me and self determination in public international law

Under public international law or national law for that matter , the right of people to self determination is universally acknowledged. Self determination is the right of people to determine their own fate, to determine which government they want to see in place and generally the people's freedom to determine their own freedom. In as much as this right is recognized , it is a contentious principle because some countries refuse to acknowledge self determination on the parts of some states. There are various partially recognized states in the domain of public international law which i shall discuss below. So then what is the point of recognizing the right of self determination when various countries refuse to acknowledge other states who freely choose their own political status? The following case studies will show the disputed territories and partially recognized states in the world.

THE STATE OF PALESTINE

The State of Palestine declared its independence in 1988 and it claims the West Bank, Gaza and Jerusalem as its territory. This has caused conflicts with Israel and most of the areas claimed by Palestine are occupied by Israel . The Israeli-Palestinian conflict has been ongoing for a long time now and the conflicts border around Palestinian freedom of movement , Jerusalem and also border issues among other things.However the declaration of independence by Palestine was recognized by the United Nations General Assembly and other countries such as Sweden. Some countries do not recognize the state of Palestine although it determined its own sovereignty . This shows that some countries simply do not recognize other states' self determination for political reasons.

KOSOVO

Kosovo declared its independence from Serbia in 2008 and is also a partially recognized state. Serbia does not recognize the independence of Kosovo along with other countries. It is also not a member of the United Nations and lacks diplomatic recognition from 85 UN members. Russia has strongly opposed Kosovo's declaration of independence but has supported South Ossetia and Abkhazia's independence showing double standards. America has also done the same by supporting Kosovo but not recognizing South Ossetia and Abkhazia's independence.

 KATANGA  V ZAIRE

The Katanga people wanted to secede from Zaire but its secession rejected on the  basis that secession would violate Zaire's territorial intergrity and sovereignty.

REFERENCE RE SECESSION OF QUEBEC

Quebec wanted to secede from Canada and sought an opinion from the Supreme Court of Canada which held that unilateral secession under Canadian law was not legal but if a referendum decided in favour of Quebec's independence there would be no basis for refusing its independence.

SOUTH OSSETIA AND ABKHAZIA

These two states successfully seceded from Georgia with the help of Russia. They are also partially recognized as states internationally.

PEOPLE SHOULD BE GIVEN THEIR OWN FREEDOM TO CHOOSE THEIR POLITICAL STATUS. BUT IT SEEMS THE INTERNATIONAL WORLD WANTS TO INTERFERE AND GIVE VALIDATION TO INDEPENDENCE OF STATES IT SUPPORTS ONLY. THESE DECISIONS ARE BASED ON POLITICAL EXPEDIENCY AND NOTHING ELSE.

till next time

xoxo Ms Vee

TIME TO SIT UP AND TAKE NOTICE

Many congratulations to Tanzania's newly elected president John Magufuli. He was born in 1959 and previously served as a Minister of Works in the previous government. Nicknamed the "Bulldozer" the new president has indeed been making drastic changes and it is time for the whole world to sit up and take notice. He scrapped out independence day celebrations so that the money that was set aside for that can be used to help people dying of cholera and also to help clean up the environment. He went on an unannounced trip to the national hospital and found patients lying on the floor. He then fired the Hospital Director and hired a new one. president Magufuli also ordered that 300 beds be bought for the patients he found lying on the floor. Now, that is what i call good leadership. A good leader does not allow people to sugar coat things for him or allow his ministers to take him to the best parts of the country he rules. A good leader is the one who keeps people on their toes and inspires them to work very hard. A good leader goes on unannounced visits to really notice the state of his country. President John Magufuli is making history by implementing austerity measures in Tanzania so that all the citizens in the country benefits.

Here a look at what the "Bulldozer" has been up to:

1.  He ordered the cost of the party to inaugurate new parliaments to be slashed from $100 000 to $7 000
2. He has ordered restrictions on all foreign travel by public officials
3.  He has ordered cuts in tax exemptions
4.  He reportedly refused gifts from people congratulating him when he won the presidency
5. He sacked the head of the main state hospital after he found patients lying on the floor 
6. He dissolved the governing board at the state hospital after discovering that main machines were not working and ordered the new director to get them repaired
7. Magufuli walked to the Finance Ministry and ordered that people must do their jobs after he found some people absent
8. He scrapped independence day celebrations and said the money should be used for a clean up campaign considering the citizens of Tanzania have been dying from cholera AND THIS IS THE FIRST TIME INDEPENDENCE CELEBRATIONS HAVE BEEN SCRAPPED IN TANZANIA
9. He scrapped Christmas cards to save costs and said the money should be used to pay off government debts
10. He has promised to create a special court to oversee all cases relating to corruption

 AND ALSO when he was the Minister of works he built the desperately needed roads in Tanzania.
He is reputed to be a no nonsense and results driven politician. President Magufuli is indeed a man of action and all African leaders and indeed all world leaders should sit up and take notice.

THE TANZANIANS VOTED WISELY.


XOXO MS VEE
till next time

 

ON A LIGHTER NOTE: I CANT LIVE WITHOUT THE LAW PLUS Mariah Carey - Without You (Official Video)

THE LAW MAKES ME FEEL THIS WAY. I FEEL I CANNOT LIVE WITHOUT THE LAW ANYMORE . EVERYWHERE I TURN IT IS LAW LEFT , RIGHT AND CENTER AND I LOVE IT.


XOXO

MS VEE

me and public international law

Public International law (PIL) is fascinating : at least from my own point of view. PIL covers a lot of things and one gets to understand why states do what they do. My understanding is that everything states do is for their own benefit and they do certain things if acting in such a manner benefits them. It is like the human nature really, people usually do something if it will benefit them. A few human beings, like Mother Theresa really do things out of their good hearts and expecting nothing. Now one concept of public international law has caught my eye and I am writing a dissertation on it. The concept that has stolen my heart and has got me salivating is none other than the controversial customary international law principle of universal jurisdiction. Universal jurisdiction is whereby a state can exercise its powers over an individual through prosecution regardless of where the crime was committed , whether the individual is a national of that country as long as it is in respect of heinous crimes such as piracy, war crimes and crimes against humanity. States can only exercise this power with regards to international crimes. The rationale for this principle is to make sure that no one can escape from crimes they committed in another country by escaping to another country. hence, no country can be a safe haven for criminals. This seems fair doesn't it? But doesn't this concept infringe state sovereignty . Wont this principle be used for political gains? Will it not create the tyranny of judges and result in a situation whereby the law is used to further political ideologies or further military strategies? In as much as the principle is theoretically sound , in reality bias, friction and disputes between states may arise when one country has tendencies to prosecute citizens of other countries without batting an eyelid. Will one ever be safe with universal jurisdiction?

Picking your brain......What do you think? Is universal jurisdiction fair /relevant / necessary in your own opinion?

xoxo

Ms Vee-

#FeesMustFall and the law

I have been following with interest the revolutionary students in South Africa in their campaigned famously called the #FeesMustFall campaign. What the South African students are doing is really commendable and should be applauded. The proposed fees hike is beyond the reach of many and the students have to be commended for standing up for their human rights. Every child has a right to education and that right must be protected at all costs. These days this right is under threat and many brilliant students cannot proceed with school for lack of finances. I once learnt at a South African school and i do understand how expensive the fees can be in that country. Most people as it stands cannot even afford tuition fees and to propose a fees hike to me is a violation of the right to education. The South African government is thus putting all students at  a disadvantage. Most parents cannot afford to pay these outrageous amounts given the measly wages they earn. I salute the South African students for standing up for their rights. I salute the South African students for protecting their rights to educations. Indeed fees must fall and they will fall. The students have shown that they are strong and united and this is something to be admired. Citizens of South Africa have also shown their unity as celebrities, campus control, various leaders and the community as a whole have shown their support for these students. The student uprising for justice is highly commendable and it has resulted in talks with President Jacob Zuma and student leaders today which is seeing many students march to the Union Building in a historic march. the movement has gathered momentum and is spreading throughout the country like the Ebola virus as my sister  called it. My only regret is that i was not able to be in South Africa to show my support for my fellow students . Be that as it may support can be shown through social media like Twitter and I will not stop supporting them. Twitter is already seeing 300 tweets per minute of #feesmustfall  and all students all over the world should show their support. These are students in anguish and fighting for their rights. I salute them.

I understand that these students are not just young people throwing tantrums but these are students addressing real issues on the ground. Imagine how a brilliant young students will feel when his or her parents tell him or her that they cannot afford fees and he cannot go to university. Obviously the chains of poverty will never be broken if this is allowed to happen.  Fees must fall to afford everyone the same opportunities in life. This is wrong and I will continue supporting these students. Education is the only hope most people have of getting out of poverty and if they are not able to afford it , then the government might as well be sentencing people to a life of poverty, especially the Black majority of people who are cannot afford tuition. Black people are at a disadvantage as opposed to white people in South Africa because of the apartheid era which people are still recovering from.

 Raising fees is as good as taking the black people to the apartheid era and this is contrary to what people like , Nelson Mandela fought for. Mandela must indeed be turning in his grave looking at the state South Africa is in now. It is truly sad and like the protesting students , I am anguished and am in pain.

I cannot help but think of my little sisters who learn and stay in South Africa this very moment. Are my parents going to be able to afford the tuition fees seeing that they are struggling to pay her high school fees at the moment? Will she be able to realize her dreams ? Will she be able to attend university at all? All these questions traumatize me and i thank the revolutionary students for standing up for their rights and for the rights of the future generations to come.

#FeesMustFall

The fees should fall and they will fall asap.

Ashley Madison : The law, Hacking , Adultery, Suicide

I was not aware of the fact that somebody can actually make money out of infidelity and adultery until yesterday . There is a Canadian based sited called Ashley Madison and they facilitate affairs. Their motto is "Life is short. Have an affair." Millions of people were members of this site and would pay money using credit cards-you name it so as to score an affair with a woman or a man who is married. Apparently the site offers a three month guarantee that one will certainly get an affair going for them once they sign up. What intrigued me (not in a good way) are the levels many people are willing to go for a secret affair. People can pay a huge amount of money just to score a date and possibly sleep with someone they hardly know all in the name of lust. Most of the people on the site  are married people looking for an extra marital affair. The men pay for chats and messages they have with women whilst the women can send messages for free. It is really something else. All was going well for these cheaters and adulterers until this July when some hackers who call themselves the "Impact Team" hacked into the site and threatened to release names, addresses, email address and basically all the private information of people who use this site. I bet for everyone who uses the site their hearts nearly leapt out when they heard such news.  Highly sensitive information of 37 million users was leaked to the media and some well known people were featured on it . It is reported that 2 people have committed suicide over this issue. It is being speculated that they committed the suicide because they couldn't face having their details leaked to the media. Most possibly they were afraid of what their partners would say or do or what their communities would think about them. Whatever they were scared of , I am of the view that they should and ought to have been scared before they started engaging in affairs on Ashley Madison. That fear should have kept them from spending money on strange women and conducting an affair. I think their fear should have stopped them from sending highly sexual messages to other users. I feel that fear should have stopped them from lying openly to their spouses that they were going on a business trip when in fact they were busy spending money on affairs and booking lavish hotels. Then they would have been spared of all the drama that is now panning out. 

The law is also being seen at play in this whole Ashley Madison drama. A man named John Doe in Los Angeles has filed a law suit against Ashley Madison and its parent company Avid Life Media,  seeking class action status for what he claims was negligence on the part of the company to keep its customer's data safe. Invasion of privacy and emotional distress are other things that Ashely Madison Company is being accused of . Avid Life Media was also sued last week in Canada in a class action that seeks $760 million as damages, the Guardian reports. The Toronto police officers are also trying to locate the hackers so that they can be brought to justice ( whose justice? I wonder). I am going to track the events that will continue unfolding concerning this issue.

On Twitter , people are also abuzz with the Madison issue. Some believe the hackers are to blame while some believe the adulterers got what they deserve. As the saying goes, what goes around comes back around. Also one day is one day-cheating and backstabbing always comes back to haunt somebody. Some people are of the view that every person has got skeletons in his or her closet so these hackers should not have done what they did. It is indeed sad to see that people are choosing suicide over dealing with their issues. Someone on twitter suggested that marriage counsellors, divorce lawyers and the likes should be happy now because most marriages are now damaged and some have broken down because of this hack. I do not believe these groups of people who stand to benefit in these circumstances will be happy. I do not think so. It is just their job. It is like thinking that Doctors are happy when people are sick, oh hell no, they just happen to be at your service because of their profession. It is tantamount to saying that marriage counsellors and lawyers have no feelings but only care about the money. Yes , there are a few bad apples here and there but certainly , lawyers have feelings too. Does anyone ever stop to wonder that these same people might also be affected by the hack? What if their spouse or long time lover's details were also leaked? Food for thought. 

xoxo

Life is short. Read my Blog and follow me on Twitter

Ms Vee

PS. Do not commit suicide even if the hackers leaked your name. The church, the lawyers, the marriage counselors and even the spouse you cheated on is here to help. PROBLEMS ARE NOT SOLVED BY SUICIDE

valentine masaiti: MAKING MY VOICE COUNT

valentine masaiti: MAKING MY VOICE COUNT: I wrote this article when I was only 19 years old for some essay competition, and I reproduce it today. YETT ESSAY COMPETITION 2012 ...

Monday Morning newspaper reading and law

Newspapers always contain something to do with law. I was just browsing through the newspaper and certain issues caught my eye. The newspaper reported a case on a woman who was disinherited from her husband's Will. She was customarily married and when the husband died he left a will which effectively disinherited her for he left the matrimonial home to one of his relatives. She contested the will and the court ruled in her favour with regards to the matrimonial property. This indeed got me thinking : What makes a spouse leave nothing for his or her beloved? Indeed there is a thin line between love and hate. You stay with someone for a long time thinking you know them well yet you don't . It is really sad and than God for the law that steps in and rectifies such cruel injustices. I wonder if it is out of spite or jealousy that the other party will remarry and live with the new husband or wife in the same house or it is simply being malicious. Either way it is wrong .

The law does not allow for the disinheritance of a spouse through a will and hence a spouse who finds himself or herself with no place to live can challenge such a will in the courts of law. The court can thus nullify the will fully or partially so that the surviving spouse can benefit too. A surviving spouse is the person who was still married to the deceased before he died. If the person had been divorced then there will not be a surviving spouse to talk about.

xoxo

Ms Vee

widows, children born out of wedlock and my thoughts as a law student

Not so long ago in the Bhila case , the High Court of Zimbabwe ruled that children born out of wedlock had the same rights as children born in wedlock. This ruling was praised by many and equally scorned at by others as well. Activists for equality welcomed this decision and agreed with Honourable Justice Mwayera that there should be no discrimination when it comes to sharing inheritance. I have got to admit that I have mixed feelings for this judgement. On the other hand i applaud it and at the same time i have misgivings. The reason why i applaud it is because i think that children are children regardless of being born out of wedlock or in wedlock. Therefore the father has to take care of his children and they should be entitled to his inheritance. Some children live in abject poverty whilst the father is living large and it is only fair that those kids should partake in their father's estate. On the other hand, one can only imagine how the widow feels when she only becomes aware of children born out of wedlock after her husband's death. She will be expected to share the property she worked so hard for or maybe property she had to sweat and toil for with basically strangers. One can only imagine the bitterness she feels as she remembers those nights they had to go hungry while sacrificing to buy that house or car. It surely is one hell of an ordeal to go through i imagine. No one just wants to give up what they worked so hard for. I can just imagine. Maybe the fact that the widow is allowed to keep the matrimonial home is a bit of solace but still  i can just imagine how hard it is to give up things you thought were yours after all the years of hard work. Maybe that is what has inspired Mr Bhila to appeal against the judgement that places children born out of wedlock and children born in wedlock at a par. When someone goes through all those legal channels to fight for what they believe to be rightfully theirs, I can imagine it takes a lot of strength. At the same time children born out of wedlock are also rightfully entitled to such as the deceased indeed would have sired them knowingly (unless the DNA TESTS PROVE OTHERWISE). I am sure both sides would feel rightfully entitled to the inheritance.

I am still Conflicted. Who is wrong ? Who is right? Should children born out of wedlock be at the same par as children born in wedlock? Is there any difference at all?

xoxo

Ms Vee

The wanna-be doctor that became a lawyer: SHORT AND SWEET

From as long as i can remember i always wanted to be a doctor. It was what i day dreamed of and in class when the teacher asked what i wanted to be i said confidently , I want to be a doctor. But that was not to be. I became a law student instead and one can safely conclude that i will become a lawyer. Life does not always turn out the way we want does it? But sometimes it is for the best. The moment i was enrolled into law school , i knew that was it . When Professor Madhuku took us for Introduction to Law and uttered the words " law is law , its goodness or badness is another" i was hooked. I knew i had gotten myself into something noble and sweet. Lol

XOXO
MS VEE

life in law school

I have to admit , life in law school has not been all rosy. As i am now in my final year i just want to take time to thank the Lord for taking me this far. He has always been there and i thank him for that. I have had occasion to meet different distinguished people in my life through law school and for that I am grateful. There have been hiccups here and there but through it all i have gotten to realize who my true friends are and which ones are not. In law school, i have also learnt that all that glitters is not gold and that sometimes it is good to keep your mouth shut and avoid arguments with foolish people. I have also learnt to go for what i want and also not to take in everything that is said to me as gospel truth. My friend always tells me not to take everything as gospel truth. She is what many might call a reserved person but to me she is chitty chatty and is always there for me through my highs and lows. I have experienced tremendeous grace in law school and i just want to thank the Lord for it. When many of my class mates failed a course that was perceived to be hard , the Lord made sure i sailed through. For that I am truly thankful. It cannot be said that i am more intelligent than the rest of the people that failed, well no, but it has just been this thing called undeserved favour. In all my years in law school, i have also realized that life is what you make it and that if one chooses to think of themselves as inferior to others they are merely doing a deservice to other people. It has been an eyeopener and i must say i have learnt a lot and i will use what i have learnt to empower others. It has been a roller coaster ride indeed. What with the long queues for registration and the constant hustle for accommodation on campus. It has been a long road. I have cherished every moment i have spent on that campus though i believe that a lot needs to be improved there. I am glad because i went through many obstacles in life and they have shaped me to be a better person than i was back then. I now know that common sense is not that common . I have also learnt that not everyone has the best intentions at heart when they wish to help you. I have also realised that some people are as egoistical as Kanye West. In all my learning , i know one thing : I want to make a difference.

Like Michael Jackson sang , Im looking to the woman in the mirror and i am asking her to change this world. I am starting with myself

Start with the person in the mirror as well. Make the changes

xoxo

Ms Vee

My Observations of : The lion , The lawyer ,the law and a whole lot other things

A whole lot of things have been happening in Zimbabwe and i have been observing.

Lion the Cecil is dead. He was brutally "murdered" by an American dentist. There is so much noise about it. Some are saying why is the whole world mourning Cecil while some are mourning. It is interesting really. People all over the world are up in arms over the lion. So whether one is interested in the topic or not , people are just talking about it. On tv channels , on whatsaap chats and in the newspapers. It is all about Cecil. The poor lion that was being researched by Oxford. The poor lion named after Cecil John Rhodes. How interesting. I am fascinated. Because everyone cannot seem to stop talking about it. Even I am blogging about it!!!!May his soul rest in peace. For real. No one should die the way Cecil died , even though he was an animal. Apparently he endured 40 hours of pain. That is so inhumane . It is. The American dentist has faced a lot of criticism on the internet. So much hatred towards one man. Poor him. But then again , what goes around comes -around Cecil suffered so he is also suffering now.

It never rains but it pours in Zimbabwe these days. What with the economic crises and job losses. It is really a sad situation. What is to become of those people? The unemployment rate was already high , pegged unofficially at 80%. Then because those people had no jobs , they resorted to vending in the streets. Then they were kicked off the streets. Then the Supreme Court ruling came and thousands more were laid off to join the already exploding pool of unemployed people. Then the people thought they would just sell second hand clothing. And then those second hand clothes were banned . What to do? Oh what to do? It never rains but it pours.

All the government policies are indeed good. I mean people could get sick from wearing second hand clothes, vendors on the streets caused mayhem and it is a fair deal for employers and employees to be equal aint it? These are all very good ideals we say but in this current economic situation it is not totally bad to turn a blind eye to the fact that Harare has to reach world class status by what and what year. No, that is not the main issue here. people need to survive. There are no jobs and people have children to feed. Why not let them fend for themselves? These austerity measures are indeed harsh. It is truly sad. People are suffering. The government has failed them. What is to become of us? Other countries do not want us. Where to run to? Nowhere to run to . 

And then i was also fascinated by the story of a certain lawyer. Nelson Chamisa. The ZCTU truly left me in stitches. They say just because he represented the employers in a case that led to thousands losing their jobs he must leave his political party because it is a labour backed party. Allow me to laugh out loud!!!Nelson Chamisa did lead to thousands losing their jobs nor did he do anything wrong by doing his job. The common law is the one that states that employees and employers are equal. The lawyer was simply doing his job for crying out loud. It is like saying to a doctor- "you cannot belong to an organisation that speaks out against child abuse because you treat rapists and molesters!". The doctor will simply be offering his services and doing his job when he treats a rapist. So , Nelson Chamisa was simply doing his job. The ZCTU must leave him in peace.

till next time

I will not stop observing and speaking my mind

Ms Vee

my lunch and law

I was just having lunch good people when the subject of law came up. I honestly thought i was safe from the law. After all I was just having lunch at a nice restaurant with ordinary people and i thought nothing about law would come up. Now, as i was digging into my steak and enjoying my lunch , i heard something which stopped me in my tracks. I was not eavesdropping , no i was not. The man who spoke had a booming voice and it was loud enough for me to hear. From what i gathered dear fellows, he was making a business deal with his friends seated with him at the table. I think one of the friends had suggested getting a lawyer to look at their agreement. Or whatever had transpired i do not know. I am simply speculating. Now, i hardly speculate but forgive me this one time. But what he said next -that, i heard clearly....He said ;"Lawyers want to involve themselves in everything. They are very stupid . They think they know everything."I was not angry when i heard this. I was simply intrigued. I remembered a saying i once heard; "Everybody hates lawyers (until they need one)". People hate lawyers until they need one. This hatred can be seen everywhere. Shakespeare once said "lets kill all the lawyers" ---Yeah>>>that bad! 

Some lawyer , who was obviously tired of all the abuse once said ;"Why does everybody hate lawyers ? Give us a break." I laughed out loud. It fascinates me really, the way people hate lawyers yet they turn to them when they need help putting out their fires. Or better yet when they need someone to fight the legal battles for them. How interesting-That moment when somebody realizes they actually need a lawyer. Glorious!!!!Lawyers are legal practitioners in as much as doctors are medical practitioners- the only difference is that lawyers take care of someone's legal health while doctors take care of physical and mental health.Everyone is entitled to legal representation regardless of the fact that they may be a murderer or a thief or have simply been wrongfully accused. Lawyers do not deal with criminal cases only by the way, they also represent that single mother whose husband does not want to pay the maintenance for the kid, they also represent that vendor who has been locked up in jail trying to put food on the table, they also represent that worker that has been unfairly dismissed. The other lawyer also has to represent that father who refuses to pay maintenance and that big Corporation that refuses to pay workers and exploits them. It is all in a day's work. Lawyers are also workers.

No one protests when doctors treats a sociopath, a murderer or that rapist. To everyone it is okay because doctors are simply performing their job. Why can't people understand that lawyers are also performing their jobs when they defend a rapist or a murderer? Even the law itself provides defenses for those things and lawyers simply apply the law!!!! People only realize the importance of lawyers when they are in hot soup. LOL . IT'S OKAY TO HATE LAWYERS...GO AHEAD...UNTIL THAT DAY WHEN YOU NEED A LAWYER. I will be there and I will not say I told you so. No. I will simply be happy for you. Happy that you have someone to represent you as it should be.

I love lawyers. They are the people's advocates. 

xoxo

Ms Vee

OPINION

This is my opinion. Something totally divorced  from my life and law but all the same i will say it. There are some people who are evil. They live to make other people's lives horrible and terrible. It is a shame really because those people never live to be happy either. Certain types of people like those who demand bribes, are involved in corruption , insider dealing and so forth. Those people should be ashamed of themselves because millions of people end up suffering from such. Shoddy services and poor delivery become rife. This must stop. And our voices must be raised higher than ever as we speak out against corruption and all sorts of evils. In ordinary life there are some backstabbers, liars and cheats- Please repent. i will speak out. I will not stay silent

AS OPINIONATED AS BEFORE, AFTER AND FOREVERMORE

MS VEE

my life, law and moot court

For as long as i can remember , i have always been fascinated by debates and politics. I am the kind of girl who can sit in front of the TV and instead of tuning in to the popular soapie , i tune in to BBC, CNN and AL JAZEERA. I want to know what is happening in the current affairs and just to know how the world works. Im not saying soapies do not interest me. Yes they do. Those that have political scandals and so forth. Like The Fixer(a.k.s Scandal)- that Olivia Pope!! Maybe one day I will be an ambassador. Better yet an MP. Who knows maybe become the President. Possibilities are endless. The sky is no longer the limit anymore- anyone can be powerful beyond any measure if they want. One can reach greater heights, all that is needed is passion and hard work. There is going to be struggle but where there is no struggle there is no strength. A person indeed can succeed at anything for which he or she has unlimited enthusiasm. forgive my digression , let me go into the heart of my article.

A moot court is a mock trial whereby law students present their arguments or rather submissions before judges at law schools. For me , moot court is the most exciting thing that ever happened to law school students. A moot court to me represents unlimited opportunities for me to showcase my talent and the power of persuasion. If  could have it my way, I would have preferred a law school where moot court is compulsory from first year. Unfortunately at my school, moot court is voluntary and most people do not recognise its value. Moot court is a chance for law students to nurture their confidence when standing in front of the judges. I had occasion to take part in a moot court competition at my school not so long ago. Of course i thank one of my friends for her constant motivation and encouragement. Had it not been for her i probably would not have participated- Not because i lacked interest, but because sometimes a little nudging can work wonders. So that little girl in law school nudged me in the right direction. It was quite a good experience and I cannot say i am bitter because i did not qualify. Blame it on little preparation and some nerves . And little tutoring, if at all we had any mentorship. Mentorship is very important when one undertakes mooting. In fact on top of enthusiasm it is best to have a mentor or a coach who teaches you how it all goes. I did not know that. Now i do. I hope to be better in the next rounds. 

Wish me all the best. Because i love mooting. It is my passion. And now i know that I am adequate. I can be great. Above all, I can be a moot champion.

xoxo

Ms Vee

SADC and Me

 Recently I have been doing a lot of research on SOUTHERN AFRICAN DEVELOPMENT COMMUNITY a.k.a SADC trying to figure out what it is all about. SADC continues to make headlines for all the wrong reasons. If SADC was a celebrity i think it would say; "No publicity is bad publicity so let me enjoy the spotlight!!!" Unfortunately SADC regulates the southern african region and any bad publicity reflects badly on the region. SADC consists of 15 member states which are ZIMBABWE, SOUTH AFRICA, BOTSWANA, NAMIBIA, SEYCHELLES, MADAGASCAR, MALAWI, ANGOLA, MAURITIUS , TANZANIA, SWAZILAND, LESOTHO, DRC,  MOZAMBIQUE & ZAMBIA. SADC has got institutions as well namely : THE SUMMIT OF THE HEADS OF STATE AND GOVERNMENT, , SUMMIT TROIKA, SADC TRIBUNAL, SADC COUNCIL OF MINISTERS, SECTORAL & CLUSTER MINISTERIAL COMMITTEE, STANDING COMMITTEE OF SENIOR OFFICIALS, SADC SECRETARIAT, SADC NATIONAL COMMITTEES AND SADC PARLIAMENTARY FORUM. Of all these institutions, one particularly stands out :THE SADC TRIBUNAL. It has made headlines across Africa for various reasons. SADC leaders came under heavy scrutiny after it suspended the Tribunal in 2010. This was after Zimbabwe had questioned the leitimacy of the Tribunal after a series of judgments had been passed against Zimbabwe by the Tribunal. Zimbabwe made representations that the Tribunal had not been properly established and that due to this , the Tribunal was not recognised institution of SADC. This decision caused an uproar in Africa. This however did not deter the leaders from leaving the Tribunal suspended up to now. In 2014, the SADC leaders signed a new protocol which has reduced jurisdiction. Individuals do not have locus standi to appear before the court . This is indeed a drastic change. The new Protocol has not been signed by all SADC member states so it is going to be a while before SADC gets a new Tribunal.

xoxo

Ms Vee

my everyday life and law

The law has a huge impact on my life now whether I like it or not. Since I don't have a car I use public transport. Just this other day someone was asking about the Willovale scandal in Zimbabwe. Thank God  I had researched on it the other day when I was doing a research paper on corruption. I will explain in this post what the Willowvale scandal is and which year it took place.

The Willowvale Scandal in 1988 is one of the widely known corruption scandals in Zimbabwe. In October 1988, member of parliament Obert Mpofu accidentally received a check from a car company in Willowvale whereas the check had actually been intended for Alford Mpofu, a friend of the then Industry Minister  Callistus Ndlovu.  Obert Mpofu took the check to Geoffrey Nyarota, editor of the state-owned Bulawayo Chronicle. The paper had already built a reputation for aggressive investigations into corruption at all levels of government, and began to investigate[2] In 1988, a scandal was uncovered which became known as the Willowgate scandal in which senior government ministers used their positions, authority and power to cheaply buy scarce motor vehicles from a vehicle assembly plant, known as Willowvale Mazda Motors Industry and sold the same cars to third parties at a profit of 200%[3]. This was clearly a case of illicit enrichment at the expense of the citizens of Zimbabwe as at that point importing a car to Zimbabwe was only done by Willovale Motors. The rest of the country was thus prejudiced as the ministers sought to gain riches at the expense of the general populace clearly violating economic rights. The revelations shocked the nation and the President set up a Commission to investigate these allegations and many senior government officials were named in the scam and one of the Ministers implicated was the late Maurice Nyagumbo, who out of shame committed suicide in 1989 by drinking pesticide[4]. The Commission comprised of three people and was referred to as the Sandura Commission. The Washington Post reported that the commission's hearings "struck a deep chord" in Zimbabwe, where citizens had grown to resent the perceived growing corruption of government[5].

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[1] http:/Wikipedia.org

[2] ibid

[3] ibid

[4] ibid

[5] ibid

Law school family and me

I made a lot of friends in law school. But then again I can't really say friends. I have made family in law school. Tears are flowing down my face as I write this blog. I was close to this boy in law school. Ours was a unique friendship but then he got sick. Liver problems. We used to text back and forth when he was in hospital. He said I was always happy so he needed to tap into some of that happiness. We would talk for hours on end just making him feel better. Come and. Tell. The nurses to stop injecting me  hê would say in jest. I am coming soon , would be my reply. When they said he was dead I couldn't believe my ears. Dead? How? Why? I cried a lot . I was hurt beyond words. Such a promising future lawyer. Such a brilliant mind. Gone just like that...all up in smoke. I cannot go on...

Friendship leads to a bond. A bond that cannot be broken.....

Till I see you again, R.I.P law school friend

My life and Labour law

In Zimbabwe the supreme court recently clarified the position on Labour law. They ruled that under common law employers and employees are equal before the law. Now a lot of people have been asking me about the case and I realised that people are confused and are not sure what that means. So I will explain in detail the whole thing. Some were asking why the employees in the case can't appeal. So for people to understand I will begin from the facts of the case and also explain the law fully.

 The case of DON NYAMANDE & KINGSTON DONGA V ZUVA PETROLEUM (PRIVATE) LIMITED SC 43/15 has caused a lot of outrage among the working class. At law, the Supreme Court judges were merely interpreting the law nothing more nothing less. From a legal point of view, the Supreme Court judges did nothing wrong or out of this world. In his book, ”An Introduction to Law”, Madhuku[1] points us to two theories of law, the positivist theory and the natural law theory. Most legal systems subscribe to the positivist theory which we also subscribe to and is our prevailing doctrine of law. The positivist theory of law says law is law, regardless of its moral content and regardless of whether it is just or unjust. The positivist theory distinguishes law as it is from law as it ought to be[2]. There is, therefore, no such a thing as an unjust law, a bad law or an immoral law under positivism. What law is is one thing, but its goodness or badness is another[3]. Madhuku further explains that under positivism when answering the question – what does the law say in this situation? – One does not attempt to establish what is just or morally acceptable in the given situation. Instead, one must simply ascertain the applicable rule of law, regardless of whether it is seemingly just or unjust, fair or unfair, moral or immoral. What matters is whether or not it is a rule recognized and enforceable by the state. If it is enforceable by the state, it is law. So in this instance the Supreme Court judges simply ascertained the law, both at common law and in the provisions of the Labour Act and came to the conclusion that they did.

THE FACTS OF THE CASE[4]

The case was an appeal from a judgment of the Labour Court delivered on 28 March 2014 allowing termination of the appellants’ employment contracts on notice. The facts of this case are as follows. The appellants were employed by BP Shell as supply and logistics manager and finance manager before BP Shell sold its services to Zuva Petroleum, the Respondent. The appellants were transferred to the new undertaking without derogation from the terms and conditions of employment that they enjoyed when they were under BP Shell. In November 2011 the Respondent offered its employees, including the Appellants, a voluntary retrenchment package which was declined. Following the refusal of the voluntary retrenchment package in December 2011, the Respondent served each of its employees, including the Appellants, with a compulsory notice of intention to retrench. The appellants and the respondent could not agree on the retrenchment terms.

However, the parties failed to agree on the terms of retrenchment leading to a referral of the dispute to the Retrenchment Board. As a result, in May 2012 the Ministry of Labour and Social Services directed the parties to carry out further retrenchment negotiations for another twenty-one days. Before the expiry of the twenty-one days, the respondent wrote letters to the appellants, terminating their contracts of employment on notice, as was provided for in the contracts of employment signed by both parties, with effect from 1 June 2012.  The respondent paid the appellants cash in lieu of notice and thus terminated the employment relationship. The appellants approached a labour officer, contending that their employment contracts had been unlawfully terminated. The labour officer failed to resolve the matter and referred it to compulsory arbitration. The arbitrator concluded that the termination of the contracts of employment was unlawful because the appellants had not been dismissed in terms of a code of conduct. The respondent appealed to the Labour Court. In its judgment on the appeal, the Labour Court had this to say: “In my view, therefore, the submission that section 12B came to do away with the possibility of terminating a contract of employment on notice is a misunderstanding of the law as it stands. In any event, the provisions of section 12(4) of the Act are clear and allow no ambiguity as also the provisions of section 12B. None of the sections have the effect of doing away with the termination of a contract of employment on notice.” In essence, the Labour Court came to the conclusion that neither section 12B nor section 12(4) of the Labour Act abolished the employer’s right to terminate employment on notice[5]. The Supreme Court agreed with this assertion by the Labour Court.

The appellants, as expected were aggrieved by the judgment of the Labour Court and appealed to the Supreme Court on the grounds[6] that the Labour Court erred and seriously misdirected itself on a question of law by upholding the termination of the appellants’ contracts of employment on notice and failing to find such termination to be unfair dismissal. The Appellants further argued that the Labour Court erred and seriously misdirected itself on a question of law in failing to realize as it should have done that section 12(4) of the Labour Act [Chapter 28:01] does not provide for the termination of a contract of employment on notice and that any such purported termination is contrary to section 12B of the Labour Act [Chapter 28:01].  Further the Appellants stated that the Labour Court erred at law in allowing termination on notice as that amounts to allowing an employer to terminate employment for no justifiable and valid cause. The appellants thus sought the setting aside of the Labour Court judgment and its substitution with that of the arbitrator from the Supreme Court.

PROVISIONS OF THE LABOUR ACT IN QUESTION

SECTION 12 B

Section 12B (1) of the Labour Act states that; “every employee has the right not to be unfairly dismissed.”The same section, at subsection (3) lays out the instances whereby an employee is said to have been unfairly dismissed. An employee is deemed to have been unfairly dismissed if;” the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;” or “if, on termination of an employment contract of fixed duration, the employee— (i) had a legitimate expectation of being re-engaged; and (ii) another person was engaged instead of the employee.”

SECTION 12(4)

Section 12 (4) of the Labour Act is structured as follows: “Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be—

(a) three months in the case of a contract without limit of time or a contract for a period of two years or more;

(b) two months in the case of a contract for a period of one year or more but less than two years;

(c) one month in the case of a contract for a period of six months or more but less than one year;

(d) two weeks in the case of a contract for a period of three months or more but less than six months;

(e) one day in the case of a contract for a period of less than three months or in the case of casual work or seasonal work.”

These are the provisions of the labour Act that were under scrutiny or as some called it; these were the labour laws under trial at the Supreme Court.

ISSUES FOR DETERMINATION BY THE SUPREME COURT

The Supreme Court stated that it appeared on the papers of the case that the bone of contention between the parties was the legal status of the employer’s common law right to terminate an employment relationship on notice. The Judge noted both Counsels (L Madhuku for the Appellants and Advocate T Mpofu for the Respondent) were in agreement that; “…once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. The point of departure appears to be that the appellants, while acknowledging that the employer’s right once existed, argue that it has since been abolished. The respondent contends that the employer’s right has not been abolished and still subsists[7].”

The appellants contended that section 12B of the Labour Act abolished the employer’s common law right to dismiss an employee on notice. The appellants, in paragraph 2 of their heads of argument, made the submission that;”In enshrining the concept of unfair dismissal in section 12B, the Labour Act [Chapter 28:01] is outlawing any termination of employment for no reason. Accordingly, the purported termination of the appellant’s contracts of employment was unlawful on account of being a contravention of section 12B of the Labour Act [Chapter 28:01][8].”On the other hand, the respondent argued that the common law right to dismiss an employee on notice has not been abolished by s 12B of the Act and is extant. The respondent further argued that s 12(4) of the Act reinforces its contention that that right exists, and that the section regulates the exercise of the right. 

The critical issue for determination by the Supreme Court in this matter was therefore what meaning should be ascribed to section 12B and 12(4) of the Act. In particular, the Supreme Court had to determine whether section 12B of the Act, on a proper reading of that section, abolishes the employer’s common law right to terminate employment on notice.

THE JUDGMENT

Determination on the provisions of Section 12 B

In the judgment Chidyausiku CJ said that; “As I have already stated, it is common cause that once upon a time both the employer and the employee had a common law right to terminate an employment relationship on notice. That common law right in respect of both the employer and the employee can only be limited, abolished or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of Parliament. I am satisfied that section 12B of the Act does not abolish the employer’s common law right to terminate employment on notice in terms of an employment contract for a number of reasons.”(Emphasis mine)

The Chief Justice made reference to the time-honoured and golden rule of statutory interpretation which states that one should give the words of a statute their primary meaning. Applying this golden rule of statutory interpretation, the court held that the words in section 12B of the Labour Act neither expressly nor by necessary implication abolish the employer’s common law right to terminate an employment relationship by way of notice. The court also referred to the principle of statutory interpretation which states that a statute cannot effect an alteration of the common law without saying so explicitly.  To reinforce this principle , the court cited with approval the case of Phiri and Ors v Industrial Steel Pipe (Pvt) Ltd[9], wherein it was stated that ;“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[10]…..”

In interpreting the provisions of Section 12B of the Labour Act, the court stated that as the main heading of that section reveals, it only deals with dismissal and the procedures to be followed in those instances where an employment relationship is to be terminated by way of dismissal following misconduct proceedings. The court held that termination of employment on notice is not among the conduct that section 12B of the Act outlaws as unfair labour practice. The court also referred to Section 8 of the Labour Act which deals with unfair labour practices by the employer. Since termination on notice is not among the unfair labour practices in that section, the court stated that it is apparent that termination of employment on notice is not among the conduct outlawed by section 8 of the Act.

In addition, the court held that a proper reading of section 12B of the Act reveals that the section deals with the method of termination of employment known as “dismissal” which is not the only method of terminating an employment relationship as there are several methods of terminating employment. Based on that the court held that; “the appellants’ case is predicated on the proposition that dismissal means all forms of termination of employment. Put differently, all terminations of employment are dismissals. This proposition is not tenable on the authority of the above cases. That proposition is clearly erroneous.” The court further held that the proposition that an employer has a right to terminate an employment relationship on notice in circumstances other than dismissal for misconduct finds further support in the case of Gertrude Kwaramba v Bain Industries (Pvt) Ltd[11], where it was held that an employer has the right to terminate the employment contract on notice in no fault situations. This was the same reasoning in the case of Chirasasa and Ors v Nhamo NO and Anor [12] where the court held that; “In this case, the appellants agreed that there was no act of misconduct alleged against them. The parties had failed to agree on the new terms and conditions of employment proposed by the second respondent to meet the operational requirements of its business. The second respondent had a right to terminate the contracts of employment with the appellants by giving them one calendar month’s notice and could exercise it without obtaining prior written approval of the Minister. The decision in Kwaramba’s case supra is, in my view, correct ...”

Based on this the Chief Justice held that; “I am satisfied s 12B of the Act does not deal with the general concept of termination of employment. It concerns itself with termination of employment by way of dismissal in terms of a code of conduct. It sets out that which must be followed or done in terms of either an employment code of conduct or a national code of conduct. It does not concern itself with termination of employment by ways other than dismissal[13].”

Determination on the provisions of Section 12 (4)

The Court held that the wording of section 12(4) of the Act is so clear that it leaves very little room, if any, for misinterpretation. Section 12 (4) governs the time periods that apply when employment is being terminated on notice as shown above. The court held that it stands to reason that the notice periods do not apply when an employee is dismissed because in instances of dismissal no notice is required. The court had this to say; “The periods of notice referred to in section 12(4) of the Act can only apply where there is termination of employment in terms of a process involving the giving of notice provided for in a contract of employment.” The learned judge accepted the appellants’ contention that section 12(4) of the Act does not create a right to terminate employment on notice. The respondent also agreed with this contention stating that the right to terminate employment on notice is created by common law and not by statute or section 12(4) of the Act. The respondent contended that section 12(4) of the Act simply regulates the exercise of that right conferred on the employer by common law. As such the court held that Section 12(4) of the Labour Act explicitly applies to both the employer and the employee stating that; “There is no possible explanation, and none has been advanced, why, despite the explicit language of the section, it should apply to the employee only and not to the employer; or why the section should exist to regulate a non-existent right….The presumption is that Parliament must be taken to have intended its enactments to have meaning.”

Consequently the Supreme Court held that Section 12(4) of the Act can only have meaning if there is a substantive right. in this case the Court held that the substantive right to which  section 12 (4) pertains is  the common law right to terminate employment on notice; “This is especially so when one considers that all that section 12(4) of the Act does is to facilitate the exercise of an existant common law right.  It is for these reasons that I agree with the conclusion of the Labour Court that the respondent was entitled at law to give notice terminating the employment of the appellants in terms of the contracts of employment between the parties. Accordingly, the appeal fails and is hereby dismissed with costs[14].”

GARWE JA; HLATSHWAYO JA and GUVAVA JA were all in agreement with the Chief Justice meaning that the Judges unanimously agreed that the common law position which places employers and employees on an equal footing in terms of termination on notice is still operational. This effectively means that employers can now terminate the contracts of employment they have with their employees without giving any reason and without any retrenchment packages.

THE AFTER EFFECTS OF THE CASE

Within moments of delivery of the judgment in the Don Nyamande case, the case had already gone viral in Zimbabwe. Legal experts warned that the case threatened job security in Zimbabwe as employers now could terminate the employees’ contracts of employment without using retrenchment procedures. Some people even wondered why law students in the universities are still learning labour law if the labour laws are as unfair as this. Some also argued that all the employees in Zimbabwe who are permanent have been reduced to temporary workers in light of this judgment. Reports by the media suggest that a lot of employees have been laid off work after the Supreme Court ruling in this case showing that employers are taking advantage of this ruling. Even before the Supreme Court had delivered judgment on the Don Nyamande case, employers were already terminating the employees’ contracts of employment on notice basing on the Labour Court judgment. Nemukuyu[15] reported that several companies had abandoned the normal retrenchment procedures in favor of the cheaper way of terminating contracts on notice. Investigations by the Herald revealed that Unifreight Limited laid off at least one hundred employees using the Labour Court’s ruling that an employer can terminate a contract on notice in the same case of Don Nyamande and that China-Africa Corporation had terminated twenty contracts in the same fashion[16].

“Court ruling costs 700 jobs in 5 days” reads the Herald[17] headline just days after the Supreme Court delivered judgment in the Don Nyamande case. These are indeed shocking statistics in a country that is faced with employment problems and whereby a lot of people are currently unemployed. It is reported that Government had to hold a crisis meeting for stakeholders during which workers proposed that the Presidential Powers be invoked to protect them amid reports that over 700 people have lost their jobs in less than five days following the ruling. The ruling has indeed shaken the labour industry leaving many jobless and clueless as to what to do next. The Tripartite Negotiating Forum has come up with a report on the judgment, the implications and possible remedies. On the remedies, the Forum proposed two schools of thought with the first school of thought suggesting that the Minister of Public Service, Labour and Social Welfare should come up with a Statutory Instrument that protects employees in terms of section 17 of the Labour Act. The Forum suggests that the Minister of Labour should recommend to the President to invoke his Presidential Powers so that the implications of the judgment can be dealt with to help those that have already been terminated from employment[18].The Minister of Labour said that while employers had a right to decide their future, it was not proper for employers to suddenly cut off an employee’s contract with no benefits after serving the same company for several years; “Put yourself in the shoes of somebody who had been working for 20 to 25 years and suddenly without reason, they are told in three months you are off…No, we need to look at that and we are going to take appropriate action[19].”

Some people are of the view that the scales of justice must be evenly balanced between both employers and employees. What is extremely important to note is that mostly it is employees who terminate contracts of employment on notice usually on 24 hour notice and employers are left with little or no remedy as the cost of litigating far exceeds the damage suffered by an abrupt departure from employment[20]. Proponents of this argument of equality between employer and employee say that this case has brought about a turning point in that the employer is also at liberty if done within the confines of the law to terminate a contract of employment on notice[21]. Labour laws tend to favor the employee leaving the employer with little redress or no redress whatsoever as shown by the above scenario. It is noted that this may be a critical school of thought and necessary intervention from the judiciary that is awake to the harsh economic environment in which employers are operating in[22] as was acknowledged in the case of Zimbabwe International Trade Fair Company v Viking Plastics (Private) Limited & Another[23] whereby the court held that;“Economic challenges, liquidity crunch, viability problems, competition – the list is not exhaustive for these and other phenomena which have conspired to hamstring a lot of business entities in this country with the consequent result of threatening their very existence. Too ghastly to contemplate are the possible consequences.”

It is also posited that the challenge in the view taken by the court n the Don Nyamande case is that it may be construed as constituting a material departure from the concept of rules of natural justice that define our employment jurisprudence[24]. A key ingredient of such being the right to be heard before adverse decisions are taken against an employee. The question now that boggles the mind is could termination of a contract of employment be exercised without regard to the principle of natural justice expressed in the maxim audi alteram partem rule[25]? The audi rule is a common law principle which has been applied by courts in proceedings as part of rules of natural justice, to grant an opportunity to be heard to persons whose rights, liberty, property, or legitimate expectation have been adversely affected. The question arises as to whether these two positions are parallel to each other or simply speak the same language. That is, when a contract of employment is terminated on notice by either party it remains what it is, a contract, a commercial transaction, from which either party to it may choose to withdraw. This position finds ample legal support in the case of Printing Registering Co v Sampson[26]where it was stated that; “If there is one thing which more than any other public policy requires, it is that men of full age and competent understanding shall have 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.”

THE LEGAL POSITION

The ruling in the Don Nyamande case has indeed caused a lot of outrage and shock. But, is the judgment really as shocking as it is made out to be? Especially among the lawyers and others who know the law. Surely the learned colleagues know that law is law regardless of its goodness or its badness. Law is law while its fairness, morality and justice is another thing. So the Supreme Court judges merely interpreted the law as it is. However, such a reaction can be understood in light of the fact that Zimbabwean labour law jurisprudence has always been inspired by tenets of natural justice and has always protected the workers. However, this is not the first time that such a judgment as this one has been handed down by our court. In the case of Gertrude Kwaramba v Bain Industries[27], the court held that an employer has a right to terminate the employment contract on notice in no fault situations.  This case was followed in Chirasasa and Ors v Nhamo NO and Anor[28] where the court held that:  “In this case, the appellants agreed that there was no act of misconduct alleged against them. The parties had failed to agree on the new terms and conditions of employment proposed by the second respondent to meet the operational requirements of its business. The second respondent had a right to terminate the contracts of employment with the appellants by giving them one calendar month’s notice and could exercise it without obtaining prior written approval of the Minister.”

The position at common law is that both the employer and employee have the right to terminate a contract of employment on notice. Employers felt that they were being treated unfairly as under Zimbabwean jurisprudence this right seemed to have been extended to employees only. As the judges correctly interpreted this rule of common law is still operational. Under statutory interpretation, there is a presumption that a statute is not supposed to alter existing law beyond what is clearly stipulated either expressly or impliedly in the statute itself. Existing law includes both the common law and statute law. This means wherever possible statutes should be interpreted in conformity with existing law.  The court will not easily assume that a statute was meant to alter the existing law beyond what is clearly provided for in the said statute. Where there are two possible interpretations to a statute, one that results in the alteration of the existing law and the other which would be harmonious with the existing law the court should adopt the latter. However, where the only reasonable interpretation is that the legislature intended to alter the existing common law or an existing statute, then the presumption does not apply.

The legislature may make express indication in the statute that the law is being altered or such intention may be implied. In the Don Nyamande case therefore , the court was supposed to interpret the Labour Act under the presumption that the legislature does not intend to change common law unless it expressly says so as was stated in the case of Phiri and Ors v Industrial Steel Pipe (Pvt) Ltd (referred to above) ; “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 …”(emphasis mine)The Supreme Court was thus bound by common law and the legislature has not made any express intention to alter the common law. Unless and until they do so, the position at common law is that employees and employers are equal and either of them can terminate a contract of employment.

In the interpretation of the law, the court in the Don Nyamande also applied the literal rule in interpreting the provisions of the labour Act. Under statutory interpretation there is a Presumption against injustice or unreasonableness. This presumption states that the court generally does not have authority to question the reasonableness or propriety of legislation. So where the words of a statute are clear and unambiguous and capable of only one meaning, the court, will normally, give effect to them for such meaning must be what was intended by the legislature as the court did in the Don Nyamande case. However, where the words of a statute are capable of two meanings, one meaning which leads to unreasonableness or injustice while the other does not, there is presumption that the legislature did not intend the meaning which leads to unreasonableness and injustice. the judge in the Don Nyamande case expressly stated that; “It is also a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly” and cited with approval the  case of Principal Immigration Officer v. Bhula[29] where it was held that; “It has been repeatedly laid down by this court that where a statute is clear the court must give effect to the intention of the legislature, however harsh in its operation may be to individuals affected thereby. Where, however two meanings maybe given to a section and the one meaning leads to harshness and injustice while the other does not, the court will hold that the legislature rather intended the milder than the harsher meaning.”

The literal rule of interpretation has always been referred to by the courts. The court in Van Heerden v. Queens Hotel (Pvt) Ltd[30] stated that ;“…while there is always a presumption that Parliament never intended an unreasonable result, if from the language of the statute it is plain what the intent of the legislature is, the court must give effect to it, no matter how unreasonable the result may be. This court has no power to adjudicate on the reasonableness of an act of Parliament.” In the case of S v. Takaendesa[31] the court said that; “The mere fact that to give the words their clear and unequivocal meaning may, in certain unforeseen circumstances, cause inconvenience and hardship is no justification for a court of law assuming the mantle of the legislature and itself amending the statute. The function of the court is to declare the law as given by the legislature and not to make it.”

CONCLUSION

The court in the Don Nyamande case was simply interpreting the law as it is in Zimbabwe. It now falls on the legislature to amend the provisions of the Labour Act thereby altering the common law to change the current position that prevails. The Zimbabwean government indeed operates on the principle of separation of powers whereby the judiciary, the executive and the legislature have different functions. The legislature makes law, the executive implements it and the judiciary merely interprets it in the event of a dispute as it did in the Don Nyamande case. Now the ball is in the court of the legislature on whether or not to amend the Labour Act or leave it as it is. The world , however, is surely bleak for the Zimbabwean worker as the employee can just be terminated on notice and can leave the workplace empty handed even after having worked for the same company for countless years. It is indeed a sad chapter in the history of Zimbabwe’s labour laws. This brings to mind the times when slavery existed in the world and slaves had to operate on the mercies of their master. It is indeed a jungle out there for the workers at the moment. The Supreme court, hence, correctly and appropriately interpreted the law.

 It never rains but it pours for some of the employees who have had their contracts terminated on notice. Judging from media reports, a lot of people are now jobless adding on to the countless jobless people that are already in the market. Some however are of the view that employers and employees should be on an equal footing and as such employers should be allowed to terminate the contracts of employment on notice. That is the freedom of contract after all, they argue. With the current economic problems that many employers are facing, the ruling is a gift that has been bestowed upon them by the courts. Most employers are bankrupt and could not afford to give retrenchment packages to their employees. They now see this as a chance to lay off workers they were not able to lay off before this ruling for fear of being sued for unlawful termination. As it stands the doors to sack a whole lot more workers are ajar and employers are seizing the opportunity with both hands. It remains to be seen what action the Ministry of labour will take following the recent developments. It also remains to be seen whether the Appellants will take the case to the Constitutional Court and challenge the constitutionality of the law that the Supreme Court relied on.

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[1] Madhuku L: An Introduction to Law, Weaver Press 2010

[2] Ibid page 2

[3] Ibid page 2

[4] DON NYAMANDE & KINGSTON DONGA V ZUVA PETROLEUM (PRIVATE) LIMITED SC 43/15

[5] DON NYAMANDE & KINGSTON DONGA V ZUVA PETROLEUM (PRIVATE) LIMITED SC 43/15

[6] Ibid page 3

[7] Don Nyamande case above

[8] Don Nyamande case above at page 4

[9] Phiri and Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (12) ZLR 45 (S) at 49

[10] Don Nyamande case above at page 6

[11] Gertrude Kwaramba v Bain Industries (Pvt) Ltd SC 39/01

[12] Chirasasa and Ors v Nhamo NO and Anor 2003 (2) ZLR 206 (S)

[13] Don Nyamande case above at page 10

[14] Don Nyamande case page 13

[15] Nemukuyu Daniel: Hundreds lose jobs as firms flout labour laws, The Herald May 11 2015

[16]ibid

[17] Chipunza Paidamoyo : Court ruling costs 700 jobs in 5 days, The Herald, June 22 2015

[18] ibid

[19]Chipunza Paidamoyo : Court ruling costs 700 jobs in 5 days, The Herald, June 22 2015

[20] A critical overview of the Labour Court’s decision in Zuva Petroleum (Pvt) Ltd v Don Nyamande and Another LC/H/195/14 accessed at www.chinawalawchambers.com

[21] A critical overview of the Labour Court’s decision in Zuva Petroleum (Pvt) Ltd v Don Nyamande and Another LC/H/195/14 accessed at www.chinawalawchambers.com

[22] ibid

[23] Zimbabwe International Trade Fair Company v Viking Plastics (Private) Limited & Another HB 83-13 at page 1.

[24] A critical overview of the Labour Court’s decision in Zuva Petroleum (Pvt) Ltd v Don Nyamande and Another LC/H/195/14 accessed at www.chinawalawchambers.com

[25] ibid

[26] Printing Registering Co v Sampson, 19 Eq. 462 at p. 465

[27] Gertrude Kwaramba v Bain Industries (Pvt) Ltd SC 39/01

[28] Chirasasa and Ors v Nhamo NO and Anor 2003 (2) ZLR 206 (S)

[29] Principal Immigration Officer v. Bhula 1931 AD 323 @ 336-7

[30] Van Heerden v. Queens Hotel (Pvt) Ltd 1973 (2) SA 14 RAD 16

[31] S v. Takaendesa 1972 (4) 72 (RAD) 77