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].

---

[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