in the second appellant. In terms of s 34 of the Act, as read with the Competition (Notifiable Merger Thresholds) Regulations 2002 (SI 195 of 2002) (“the Regulations”), all mergers in terms of the Act with a value above the threshold value of US$1.2 million had to be notified to the respondent. The appellants’ conglomerate had a value above the prescribed threshold. The appellants took the view that their union was not notifiable in terms of the Act as read with the Regulations because it was a conglomerate. A conglomerate is a corporation formed by merging unrelated firms. They alleged that a conglomerate was not a merger in terms of the Act. The appellants based their view on an opinion given by an advocate.</p> <p> </p> <p>The respondent had initially agreed to the position that the appellants’ union, being a conglomerate, did not fall within the statutory definition of “merger” and was thus not notifiable. It later took the view that conglomerates were covered by the definition of “merger” in the Act and were required to be notified if their value exceeded the statutory threshold. The respondent instituted proceedings in the court <em>a quo</em>, seeking an order declaring the conglomerate formed by the appellants notifiable and compelling them to pay fees in terms of s 34A of the Act as read with the Regulations.</p> <p> </p> <p>The parties proceeded by way of a case stated in terms of r 199 of the High Court Rules, 1971. The statement of agreed facts presented by the parties was as follows:</p> <p> </p> <p>“1.       The first defendant and the second defendant entered into a conglomerate merger in 2015, through the acquisition by the first defendant of a controlling interest in the second defendant.</p> <p> </p> <p>2.         The first and second defendants are not competitors nor are they customer and supplier.</p> <p> </p> <p>3.         The plaintiff has insisted on notification of the merger between the defendants on the basis that it is covered by the definition of a merger in s 2 of the Competition Act [<em>Chapter 14:28</em>].</p> <p> </p> <p>4.         The defendants insist that a conglomerate merger is not a notifiable merger in terms of s 2 of the Competition Act [<em>Chapter 14:28</em>]”</p> <p> </p> <p> </p> <p>The legal issue which the parties placed before the court <em>a quo</em> for determination was whether or not the conglomerate formed by the appellants was a merger in terms of the Act.</p> <p> </p> <p>The determination of the issue depended on the interpretation of the words “or other person” in the definition of “merger” by s 2 of the Act. The respondent urged the court <em>a quo </em>to apply the literal rule of interpretation in ascertaining the meaning of “merger”, as used in the Act. It contended that the words “or other person” referred to a person falling outside the categories of persons specifically mentioned in the definition. The appellants urged the court <em>a quo</em> to apply the <em>eiusdem generis</em> or <em>noscitur a sociis</em> rule to ascertain the meaning of the words “or other person”. According to this interpretation, the words “or other person” would refer to a person who shared qualities similar to those falling within the classes of the persons referred to in the definition of “merger”.</p> <p> </p> <p>The court <em>a quo</em> held that the conglomerate formed by the appellants was a merger in terms of s 2 of the Act. That meant that it was notifiable to the respondent.</p> <p> </p> <p>The appellants appealed against the decision of the court <em>a quo</em> on the following grounds:</p> <p> </p> <p>"1.        The court <em>a quo</em> erred in law and misdirected itself by holding that the term ‘or other person’ in the definition of a ‘merger’ when used in its ordinary grammatical meaning includes any other person not specified in that definition who acquires a controlling interest in the business of another.</p> <p> </p> <p>2.         The court <em>a quo</em> erred in law and misdirected itself in holding that the effect of the use of the term ‘or other person’ in the definition of a merger is to extend the definition of a merger to other classes of persons not previously specifically mentioned.</p> <p> </p> <p>3.         The court <em>a quo</em> erred in law and misdirected itself by holding that the term ‘or other person’ in the definition of merger ought to be interpreted broadly.</p> <p> </p> <p>4.         The court <em>a quo</em> erred in law and misdirected itself in holding that the term ‘or other person’ in the definition of merger ought not to be interpreted <em>eiusdem generis</em> and <em>noscitur a sociis</em>.</p> <p> </p> <p>5.         The court <em>a quo</em> erred in law and misdirected itself in holding that the application of the <em>eiusdem generis</em> rule would render the term ‘or other person’ meaningless or result in an absurdity.</p> <p> </p> <p>6.         The court <em>a quo</em> erred in law and misdirected itself in holding that the transaction between the appellants, commonly known as conglomerate merger, was a merger as envisaged by section 2 of the Competition Act.”</p> <p> </p> <p>The issue for determination was <a name="_Hlk510773201" id="_Hlk510773201">whether or not the court <em>a quo</em> was correct in its interpretation of the definition of “merger” in s 2 of the Act to include a conglomerate.</a> The Court held that the court <em>a quo</em> adopted the correct interpretation of s 2 of the Act. The following are the reasons for the decision.</p> <p> </p> <p><strong>The appellants’ argument</strong></p> <p> </p> <p><em>Mr Hashiti</em> had submitted that a conglomerate did not fall within the definition of a merger in s 2 of the Act.  He had argued that in interpreting the words “or other person”, the <em>eiusdem generis</em> rule ought to have been applied by the court <em>a quo</em>. His argument was basically that the words “or other person” could not be interpreted widely to mean persons outside the class of those mentioned specifically in the definition. He contended that the words “or other person” were intended to extend the definition to cover “persons” in business relationships at the time they merged.</p> <p> </p> <p><em>Mr Hashiti</em> further submitted that the Legislature’s insertion of the words “or other person” in the definition of merger in s 2 of the Act was not intended to include a conglomerate or any mergers other than those formed between persons who were in some form of a business relationship. The basis of his argument was that had it been the Legislature’s intention to include conglomerates and other unforeseen mergers in the definition, it would have simply defined a merger as the “acquiring of a controlling interest” without specifically mentioning the categories of customer, competitor and supplier.</p> <p> </p> <p><strong>Whether or not a conglomerate is included in the definition of merger in terms of section 2 of the Act</strong></p> <p> </p> <p>Competition in any marketplace for the production or supply of goods or services is necessary for achieving economic growth and development. Competition policy is formulated to encourage, improve and protect the competition process for the benefit of consumers through monitoring and regulating business conduct that is actually or potentially anti-competitive and capable of depriving consumers of the benefits associated with a competitive market.</p> <p> </p> <p>One of the forms of business conduct which competition policy seeks to monitor and regulate is corporate merger. Corporate mergers are an important tool for effecting corporate restructuring transactions that are necessary for enhancing general efficiency in the market and ensuring business survival especially in harsh economic environments.  However, corporate mergers can sometimes be harmful or potentially harmful to the competitive structure of the market, thereby negating the gains of competition. An effective merger regulatory framework is necessary for the achievement and maintenance of the balance between the promotion of beneficial corporate restructuring transactions on one hand and protection of the competitive process on the other.</p> <p> </p> <p>There are three types of mergers recognised under competition law - vertical, horizontal and conglomerate. Vertical mergers are those mergers that take place between two related companies as in the case of a customer merging with its supplier. Horizontal mergers are those that take place between companies that are in direct competition with each other. Conglomerate mergers are those between two or more firms that engage in unrelated business activities with different customer bases. Such entities are not competitors and do not have a customer and supplier relationship.</p> <p> </p> <p>All the three types of mergers are potentially harmful to competition notwithstanding the fact that conglomerates are not entered into by competitors, suppliers and customers. Mergers may cause the elimination of effective competition, thereby creating dominant companies that have the capacity and potential of engaging in anti-competitive practices detrimental to consumer welfare, such as price increases and poor service delivery.</p> <p> </p> <p>For the reason that all mergers recognised under competition law have the potential to negatively affect competition in the market, special laws have been designed to regulate mergers.</p> <p> </p> <p>The Competition Act [<em>Chapter 14:28</em>] Act No 7 of 1996 came into force in 1998. Section 2 of the Act defined a merger as follows:</p> <p>“’merger’ means –</p> <p> </p> <p>(a)        the acquisition of a controlling interest in -</p> <p> </p> <ul> <li>an undertaking involved in the production or distribution of any commodity or service; or</li> </ul> <p> </p> <ul> <li>an asset which is or may be utilised for or in connection with the production or distribution of any commodity;</li> </ul> <p> </p> <p>where the person who acquires the controlling interest already has a controlling interest in any undertaking involved in the production or distribution of the same commodity or service; or</p> <p> </p> <p>(b)        the acquisition of a controlling interest in an undertaking whose business consists wholly or substantially in –</p> <p> </p> <p>(i)         supplying a commodity or service to the person who acquires the controlling interest; or</p> <p> </p> <p>(ii)        distributing a commodity or service produced by the person who acquires the controlling interest;”.</p> <p> </p> <p>This definition was clear as to the types of mergers it covered. Part (a) covered situations where a person acquired a controlling interest in an undertaking producing the same commodity or service (competitors). That was a horizontal merger. Part (b) covered situations where a person acquired a controlling interest in a supplier of commodities or distributor of services. That was a vertical merger.</p> <p> </p> <p>The definition was amended in 2001 by Act 29 of 2001.  Section 2 of the Act as amended now defines a merger as follows:</p> <p> </p> <p>“’merger’ means <a name="_Hlk510788436" id="_Hlk510788436">the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer or other person </a>whether that controlling interest is achieved as a result of — …”. (the emphasis is mine)</p> <p> </p> <p>The Legislature’s intention in amending the definition of merger could not have been to cover the vertical and horizontal mergers only, as originally provided for under the 1996 Act. The addition of the words “or other person” to the substance of the definition was intended to broaden the definition to include mergers between parties who did not fall within or were not sharing any characteristics with those in the categories of <a name="_Hlk517775781" id="_Hlk517775781">competitor, supplier and customer</a>. The meaning of “merger” was broadened to cover a situation where one or more persons acquired or established a controlling interest in an undertaking not falling within the categories of a competitor, supplier or customer.</p> <p> </p> <p>What determines the applicability of the definition of “merger” for purposes of the Act is the existence of a controlling interest by one or more persons in the whole or part of the business of another person. The definition is inclusive. In other words, the definition was deliberately widened to include all types of mergers. Without the words “or other person”, the definition of “merger” would have been exhaustive as it would apply only to businesses or undertakings falling within each of the categories specifically stated. The word “other” describes a person who would not belong to any of the categories of persons specifically mentioned.</p> <p> </p> <p>The definition of a merger in s 2 of the Act is similar to the definition of merger in the South African Competition Act 89 of 1998 which reads as follows:</p> <p> </p> <p>“12. (1) For the purpose of this Chapter, ‘merger’ means the direct or indirect acquisition or direct or indirect establishment of control by one or more persons over all significant interests in the whole or part of the business of a competitor, supplier, customer or other person whether that control is achieved as a result of - …”.</p> <p> </p> <p>Commenting on the definition of merger in the South African Competition Act, David Lewis - the then Chairperson of the Competition Tribunal - in a speech titled <em>The Competition Act 1998 – Merger Regulation</em>, said:</p> <p> </p> <p>“There are a number of key features of merger regulation under the Act that you should appreciate upfront - firstly, it incorporates vertical, horizontal and conglomerate mergers; secondly, it is about acquisition of control and the mechanisms for acquiring control are broadly defined; thirdly control itself is broadly construed. In short, the merger definition is inclusive – there are few business combinations that would fall outside of the definition of merger. This contrasts markedly with the previous Act that dealt with horizontal mergers only - that is, mergers between competitors only.” (My emphasis)</p> <p> </p> <p> </p> <p>In interpreting the same provision of the South African Competition Act of 1998, the South African Competition Tribunal in the case of <em>Bulmer SA (Pty) Ltd v Distillers Corporation (SA) Ltd</em> (1) [2001-2002] CPLR 448 (CT), 464 said the following:</p> <p> </p> <p>“Section 12 refers to a competitor, supplier, customer or ‘other person’. The inclusion of the category of ‘other person’ considerably widens the ambit beyond the more obvious concerns about horizontal and vertical mergers to include all mergers.”</p> <p> </p> <p>From the above, it is clear that the South African definition of a merger, similar to the definition of a merger in s 2 of the Act, was held to include other mergers outside the horizontal and vertical mergers mentioned. In the same vein, the respondent’s argument that the definition of a merger in the Act is inclusive of mergers other than horizontal and vertical mergers cannot be faulted.</p> <p> </p> <p>For clarity, however, the South African Competition Act of 1998 has since been amended by Act No. 39 of 2000 to specifically include all mergers, but it is clear from the above authorities that even before that amendment the words “or other person” in the former definition of “merger” were held to include conglomerate mergers.</p> <p> </p> <p>Commenting on the interpretation of the words “or other person”, Ignatious Nzero, in an article titled <em>“Is there a gap in the definition of corporate mergers in Zimbabwe’s Competition Act? Revisiting the Caledonia Holdings (Africa) Limited/Blanket Mine (1983) (Private) Limited Merger” </em>2015 78.4 THRHR 589 at p 600, stated that:</p> <p> </p> <p>“The phrase ‘or other person’ can be construed as a catch all phrase that is meant to capture all other forms of mergers outside those specified as between competitors, suppliers and customers. If the legislature really intended to maintain a same line of persons, it is submitted that it would have used the word ‘and’, not ‘or’. ‘And’ means in addition to the list provided, suggesting in addition to competitor, supplier and customer whereas ‘or’ suggests a diversion from the list. Thus, the use of ‘or’ entails that the legislature intended to expand the list to include even those persons outside the specified list. There is nothing in the statute or anywhere else to suggest that such a construction is wrong…”.</p> <p> </p> <p>The words “or other person” in this context cannot be interpreted <em>eiusdem generis</em> as advocated by the appellants. The <em>eiusdem generis</em> rule was defined by the learned author Gail-Maryse Cockram, <em>The Interpretation of Statutes</em> 3 ed p 153, as follows:</p> <p> </p> <p>“Where a list of items which form a genus or class is followed by a general expression, the general expression is, in the absence of a contrary intention in the statute, construed <em>eiusdem generis</em> to include only other things of the same class as the particular words.”</p> <p> </p> <p>The <em>eiusdem generis</em> rule is not a rule of general application to be applied every time general words follow particular words. The rule would be applicable where a general expression follows a list of items that form a <em>genus</em>. The categories of “customer, supplier and competitor” do not constitute a list of items that form a <em>genus</em>.</p> <p> </p> <p>In <em>S v Makandigona</em> 1981 (4) SA 439 (ZAD) at 443H-444A the court reiterated that:</p> <p> </p> <p>“It must be remembered that the <em>eiusdem generis</em> rule is only one of many rules of construction; it is not to be invoked automatically whenever general words follow particular words.   Thus <em>Craies on Statute Law</em> 7 ed says at 181:</p> <p> </p> <p>‘The <em>eiusdem generis</em> rule is one to be applied with caution and not pushed too far, as in the case of many decisions, which treat it as automatically applicable, and not as being what it is, a mere presumption, in the absence of other indications of the intention of the legislature.’”</p> <p> </p> <p>At p 601 of the article referred to above, Nzero makes the observation that the application of the <em>eiusdem generis</em> rule to the words “or other person” would be a misinterpretation of the provisions of s 2 of the Act. He criticised the legal opinion that suggested that the application of the <em>eiusdem generis</em> rule in the interpretation of s 2 of the Act was appropriate. He stated:</p> <p> </p> <p>“It is submitted that the application of the rule <em>(eiusdem generis)</em> in determining the meaning of the phrase ‘or other person’ as used in the statutory definition of a merger results in absurdity, as it would mean that only economic activities having an effect on the economy of Zimbabwe in the same class as competitor, supplier and customer would constitute a merger whereas other economic activities with similar effect on the economy of Zimbabwe, but which are not in the same genus or class as ‘competitor, supplier, customer’, would not constitute a merger. It is submitted that there is enough ammunition provided in the statute to determine the extent to which the legislature intended the statute to apply in general and the types of mergers covered in particular. As such, the application of the <em>eiusdem generis</em> rule was not necessary as it had the effect of creating an artificial gap in the statutory merger definition. The rule should not be applied as a general rule of application, but rather cautiously to avoid misinterpretation of statutory provisions. In particular, in constructing the meaning of ‘or other person’ used in section 2, it must be remembered that the <em>eiusdem generis</em> rule is only one of many rules of construction; it is not to be invoked automatically whenever general words follow particular words.”</p> <p> </p> <p>Interpreting words in their context requires the courts to pay due regard not only to the meaning assigned to the grammatical use of language but also the context, which requires consideration of the rest of the statute as well as its subject matter and its content. This position was affirmed in the case of <em>Stellenbosch Farmers’ Winery Ltd</em> v <em>Distillers Corp (SA) Ltd </em>1962 (1) SA 458 (AD) 476, as quoted by G M Cockram, p 41 of<em> The Interpretation of Statutes</em> 3rd ed, as follows:</p> <p> </p> <p>“It is the duty of the court to read the section of the Act which requires interpretation sensibly, i.e. with due regard, on the hand, to the meaning which permitted grammatical usage assigns to the words used in the section in question, and, on the other hand, to the contextual scene, which involves consideration of the language of the rest of the statute as well as the matter of the statute, its apparent scope and purpose, and, within limits, its background.”</p> <p> </p> <p>To determine the context in which the words “or other person” have been used, the scope and purpose of the provision in question and the Act at large must be determined first. The scope and purpose of the Act, as provided for in the Act’s long title, reads as follows:</p> <p> </p> <p>“AN ACT to promote and maintain competition in the economy of Zimbabwe; to establish an Industry and Trade Competition Commission and to provide for its functions; to provide for the prevention and control of restrictive practices, the regulation of mergers, the prevention and control of monopoly situations and the prohibition of unfair trade practices; and to provide for matters connected with or incidental to the foregoing.”</p> <p> </p> <p>It is clear from this title that, among other things, the Act aims to promote and maintain competition in the economy by regulating anti-competitive mergers. Merger regulation is at the core of competition law and in the spirit of regulating anti- competitive mergers, the Legislature enacted the current wide definition which covers all mergers which must be notified to the respondent. In terms of the Act, when a merger is notified the respondent decides if the merger undermines competition. Conglomerate mergers, although not entered into with competitors, suppliers or customers, just like horizontal and vertical mergers, affect competition. All mergers have the capacity to undermine competition.</p> <p> </p> <p>The contention by the appellants was that if the Legislature had intended to cover all types of mergers because of their potential negative effects on competition it would have said so without specifying the categories of customer, supplier and competitor. The Legislature has a discretion on how it chooses to express its intention in the enactment of laws. The question of whether the intention behind a statutory provision is inelegantly expressed should not concern a court. The duty of a court is to ascertain the intention of the Legislature however it is expressed.</p> <p> </p> <p>In <em>Van Heerden v Queen’s Hotel (Pty) Ltd</em> 1973 (2) SA 14 (RAD), 21, the court explained that:</p> <p> </p> <p>“In interpreting statutes, courts are not concerned with the elegance of the language used. Statutory instruments are not usually remarkable for the elegance of their language. The court must interpret the words in a statutory instrument so as to give effect to the true intention of the legislature, and once that intention is clear, the fact that the language used in expressing it may not be as elegant as some would like, is not a matter of consequence, especially if the language is grammatical and easily understood.”</p> <p> </p> <p><strong>Disposition </strong></p> <p> </p> <p>It was for these reasons that the Court was satisfied that the concession by counsel for the appellant that the appeal lacked merit was well-founded and, accordingly, dismissed the appeal with costs.</p> <p><strong>HLATSHWAYO JA:           I agree</strong></p> <p><strong>PATEL JA:       I agree</strong></p> <p><em>Lunga Attorneys</em>, appellants’ legal practitioners</p> <p><em>Chihambakwe, Mutizwa &amp; Partners</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/52/2018-zwsc-52.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=47048">2018-zwsc-52.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/2018/52/2018-zwsc-52.pdf" type="application/pdf; length=244424">2018-zwsc-52.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/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/meaning-words">Meaning of words</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/1996/7">Competition Act [Chapter 14:28]</a></div></div></div> Mon, 17 Sep 2018 07:42:48 +0000 admin 9104 at https://old.zimlii.org