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Read and Analyse the Judgment

The law reform process is currently topical in the countrys


socio economic development. The judgement in the case of
Nyamande and Donga vs Zuva petroleum, under SC 43/15
reviewed gaps on part of of the law which were exposed by the
supreme court ruling. The ruling indicated that an employer has
a right to terminate contracts of employment on notice.
Following this ruling , many employers whose companies were
experiencing challenges proceeded to fire their employees en
masse.
The judgement in this case is clear when viewed from the point
that is based upon common law. However, when seen from a
moral point of view, the decision is all wrong. Instead I tend to
go with the position offered by the line labour centres who say
that the best practice route would via corrective legal options
facilitated through the tripartite negotiating forum; a body
comprising representatives from government, labour centres
and employers. To my understanding, this option would provide
a cushioning effect for the parties concerned by presenting a
win/win situation for all.
In my view, their should be be a replacement of compulsory
arbitration with voluntary arbitration in the Act. The rigid which
existed in the current labour law with regard to termination of
employment, a bill has to be tabled in parliament which will
emphasize measures that would create a win-win situation for
both business and labour. Generally, when law was interpreted
in this case it was an eye opener for law legislators who should
concur that an environment encourage the growth of business
would act as a catalyst for economic growth.
As such, this judgement reflected its clear intension as is in the
labour act. In similar cases between Halsbury LC in Bank of of
England Vs Vaglino (1891) C A 107 at 120 it was heard that,
There is a presumption, in the interpretation of statute. That
Parliament does not intend a change in the common law, unled
it express its intention with irresistible clearness or if follows by

necessary implication from the language of the statute in


question that there in intended to effect such alteration in
common law; far construing the statute by adding to it words
which are neither found there in nor for which are neither
found in the language of the statutes itself is to sin against one
of most familiar rules of construction. From this perspective
view the judgement was given fair considering what the law
meant.
In case of the judgement of Zuva Petroleum vs Nyamande and
Donga I note that the bill had overlooked the need to provide
for retrospective compensation for employees who lost their
jobs following the Supreme court ruling on termination of
employment contract a notice hence measures were not taken
to accord gratuity to the affected employees.
Although the appellants were offered a voluntary retrenchment
package by the respondent on 21 November 2011 and failed to
agree to the terms, the law portrays that without a minimum
package as is currently the case, employers are of the view that
they potentially carry an unlimited liability in the event of
retrenchment. This controversy generate largely arises from the
misleading of the judgement that employers now have the right
to terminate employment in all circumstance on simply giving
three months notice.
The employers unfettered power to terminate contacts of
employment on notice is underpinned by the doctrine of
freedom contarct, in terms of wjich the contracting parties are
deemed to have entered into the agreement as equals and with
open eyes. What this position obviously ignored was the
discrepancy in the bargaining power between employer and
employees and the fact that the employment relationship
provided income to the family unit for the one party and
provide a cost of production or service for the other.
As far as fixed-term contracts of employment are concerned the
common law principle is that notice may not be given before
expiration of the term unless the contrary is agreed. Notice of

expiry of contract need not be given, unless the employee has


grounds for believing that it will renewed.
In that judgement SC 43/15 the Supreme Court simply affirmed
what it has pronounced in previous judgements such as
Madoda Vs Tanganda Tea Company Ltd 1999 (1) ZLR 374 (S),
Samuriwo Vs Zupco (1) ZLR 385 (H), PTC v Mahaci 1997 (2) ZLR
71 (H) that the right to terminate employment on notice is
avoidable to employers in certain circumstance. Therefore,
nothing new has been introduced by the judgement. Whether
or not the employers common law of right to terminate an
employment relation on notice was still part of our law. It was
argued by the appellants lawyer Mr L Madhuku, with him C
Mucheche on behalf of employees that section 12B of the
Labour Act chapter 28:01 had abolished the right. The
supreme Court disagreed. In the case of permanent
employment the principle at common law is that the parties
right to terminate on notice is unfettered without limit or
controls.
Employers are notrequired to show good cause for terminating
the employment or inform the employee of the reasons for the
termination or to follow any special procedure before
termination. All the employer has to do is give notice. The
employers unfettered power to terminate contracts, of
employment on notice is underpinned by the doctrine of
freedon contract, in term of which the contracting parties are
deemed to have entered into agreement as equals and with
open eyes. Whatthis position obviously ignored was the
discrepancy in the bargaing power between employers and
employees and the fact that employment relationship provided
income to the family unit for the one party and provided a cost
of production or service for the other. As far as fixed-term
contracts of employment are concerned the common law
principle is that notice may not be given before the expiration
of the term unless the contrary is agreed. Notice of exipiry of
contract need not to be given, unless the employee has
grounds for believing that it will be renewed.

In this scenario of judgement the Supreme Court of Zimbabwe


has been concerned with defining the employers right to
terminate employment on notice in light of the existing
legislative provisions. In its elaboration the Highest court of the
land decision was that an employees contract of employment
cannot be terminated on notice if the reason for termination is
an act of misconduct or if the reason for termination fall within
the definition of retrenchment.
Critical examination into the judgment of Nyamande and Donga
vs Zuva Petroleum (Pvt) Ltd matter it was not argued that the
facts of the case were such that the employer did not enjoy the
right to terminate on notice. In other words, it was not argued
on behalf of the employees that instead of resorting to
termination on notice the employer should have followed the
retrenchment provisions. The employees limited their case to
the argument that the common law right to terminate on notice
had been abolished by the provisions of the Section 12B of the
Labour Act. If the argument had been made that given the facts
of the matter; the re-organisation of the employers operations,
the employer was oblidged to comply with legislative provisons
governing rentrenchments, the court could well have arrived at
a different conclusion. Whilst the employers common law right
to terminate a contract of employment on notice still exist
same has severly been restricted by legislation. It is available in
limited circumstances. A termination on notice is only regular
and proper if the reason for termination is not misconduct, reorganisation of the undertaking, retirement or incapacity of the
employee due to ill-health. In my view the Judgement in
Nyamande and Donga v Zuva Petroleum (Pvt) Ltd has not
change the position.

Thinking on the positive side of the ruling, it will encourage


workers to work harder at their various work places for their
survival. Some of these party workers who belong to the ruling
party used to give employers hard times, knowing that they

could not be dismissed easily but now this is history and the
employers can once again be respected by these misguided
and nave workers. Standard economic theory sees labour law as an
exogenous interference with market relations and predicts mostly
negative impacts on employment and productivity. We argue for a more
nuanced theoretical position: labour law is, at least in part, endogenous,
with both the production and the application of labour law norms
influenced by national and sectoral contexts, and by complementarities
between the institutions of the labour market and those of corporate
governance and financial markets. Legal origin may also operate as a
force shaping the content of the law and its economic impact

Although Zimbabwe had made commitments to the


International Labour Organisation concerning alignment of
some provisions of the Labour Act to ratified conventions in
particular the right to collective bargaining and freedom of
association, hence leading to such judgement ruling by the
supreme court.

Discuss in detail the negative and positive impact of the


judgment on business in Zimbabwe.
A 17 July Supreme Court Judgement No. SC 43/15 ruling giving
employers the right to terminate employment contracts on
three months notice without benefits sparked a wave of
retrenchments in the country putting Zimbabwe socioeconomy, labour laws and costs under spotlight. The ruling
torched off a heated debate on the regional competitiveness of
the Zimbabwean economy in which labour costs have become
a central issue. The wholesale retrenchment that followed the
ruling caused a lot of confusion and pain to thousands of people
desperate to keep their jobs.Broadly, employment laws covers

areas such as employment contracts, treatment of employees,


employ pay, working hours, sickness, absence and time of work
and business transfers and takeovers.
Due to the judgement ruling the government has been forced
into a fast track labour bill amendments were it will adopt
unilateral decision, the move which kill the whole basis of
consensus with social partners and inputs from key stakeholder
in building and negotiating a social contract.
The banking sector has not been spared with this judgement
since they were providing workers with salary based loans. The
development of such, means that loans should now be payable
in three months in line with notice period given to workers
thereby compromising the cash flow in the mainstream
economy and informal sector which is contributing toward the
Zimbabwe socio economy and indigenisation. The magnitude of
inconvenience of reduced repayment period has been
necessitated by the fact that the country did not have voluntary
unemployment credit insurance which could cushion bank
against sudden job losses.
Lack of adequate credit risk mitigation strategies coupled with
the recent job losses have seriously exposed Zimbabwe bank
sector which have high salary based loans. The provision for
involuntary credit insurance is very expensive and has the
effect of pushing up the cost of credit by as much as 12% their
by negatively compromising banking sector business and
indigenisation empowerment in Zimbabwe.
Although the judgement ruling did have an impact negatively to
the workers I would appreciate its positive protection for the
employers rights which are crucial for the Economic growth and
serves as the market economys linchpin. If the rights are
demonstrated in such of this case example the economy is
prone to quick recovery. That is because subsequent increase of
investors trust, resurfacing of entrepreneurial knowledge and
incentives-all of which are essential ingredients for economic
growth.

The 17 July 2015 judgement ruling has become a topical issue


as it is now bring the era of economic reforms. The government
is now pursuing a market-oriented strategy aimed at economic
growth, policy shift which will have significant effects on output
growth.
In this case adjustment is usually seen as merely a
macroeconomic problem because of its stabilisation, which
deals with full restoration of internal as well as external
equilibrium of the Zimbabwe economy. But the main aim of
policy interpretation is larger: it is meant to place the economy
on a new efficient path.
Since most of the companies have adopted the 17 July
judgment ruling firing employees on three months notice, this
policy interpretation can exacerbate social polarisation as the
cost and benefit of law interpretation accumulate differentially
to social groups.
I would conclude this Zuva Petroleun v Nyamande and Donga
indicating that; laws are the product of human creative efforts
and therefore fallible. Laws, like all other human creations, may
or may not be useful, but always produce unintended side
effects. Since every law forces a change in the natural order of
things and, since every law imposes restrictions, and produces
unwanted side effects, the performance, or usefulness of each
law, in terms of its overall effect up the wellbeing of public, can
be dived.