At the end of the hearing, the Court dismissed the appeal with costs having determined that it was without merit. It was indicated that the reasons would follow in due course.   

These are they.

The appeal is from the decision of the Labour Court holding that the appellant had no locus standi in the proceedings before it. The question for determination is whether a universitas personarum at common law can substitute itself for a workers committee created by statute and enforce its statutory rights which can only be enforced by a workers committee in terms of the Labour Act.

The facts are common cause.

The appellant is a voluntary association of former members of the Zimbabwe National Water Authority (ZINWA). On 29 January 2009, while presenting the National Budget for the Year 2009, the acting Minister of Finance announced the Government's decision to decentralise the management of the use of water to local authorities with effect from 1 February 2009. As a result of the decision, management of the use of water in Gweru was transferred to the respondent together with the employment of the appellant's members in the undertaking in terms of section 16(1) of the Labour Act (“the Act”). The respondent engaged the appellant's members on terms and conditions inferior to what they enjoyed at the Zimbabwe National Water Authority (ZINWA) immediately prior to the transfer. The appellant took up a complaint of an unfair labour practice with a labour officer alleging that the respondent's conduct was in breach of section 16(1) of the Labour Act. A certificate of no settlement was issued and the matter was referred to compulsory arbitration. The appellant did not act to represent the case of the employees but acted in their place as the possessor of the rights it sought to vindicate. 

In other words, it sued in its name.

On 14 January 2010, the appellant obtained an arbitral award in its favour as against the respondent. The parties approached the arbitrator for the quantification of the award. A hearing was conducted on 7 April 2010 and the arbitrator issued an arbitral award on 30 April to the effect that the award of 14 January 2010 was to be enforced in terms of a table from the Zimbabwe National Water Authority showing the wages and salary rates that the appellant's members enjoyed as at the date of transfer from ZINWA to the Gweru City Council. On 26 May 2010 and 27 July 2010, the arbitrator issued further awards dealing with the implementation of the original award of 14 January 2010. A deadlock ensued between the parties and the arbitrator on the meaning of the awards. On 30 August 2010, the arbitrator issued what he termed an “interpretation award.”

The appellant appealed against the 'interpretation award'. The respondent raised, as a preliminary point, the question whether the appellant had locus standi to sue or be sued.

At the commencement of the hearing, counsel for the respondent submitted that the respondent was no longer challenging the appellant's locus standi. The appeal in that matter was allowed by the Labour Court under judgment no. LC/MD/26/11. Subsequently, the award of 14 January 2010 was quantified by the arbitrator on 9 August 2012. On 22 August 2012, the respondent appealed to the Labour Court seeking an order setting aside the quantification award on the ground that it was a nullity as the appellant was not a legal entity capable of suing and being sued in its own name.

The appellant argued that the Labour Court was functus officio in relation to the locus standi issue. It further argued that the respondent had waived its right to challenge the locus standi of the appellant when it made the concession on the issue at the hearing of the appeal on 14 September 2011. On 20 April 2013, under judgment No. LC/MD/43/13, the Labour Court found that it was not bound by the concession which was wrongly made. It found that its earlier decision was void as the appellant had no locus standi. On this basis, the Labour Court set aside the quantification proceedings.

The appellant was aggrieved by that decision and noted the appeal to the Supreme Court.

The dispute arose from the enforcement of the rights of workers arising from the transfer of an undertaking provided for under section 16 of the Labour Act. The appellant is a universitas personarum, created in terms of its own Constitution, capable of suing and being sued in its own name.

The question is whether a universitas personarum can sue in its own name for the rights of employees provided for under section 16 of the Labour Act.

The applicant approached this court, under a certificate of urgency, seeking a provisional order in the following terms-

“Interim Relief granted

1. That the transfer of applicant to Murewa be suspended until this application is finalized.

2. That if applicant is already in Murewa he be returned to Beitbridge until the application is finalized.

Final Order

1. That the transfer of applicant to Murewa be and is hereby reversed.

2. That the respondents reconsider recommendations and adoption [of] the applicant's transfer from Ministry of Home Affairs to Ministry of Justice and Legal Affairs respectively.

3. That if the respondents oppose the application, costs on a client attorney be ordered against the officer that opposes personally.”

The salient facts of the matter are the following.

The applicant is a police officer holding the rank of Assistant Inspector. For a period of around six (6) years the applicant had been seconded to the Beitbridge Public Prosecutor's office as a public prosecutor. During this period he studied for a law degree through distance education via the University of South Africa. He made quite some progress towards the attainment of his law degree. This encouraged him to seek a permanent transfer to the Ministry of Justice and Legal Affairs. Whilst his application for lateral transfer was under consideration, he was transferred from the Public Prosecutor's office to the Zimbabwe Republic Police. He suspects that one of the magistrates in Beitbridge authored the termination of his secondment. His secondment was terminated on 26 June 2009. In July 2009 the applicant went on vacational leave and was due to report back in September 2009. He did not do so. He states that he fell ill and was on sick leave until 30 November 2009. Whilst he was on sick leave he was transferred to Murewa. He was also arrested for being absent without official leave. He was detained for three days at Beitbridge Police cells. He was taken to Murewa where he was released without charge.  He, thereafter, made his own investigations and he managed, somehow, to lay his hands to a memorandum written by the first respondent to the second respondent recommending his transfer.

The applicant does not explain how he managed to get a copy of this memorandum.

Having read the contents of this memorandum he decided to institute this chamber application.

The applicant was appointed by the first respondent, initially as a lecturer, then later as a Dean of Studies in the same institution.

While she was in occupation of this position, on the 12^th day of December 2012, she received a letter from the second respondent, who is Acting Vice-Chancellor of the first respondent, advising her that the second respondent intended to appoint certain persons to the position of Acting Dean of Agricultural Sciences and Acting Dean of Humanities. She says such appointments are a breach of the express terms, alternatively, the implied terms of her contract with the first respondent.

She said her letter of appointment, as Dean of Studies, granted her authority over the Faculties of Agricultural Sciences and Humanities and Social Studies, and the effect of the purported appointments will limit the scope of her authority insofar as she will only have oversight over certain departments within the Faculty of Humanities.

She also pointed out that in terms of Clause 5.1 of the Faculty of Governance Ordinance 23, the Dean is the Chief Academic, Administrative and Finance Officer for the Faculty. She went on to state that the appointments are unlawful as the first respondent is a statutory body and its members are bound by the provisions of the Lupane State University Act [Chapter 22:25] and appointments made in contravention of the Lupane State University Act [Chapter 22:25] are invalid. She said the second respondent does not have the power to make the appointments and is acting ultra vires the provisions of the Lupane State University Act [Chapter 22:25]. She said such powers are held by the Senate.

Prior to this, she had once been suspended, and Acting Deans were appointed, but when she challenged the appointments she was reinstated and the appointments of Acting Deans were set aside, but despite a memorandum to that effect they were allowed to continue in occupation of the offices they had been granted and enjoying the benefits that accrued to those positions. She instituted a court application for contempt of court which is still pending under case number HC2311/12. She complained that she will suffer prejudice as the purported appointments of Acting Deans will unlawfully usurp certain of her powers and responsibilities as Dean of Studies and affect her ability to perform her duties.

She seeks, in a provisional order, that the second respondent be interdicted from making those appointments, and that if the appointments have been made, that such persons be removed from those appointments.

The second respondent, who deposed to the opposing affidavit on behalf of the first respondent by virtue of his position as its Acting Vice Chancellor, said only the first respondent should have been sued. He said the applicant has no locus standi to challenge the appointments of Acting Deans and it was not within her right to challenge the appointments. He said she had not established that she has a prima facie right or that any of her rights have been violated and that there is no other remedy. He said since the appointments have been effected she cannot use an interdict to address perceived past wrongs. He went on to state that the applicant will not suffer any financial prejudice as she will continue to receive her pay in terms of her contract of employment. He prayed for the dismissal of the urgent application with costs.

The second respondent also submitted that the Lupane State University Act [Chapter 22:25] does not deal with the smooth running of the University such as interim measures and appointments of persons in acting capacities.

After hearing both parties, I make the following observations:

1. The Acting Vice Chancellor had to be included as the appointments were made by him.

2. The fact that the Acting Deans continue to occupy offices allocated to them does not affect or violate the applicant's rights. She does not own those offices.

3. The fact that the 1^st respondent has advanced some persons to positions of Acting Deans does not violate the applicant's rights.

4. The fact that the appointments of the Acting Deans may not have been made in accordance with the provisions of the University Act does not violate the applicant's rights.

5. In my view, what violates the applicant's rights is the allocation of responsibilities, that is, if the appointed Acting Deans interfere with the rights and powers of the applicant to carry out her officially allocated functions in terms of her contract…,.

It is clear from the papers that the applicant is concerned with the possible interference of her authority to carry out her functions as Dean of Studies. Her concern should be limited to that and that only….,. The main grievance of the applicant is clearly stated in paragraph 5(e) of her founding affidavit where she says:

“I will suffer prejudice insofar or as the purported appointments will unlawfully usurp certain of my powers and responsibilities as Dean of Studies and affect my ability to perform my duties.”

In my view, the following order grants her the relief she seeks:

Order

1. The first and second respondents are interdicted from interfering with or usurping the applicant's powers, authority and functions granted to her by the terms of her contract as Dean of Studies.

2. In the event that such powers have been removed or altered they must be restored.

The applicant filed an application in terms of section 3 of the Administrative Justice Act [Chapter 10:28]. In this application, the applicant seeks an order in the following manner:-

i) An order setting aside the decision of the respondent to transfer the applicant without giving him an opportunity to be heard.

ii) An order setting aside the decision to demote the applicant to an inferior post.

iii) An order setting aside the decision to serve the applicant with a notice to vacate a Masvingo Government residence without alternative accommodation as being unlawful unprocedural, unreasonable, unfair and substitute it with an order that:

1) The Masvingo status quo ante be restored without the loss of benefits, or, alternatively, if the applicant remains at Gweru, that he occupies the office of the Area Public Prosecutor attendant with all its benefits.

2) The notice to vacate the Masvingo Government accommodation without alternative Government accommodation be declared invalid.

The appeal intended to be made to the Supreme Court should leave be granted would have no prospects of success. 

The application is without merit. 

The facts show that the applicant agreed with the respondent that a new contract of employment be entered into taking into account changes brought about by the dollarization of the economy in March 2009. Both parties understood that the services rendered by the applicant in the performance of his work with the respondent needed to be valued and paid in United States Dollars.

The applicant received the document containing the proposed terms and conditions of the new contract of employment. The new contract made no reference to certain allowances. The applicant had three days within which to study the terms and conditions on which the new contract was being offered. He then had to decide whether to accept or reject the offer.

After careful consideration of the terms and conditions of the new contract, the applicant decided to accept them and signed the document. He said he decided to sign the document because he wanted the money. The applicant knew that by signing the document he was entering into a new contract of employment with the respondent. The applicant was a Purchasing Manager. He knew the legal effect of his actions. The conduct of the parties brought about the mutual termination of the old contract of employment. The argument accepted by the arbitrator that the respondent unilaterally varied the old contract of employment had no basis in the facts.

There is a principle of law to the effect that employment conditions do not remain static. Contracts of employment will respond to the changes in the fortunes of business. Chirasasa v Nhamo N.O. & Anor 2003 (2) ZLR 206 (S)…,. 

It was not difficult for the applicant to appreciate why there was need for the changes that took place. If the parties appreciated that fact and freely acted in accordance with its demands, there can be no scope for a court to interfere with their conduct.

In order to appreciate the issues that fall for determination in this appeal, it is necessary to set out in some detail the background giving rise to the present proceedings.

The appellant was employed by the Makoni Rural District Council, (“the respondent”). She was stationed at the council offices in Rusape. She was married and had children. Her family was running a business in Rusape.

Her problems with the respondent appear to have started on or about 9 October 2003, when she absented herself from work and allegedly used a Council computer to transact personal business. By letter dated 10 October 2003, the appellant wrote a letter to the Council Treasurer in the following terms:

“…, I am sorry for using council computer for private business documents and absence from work. I had valid reasons which I had shared and had been given permission by the Deputy Treasurer, Mrs S Mtisi, that my child, Fadzai was not feeling well….,.”

On 11 October 2003, the Council Treasurer wrote to the appellant accepting the apology but warning her not to do the same thing and to ensure that leave days are authorised by the Chief Executive Officer of council before such leave was taken. 

On 14 October 2003, Mrs Mtisi, the Deputy Council Treasurer, wrote to the appellant denying that she had ever authorised her to go away.

It is not clear what happened thereafter, but on 31 March 2004, the appellant wrote a letter to the Chief Executive Officer. The letter was in the following terms:-

“I apologise for all what I did wrong. I promise to be trustworthy, not to be lazy, not to tell lies and to notify my immediate supervisor whenever I will be going out. I will be very grateful if you consider my apology.”

In the meantime, the appellant had been transferred from the Finance Department to the Health Department. Both of these departments are located within the Rusape Town Council area. 

On 3 February 2005, one C.Z Doto, a community sister, wrote to the appellant asking her to write a report on her absence from duty without approval. By letter dated 4 February 2005, the appellant responded in the following terms:-

“I apologise that I was absent from duty on 3 February 2005. What happened is, I received an emergency at about 4 to 12 in the evening that my uncle was seriously ill at Honde Valley and I had to collect him to Harare.

I left a note at home that maybe my line 091 807 018 will not have network that Mr Sagandira will report of the emergency at my workplace…,.”

On 8 February 2005, the appellant held a meeting with the respondent's Chief Executive Officer, E. M Pise. Following that meeting, Mr Pise wrote to the appellant as follows:-

“Reference is made to my meeting with you over your failure to report for work and absconding from duty. You have the habit of leaving office without authority and we believe you need to be relocated out of Rusape.

You are therefore advised that you have been transferred to Inyati Mine with effect from 14 February 2005…,.”

On 11 February 2005, the appellant responded to the above letter expressing her disappointment at the turn of events. In the letter, the appellant stated:-

“I have noted with great displeasure that my excuse for attending the funeral was unaccepted and that your decision to transfer me to Inyathi Mine was based on false allegations. You were informed that I went out for business instead of the said illness that later turned into a funeral…,.

Chief, as you have already concluded, I have no objection to your instruction that I be transferred to the abovementioned station. You have all the rights to give whatever punishment you think is worthy. May I point to you that I am going to Inyati Mine with groaning because I don't see where I wronged you. You have, on several times, tried to be on a fault finding mission on my performance of duty but your efforts have been in vain because the truth shall set me free.

The truth about my transfer, if I may put it across to you, is that your advisors are not happy with my husband's business and in all instances they think whenever I go out they think I would have gone to manage my private business yet I will be attending to crucial social problems…,.

You did not bother to seek audience with me to verify the validity of the allegations against me and because of this I strongly feel that you want to get rid of me from this organisation. Because by transferring me to Inyati Mine you know that I will lose contact with my family and this may lead to the disintegration of my family and to make my children suffer and look miserable during my absence.

Once again, I want to reiterate that I am not pleased to go to Inyati Mine although I am going to comply with your instructions.”

It is common cause the appellant did not report at Inyati on 14 February 2005. Instead, she wrote what she called an appeal against the transfer. In the “appeal” she stated that the Chief Executive Officer had “no basis to punish” her as the allegations were baseless and malicious. She also stated that it was Government policy that couples should not be separated to reduce the incidence of HIV, minimise costs, and obviate separation.

On the same day, Mr Pise wrote back to the appellant in the following terms:-

“…,. You are hereby advised that your appeal has been dismissed as evidence from your file clearly indicates that you have failed to work at our headquarters….,.

We want to hear that you have taken up your position at Inyati today 14/02/2005…,.”

Following a further appeal for him to reconsider his decision to transfer her, the Chief Executive Officer, on the same day, wrote to the appellant advising of Council's decision to suspend her, without pay, pending a hearing to take place on 21 February 2005. The suspension was said to be in terms of section 12B2(b)(i) and(ii) as read with section 35 of the Council Conditions of Service.

On 21 February 2005, the appellant appeared before what was termed a Works Council hearing. 

The hearing committee consisted of Mr Pise, who was Chairman; Mr J Mugari, a member of the workers' committee; Miss N Bofu, a Council employee charged with minuting the proceedings; and the appellant.

In its determination, the committee remarked:

“It has been proved beyond any shadow of doubt that Mrs D Sagandira has the habit of defying authority and the cases of absence from work without permission point to this, and, in addition, her failure to transfer to Inyati Mine when instructed to do so, so (sic) is another case in point. It is not in dispute that Mrs D Sagandira failed to follow instruction to transfer. She at first agreed to transfer and later changed her mind. It should be pointed out that they operate a family business within Rusape where she frequently goes leaving the office unattended. She has been transferred before from the Finance Department and this did not help. She has remained stubborn and does not want to obey orders. Given the above, the said employee is dismissed with effect from 14 February 2005…,.”

Dissatisfied, the appellant took the matter up with a Labour Officer who referred the matter to an arbitrator. The arbitrator upheld the dismissal. The appellant then appealed to the Labour Court. The Labour Court found that her failure to transfer to Inyati Mine amounted to disobedience. The court also found nothing wrong with the composition of the disciplinary authority. In the result, the court dismissed the appeal with no order as to costs. 

It is against that order the appellant now appeals to this Court.

In her grounds of appeal, the appellant attacks the decision of the court a quo on the basis that the court misdirected itself and erred in three respects;

(i) Firstly, that the court a quo failed to appreciate that the order to transfer was punitive and therefore not lawful.

(ii) Secondly, that the appellant was not consulted before the decision to transfer her was made.

(iii) Thirdly, that the Chief Executive Officer was an interested party; he was the complainant, charged the appellant, set the matter down, prosecuted, and chaired the meeting before finding the appellant guilty of misconduct in violation of the nemo judex principle.

In her heads of argument, the appellant submitted that the decision to transfer her was not an ordinary transfer decided by an employer in order to maximise operational efficiency. The transfer was to punish her on account of perceived misconduct on her part, and, in particular, absenteeism. As no hearing to determine the misconduct was conducted, the transfer in these circumstances was unlawful. Further, her personal circumstances were not taken into account. Inyati Mine is fifty kilometres from Rusape. The mine itself is no longer operational and the greater portion of the road to the mine is on gravel….,.

In its submissions, the respondent rejected the suggestion that the transfer was unlawful. That the appellant had absented herself from duty without authority was common cause. In the circumstances, the respondent was within its rights to transfer the appellant as there is no law which makes it mandatory for an employer to hold a disciplinary hearing first before taking such a course. Considering the appellant's conduct, which was well documented, the decision to transfer her cannot, in these circumstances, be said to be unlawful. In the respondent's opinion, the Chief Executive Officer exercised restraint. Whilst he had the power to suspend the appellant and institute disciplinary proceedings, he decided, instead, to transfer her to Inyati Mine - some fifty kilometres away. Whilst it was known that the appellant was married, she could commute. The appellant was better off being relocated than being dismissed. 

In the circumstances, the respondent submitted that the transfer cannot be described as unlawful.

Taking into account the submissions made by both parties, it seems to me that there are three issues that arise for determination, although the second and third issues depend on the resolution of the first.

(i) The first issue is whether the transfer was, in the circumstances, unlawful. If it was, then that is the end of the matter and this appeal must be decided in favour of the appellant. In the event that a finding is made that the transfer was lawful, the issues that would follow are whether, firstly, the decision to transfer her is unlawful on account of the failure by the respondent to consult her and take into account her personal circumstances.

(ii) Secondly, whether the involvement of the respondents' Chief Executive Officer in the proceedings violated the nemo judex principle. 

I proceed to consider the first issue.

Before doing so, it seems to me pertinent to note that, on the papers, it is not clear in what capacity exactly the appellant was to be employed at Inyati Mine. It is also not clear what operations the respondent had at the mine. However, before the penalty of dismissal was pronounced during the disciplinary hearing, the Works Committee Chairperson present exhorted the respondent to reconsider its decision to transfer the appellant to Inyati Mine and instead transfer her to other Council departments within Rusape, or, alternatively, to other Council offices at Nyazura or Headlands which were nearer and situated along the main tarred road where transport was not a problem.

I revert to the question whether the transfer of the appellant was, in the circumstances, unlawful.

In terms of the common law, an employer has the right to unilaterally vary the terms of employment, such as the duties being done by the employee, the location of work or department. This may be necessary, inter alia, to re-organise the operations of the employer, to facilitate disciplinary investigations; provided always that such variation is not substantially different from the contract job description or does not result in the substantial downgrading of the status and dignity of the employee or is in breach of a legitimate expectation of the employee – Labour Employment Law in Zimbabwe, Relations of work under Neo-Colonial Capitalism, M GWISAI…,.

A temporary transfer to facilitate investigations into possible criminal activities is lawful – Chimenya v Associated Textiles Limited SC201-94.

In Director of Works & Anor v Nyasulu & Ors, 2002 (1) ZLR 658 (S), the respondents, who were employed as Farm Managers by the City of Harare, received warning letters from the appellant based on allegations of unsatisfactory performance of their duties. They refused to sign the letters as they were not sure what the consequences of signing would be. Their immediate supervisor regarded their failure to sign as disrespectful.

Subsequently, the respondents received letters transferring them elsewhere in the service of the Council. The respondents applied to the High Court for an order setting aside the transfers on the basis that the transfers were punitive. The High Court agreed and set the transfers aside. The City of Harare unsuccessfully appealed against that determination.

In dismissing the appeal, this Court, per ZIYAMBI JA, remarked…,:-

“I am in respectful agreement with both conclusions reached by the learned judge. It is, therefore, my view that the learned judge was correct in holding that the rules of natural justice had not been complied with in that the respondents were not afforded a hearing before the punitive measures of warnings and transfers were taken against them…,.”

And at p665 A, the learned judge continued:-

“As the learned judge remarked, even if the penalty of transfer had not been imposed, the appellants would have had an entitlement to be heard before the issue of the letters of warning.”

The authorities to which attention has just been drawn emphasise two important principles in our labour law. These are;

(i) Firstly, that an employer does have the authority to transfer an employee in order, inter alia, to enhance operational efficiency or to facilitate investigations.

(ii) Secondly, an employer, whatever the circumstances, has no right to invoke a transfer as a punitive measure outside of the disciplinary framework.

It must always be remembered that a transfer can be ordered as part of the penalty imposed on an employee found guilty of misconduct.

In this case, there can be no doubt that the respondent, and, in particular its Chief Executive Officer, believed that the appellant was guilty of absenteeism. The appellant had indeed been moved from the Finance Department to the Health Department for that reason. That transfer was within Council premises in the same town. No-one complained. 

The transfer to Inyati Mine was different. 

This was a transfer of a married woman with school-going children. The transfer obviously necessitated her being away from her husband, and, in particular, minor children. Inyati Mine is fifty kilometres from Rusape. It is not easily accessible. Whilst it was once a bustling mining centre, its operations as a mine ceased years ago. Transport to and from Inyati Mine, mostly on a gravel road, is not easy. It is not even clear on the papers what position the appellant was to assume on reporting for duty there or where she was to stay. Whilst the decision to transfer her was made, no detail is apparent on the papers as to what was to happen once she got there.

In my view, once the respondent had formed the opinion that the appellant was misconducting herself, a disciplinary hearing should have been held to determine whether she was, in fact, guilty. After all, whilst the appellant admitted being absent on the occasions cited in the correspondence, she never admitted, at any stage, that she did not have a lawful excuse. At one stage, she made it clear she had gone to Honde Valley to collect a sick uncle whom she took to Harare. The uncle subsequently died. When she absented herself in order to attend the funeral, she was regarded as being absent without lawful excuse and was made to write a report on such absenteeism.

In a situation such as that, in which the respondent found itself, proper disciplinary proceedings should have been conducted. In the event that it was found that the appellant had no lawful excuse to be absent, she could have, as part of the penalty, been transferred to any other department of the appellant. In proceeding to transfer the appellant in the manner it did, the respondent fell foul of the audi alteram principle. It found the appellant culpable without holding any disciplinary proceedings, and, in the result, imposed, as a penalty, an order that the appellant transfers to a place some fifty kilometres away where transport was difficult. The inference that this transfer was punitive, or intended to be a punishment, is inescapable.

It seems to me an opportune time to emphasize that whilst transfers effected in the ordinary course of operations are appropriate, transfers that are punitive, based purely on perceived misconduct on the part of the employee, are not acceptable as they are unlawful. A punitive measure can only be predicated on a proper finding of culpability following proper disciplinary proceedings.

I am satisfied that the order that the appellant transfers to Inyati Mine was, in the circumstances of this case, punitive, and therefore unlawful.

Further, I am satisfied that, given the appellant's circumstances, her personal wishes, and views should have been taken into account before the ultimate decision to relocate her some fifty kilometres away at some disused mine premises was made. See Director of Works & Anor v Nyasulu & Ors, 2002 (1) ZLR 658 (S)….,.

In the result, the appeal must succeed. It is accordingly ordered as follows:-

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and in its place the following substituted:-

“(a) The decision of the arbitrator of 3 November 2006 confirming the dismissal of the appellant is set aside.

(b) It is ordered that the appellant be reinstated to her position with the respondent without loss of salary or benefits. Should re-instatement no longer be possible, the respondent is to pay to the appellant such damages as may be agreed upon or, that failing, as are, upon application, quantified by this Court.

This is an appeal against the whole judgment of the Labour Court which upheld the arbitration award overturning the decision of the disciplinary committee dismissing the four respondents from employment.

There is no material dispute of facts as most issues forming the basis of this appeal are common cause. The undisputed facts are that the respondents were employed as Chief Designated Agents by the appellant. On 16 August 2012, the appellant gave written notices to transfer the respondents to various work stations in the country with effect from 1 January 2013.

The envisaged transfers were in line with the employer's policy and practice to rotate designated agents after serving in a particular area for a given period. This was meant to promote effectiveness, accountability and exposure of employees to new challenges.

The notice provided the respondents with at least three (3) months grace period for them to wind up their business and personal affairs in Harare for a smooth transfer to their respective new work stations.

The respondents were however disturbed and not amused by the impending transfers. They thus vigorously objected to the transfers citing personal hardship and inconvenience. In their concerted effort to resist and abort the intended transfers they roped in the services of lawyers.

Despite the spirited resistance and intervention of lawyers, the appellant insisted on the transfers as ordered. The respondents were however equally adamant and unmoved as they steadfastly refused to obey the employer's lawful orders given in accordance with their respective contracts of employment.

The net result was that when the date of compliance came to pass all the four respondents were not at their new work stations. Their failure to transfer, as ordered, was in open defiance of the employer's lawful orders given in terms of their respective contracts of employment.

The disobedience was wilful and deliberate.

A stalemate having been reached, the appellant charged the respondents with wilful disobedience to a lawful order in contravention of section 4(b) of the National Employment Code of Conduct, S.I.15 of 2006, alternatively, any act or omission inconsistent with the fulfilment of the express or implied conditions of his or her employment contract in contravention of section 4(a) of the National Employment Code of Conduct, S.I.15 of 2006.

Both offences constitute serious dismissible acts of misconduct.

The disciplinary committee found all the four respondents guilty as charged and ordered their dismissal from employment. The dismissals were premised on the finding that the aggravating features outweighed the mitigating factors.

Aggrieved by both conviction and penalty, the respondents referred the matter for conciliation in terms of Part XII of the Labour Act [Chapter 28:01] without success. The matter was then referred for arbitration in terms of section 12B(4) of the Labour Act [Chapter 28:01].

The arbitrator confirmed the convictions but reduced the penalties from dismissal to final written warnings on the basis that the mitigating factors outweighed the aggravating features.

Dissatisfied with the arbitration award, the appellant appealed to the Labour Court which dismissed the appeal and upheld the arbitration award hence this appeal.

INTERPRETATION OF SECTION 6(1)(D) OF THE LABOUR ACT

In its ground of appeal no. 4, the appellant raised the issue of the interpretation of section 6(1)(d) of the Labour Act [Chapter 28:01].

The court a quo held that the appellant took advantage of its own failure to provide security for the respondents thereby exposing them to the risk of being pounced upon by robbers at the Mafusire steep rise. It reasoned that the charges arose from the appellant's failure to provide the respondents with security because the Mafusire area is notorious for robberies.

Section 6(1)(d) of the Labour Act [Chapter 28:01] provides as follows:

“(1) No employer shall -

(d) Require any employee to work under any conditions or situations which are below those prescribed by law or by the conventional practice of the occupation for the protection of such employee's health or safety; or…,.”…,.

Counsel for the appellant submitted that the court a quo erred because section 6(1)(d) of the Labour Act [Chapter 28:01] refers to conditions prescribed by the law. She further submitted that the court a quo did not refer to any law which provides for the respondents' safe working conditions.

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

The applicants were husband and wife. They were teachers at Chingoma High School, Mberengwa District, Midlands Province [“Chingoma”]. Between them they had clocked twenty six years of continuous service at the school: the first applicant, the husband, having done ten years, and the second applicant, the wife, sixteen years. These are appreciable lengths of service by all accounts. Ordinarily, you do not just uproot someone like that from their station against their will without very good reasons.

The applicants were uprooted.

A problem arose between the applicants and a fellow teacher at the school - a lady. She complained of prolonged sexual harassment or abuse by the first applicant. All three were in the same Department. The second applicant was the Head. She got entangled, undoubtedly driven by marital interests. The complainant also raised multiple complaints against the second applicant. She reported, among other things, that the second applicant had stopped supervising her work. She said the second applicant was sending her stressful telephone messages. She said on one occasion the second applicant had hit her with an elbow. On another, she had spat in her face.

The school convened a disciplinary enquiry. The applicants were found guilty. A uniform penalty was imposed against both. It was threefold: a fine of $200= each, to be recovered from the salaries; a transfer from Chingoma High School to any school within the district; and a reprimand.

The disciplinary proceedings were concluded in November 2016. The outcome was communicated to the applicants by letters dated 13 January 2017. However, these were only served on the applicants on 30 January 2017. The respondents argued that that was when the clock began to tick if the applicants wished to apply on an urgent basis.

In February 2017, the respondents set in motion the process to transfer the applicants, in execution of the sentence. Among other things, standard term transfer forms were served on them. But the reason stated on those forms was patently incorrect, namely, that the transfers were pursuant to some request previously made by the applicants. In the urgent chamber application, the applicants initially pounced on this mistake. However, counsel for the applicants eventually conceded that the mistake was not material.

The applicants would also complete assumption of duty forms. The new school, Vubwe Secondary School [“Vubwe”], was some 100 kilometres away from Chingoma High School.

The applicants were aggrieved by both the disciplinary process and the outcome. They decided to appeal to the Labour Court. Against conviction, they would challenge the propriety of the disciplinary proceedings, which to them was a complete nullity by reason of the process having been conducted way outside the mandatory statutory period. As for the sentence, they would argue that it was draconian and that it induced a sense of shock.

Pending appeal, the applicants would simultaneously file the urgent chamber application to stop the transfers.

That, manifestly, was the intention. But it seems things did not quite go according to plan.

The urgent chamber application was only filed on 9 February 2017. As for the appeal to the Labour Court, it was not until Monday, 13 February 2017 that it was finally filed, i.e. the day before the hearing. The applicants blamed the Registrar of the Labour Court for the delay.

The delay in filing the appeal did not cause any immediate problems. However, the apparent delay in launching the urgent chamber application did.

The period between the applicants' receipt of their sentence on 30 January 2017 and the filing of the application on 9 February 2017 was not explained. Not unexpectedly, the respondents pounced on this and took the point in limine.

I reserved judgment and opted to hear the merits.

The proceedings had to be adjourned briefly. It seemed the situation on the ground had shifted somewhat. Among other things, whilst counsel for the applicants was insisting that the applicants had not yet shifted to Vubwe Secondary School, counsel for the respondents maintained that not only had they in fact shifted, but also that two other new teachers had since been drafted to replace them at Chingoma High School. So the purpose of the brief adjournment was to enable the legal practitioners, as officers of the court, to ascertain the correct position on the ground.

They did.

It transpired that the applicants had since signed the assumption of duty forms and had assumed duty at Vubwe Secondary School the day before the hearing. It was said the fourth respondent, Chingoma High School's Headmaster, had actually been pressing the applicants to remove their belongings from the school house to pave way for the new teachers.

Counsel for the applicants' strongest argument, both on paper and in oral submissions, was that the disciplinary proceedings were a complete nullity. The applicants had challenged them. Until the outcome was known, it was wrong for the respondents to purport to execute the sentence of transfer. It would be a breach of the applicants' Constitutional rights of access to the courts and to have their dispute determined fairly. If they succeeded on appeal, after they had already been transferred, any remedy would be a brutum fulmen.

Throughout the hearing, I had to implore the parties repeatedly, counsel for the applicant, in particular, to systematically address the requirements for an interlocutory interdict as they applied to this case.

For what it is worth, the requisites for an interlocutory interdict are:

1. A prima facie right, even if it be open to some doubt;

2. A well-grounded apprehension of irreparable harm if the relief is not granted;

3. That the balance of convenience favours the granting of an interim interdict;

4. That there is no other satisfactory remedy;

5. That there are reasonable prospects of success in the merits of the main case.

See Setlogelo v Setlogelo 1914 AD 221; Tribac [Pvt] Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]; Hix Networking Technologies v System Publishers [Pty] Ltd & Anor 1997 [1] SA 391 [A]; Flame Lily Investment Company [Pvt] Ltd v Zimbabwe Salvage [Pvt] Ltd and Anor 1980 ZLR 378; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H].

After full argument on the merits I reserved judgment. Here now is my judgment on both the point in limine and on the merits….,.

[b] Prima facie right

This was probably a border line case. A teacher gets employed by the Public Service knowing full well that he or she may be transferred at any time. No member of the Public Service, or any other employee for that matter, may have the right to be permanently stationed at one place, unless their contracts of employment expressly said so.

Counsel for the applicants said in the case of Taylor v Minister of Higher Education & Anor 1996 [2] ZLR 772 [S] it was held that professional employees of long standing, holding senior posts, should not be transferred without account being taken of their personal situation and wishes. In casu, he pointed to the applicants' combined twenty six years of service at Chingoma High School, and to the fact that the second applicant was a Head of Department.

However, Taylor v Minister of Higher Education & Anor 1996 [2] ZLR 772 [S] is manifestly an inapposite precedent.

Therein, the court was concerned with a transfer that was being executed without observance of the audi alteram partem rule of natural justice. Members of the Public Service, like Mr Taylor had been, could be transferred even without their consent. But the Supreme Court held that “without their consent” did not mean the same as “without a hearing.”

In casu, there was a hearing. It was not just a hearing to seek the members' reaction to the intended transfer. It was a disciplinary hearing on charges of misconduct. The applicants were found guilty. The transfers were part of the sentence. However, despite all that, I am prepared to accept that the applicants had a prima facie right not to be transferred from their station of twenty six years on the basis of a disciplinary process that could turn out to have been a complete nullity. It could be a nebulous right. But the right sought to be protected by an urgent chamber application needs not be a clear one. It may be open to some doubt. I consider that the applicants' situation herein fitted the bill.

Therefore, on prima facie right, as the first requirement for an interlocutory interdict, the decision is in favour of the applicants.

[c] A well-grounded apprehension of an irreparable harm

Under this head, there ought to be a fear or an apprehension of harm that is well- grounded, judged objectively, that is to say, what a reasonable man, in Latin, a diligens paterfamilias, would consider harmful or perilous or prejudicial, and, that the fear or the apprehension must be of a peril or a harm or prejudice that will be irreversible if the court does not intervene.

Of this, the head-note on Document Support Centre [Pvt] Ltd v Mapuvire 2006 [2] ZLR 240 [H], summarising the judgment of MAKARAU J, as she then was, says:

“Urgent applications are those where, if the courts fail to act, applicants may well be within their rights to suggest, dismissively, to the court, that it should not bother to act subsequently, as the position would have become irreversible to the prejudice of the applicant. The issue of urgency is not tested subjectively. It is an objective one, where the court has to be satisfied that the relief sought is such that it cannot wait without irreparably prejudicing the legal interest concerned.”

On the same point, GILLESPIE J, in General Transport & Engineering [Pvt] Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 [2] ZLR 301 [H] and Dilwin Investments [Pvt] Ltd v Jopa Enterprises Co Ltd HH116-98 said:

“A party who brings proceedings urgently gains considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants. For instance where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”

Beyond the need to protect their perceived Constitutional rights, the applicants did not explain what harm exactly they stood to suffer, and, most importantly, how any such harm could be said to be irreversible, if the transfers were not stopped. For example, apart from their lengths of service, there was not a word about what else there was at Chingoma High School that was not there at Vubwe Secondary School. The nearest counsel for the applicants said on this was that the applicants had never been to Vubwe Secondary School and that therefore they did not know what lay in store for them there! But you do not found a cause of action on something that you do not even know whether or not it exists. You cannot really say I stand to suffer an irreversible peril when you cannot even spell out what that peril is.

Other than the fine of $200=, which could be restored if successful on appeal, the applicants were not going to suffer a reduction in salaries. They were not being demoted. Admittedly, the second applicant could well lose being Head of Department. But this was a mere in-house administrative arrangement at Chingoma High School, perhaps through its Head, the fourth respondent herein. It had nothing to do with the second respondent, the actual employer.

Asked by myself what exactly those Constitutional rights were the breach of which would be irreversible were the applicants to succeed on appeal, counsel for the applicants could only vaguely refer to the right to a fair hearing and rights to administrative justice.

That was tenuous.

Except in some exceptional circumstances which do not concern this case, there is no question that a breach of a Constitutional right, or any right for that matter, is justiciable. But the applicants had been tried before a disciplinary committee. They had been unhappy with the outcome. They had appealed. The appeal was pending. They appreciated that the appeal did not suspend the judgment of the disciplinary committee. So they brought this urgent chamber application. But before they did, there was nothing stopping the respondents from executing the sentence of the disciplinary committee. And if the appellants succeeded before me, execution would be stopped. If they succeeded on appeal, after the transfers, they could always be reversed. It might be inconvenient. But it could not be said to be impossible.

So I did not see what Constitutional rights of the applicants that were being flouted and what irreversible harm they would suffer. Therefore, this point is decided in favour of the respondents. And that really should be the end of the matter. But I also consider the remaining requirements for an interdict.

[d] Balance of convenience

Not being chattels, it would be wrong for the applicants to be shunted from one school to another, and back again, as the judicial process was underway. What would be ideal would be to allow the judicial process to run its full course whilst the applicants stayed put until their fate was finally determined.

Unfortunately for the applicants, the status quo had changed materially.

Whether due to pressure or fear, by the time of the hearing they had assumed duty at the new school. Children at Vubwe Secondary School looked forward to being taught by them. The authorities there looked forward to confer responsibilities on them. Not only that, but other teachers had already replaced them and assumed duty at Chingoma High School. They had assumed responsibilities. Thus, the ground on which the application had been based had shifted appreciably.

Of course, that is not to say this court cannot order a reversal. But it would be a whole lot inconvenient for too many people, some of them unconnected to the dispute. A reversal might well spark further litigation, thereby causing more inconvenience - even to the courts. The applicants were largely to blame. That initial delay from 30 January 2017 to 9 February 2017, even though condoned, came back to haunt them.

Accordingly, this point is decided in favour of the respondents.

[e] No other satisfactory remedy

Counsel for the applicants' argument was that once the breach of the applicants' Constitutional rights was allowed to subsist for any time longer, nothing done afterwards could ever restore them back to their original position.

But, as I have demonstrated above, the alleged breach of Constitutional rights is really an illusion. All that had happened to the applicants, or would happen, could be reversed if their appeals succeed. That is a remedy. Among other things, their transfers could be reversed. The fines could be refunded. The reprimands could be expunged from their disciplinary records. Perhaps, only the days they would lose being away from Chingoma High School would not be restored. But this, to me, is not the kind of prejudice contemplated by the law. It is fanciful. It does not constitute a legal interest.

Therefore, this point is also decided in favour of the respondents.

[f] Prospects of success on appeal

In my recent judgment in Tetrad Holdings Limited v Master of the High Court & Anor HH898-15, I said…,:

“Weighing the prospects of success in any given case always poses problems. The court has to leap forward and temporarily sit in judgment over the pending review application. But that is unavoidable.”

I still hold the same view. I have to temporarily peek into the merits of the case before the Labour Court and express my view on the prospects of success. That view can only be a prima facie one. The matter might completely turn on its head after full argument. But to express a view is an avoidable duty.

In my view, the applicants' appeal in the Labour Court has bright prospects of success. Among other things, the disciplinary committee convicted on very shaky evidence. It is true that in spite of the use of criminal law terms like 'charged', 'convicted', 'guilty', 'sentence', and the like, disciplinary proceedings are civil in nature. The standard of proof required to grant or refuse relief is 'balance of probabilities' rather than 'beyond a reasonable doubt.'

However, after having gone through the two records of proceedings of the disciplinary committee that were produced by consent, I am not satisfied that the complainant's allegations were proved. Even if they were proved, I am not satisfied that they were so cogent as to found, let alone sustain, the offences with which the applicants were charged. Furthermore, it seems most probable that the disciplinary proceedings were conducted well outside the prescribed mandatory period and that, as such, they are liable to be set aside. Finally, to transfer a Head of Department and her husband, both of whom had rendered uninterrupted service for such lengths of time, over such nebulous charges, seemed manifestly unjust. In my view, unless there was more that was not borne out by the record, this was a matter crying out for nothing more than mere counselling of the parties involved.

However, these remain my cursory views of the matter. The Labour Court may not share them. But I would decide this particular point in favour of the applicants.

[g] Conclusion

This application fails largely on account of the failure by the applicants to show the harm they stood to suffer and in what way it would be irreversible, if indeed it existed. It also fails in that as a matter of fact, what they sought to prevent had already happened by the time of the hearing. In other words, the horse had already bolted. It was too late to close the stable door….,.

According to the Public Service Commission Circular No.11/2004…, the power to transfer an official of any rank equivalent or senior to that of the plaintiff vests in the Commission. The transfer of the plaintiff was directed by the Secretary of Mines and not by the Commission.

Lastly, the allegation that the applicants' right to freedom to choose a religion of their own was infringed because their transfers were penalties for having exercised their right to change religion is without foundation in fact and in law.

The applicants were not transferred because they changed religion. No-one is compelled to be a member of a religious organisation. The respondents respected their right to freely choose to change religion. They were transferred because they had placed themselves in situations in which they were no longer able to perform some of the core functions of the office of deputy headmaster at the schools.

The applicants voluntarily opted to change their allegiance from the Anglican Church of the Province of Central Africa to the Evangelical Anglican Church International. In so doing, they ceased to be priests adhering to the principles of the Anglican Church as set out and practiced by those who are members of the first respondent.

The freedom to associate necessarily includes the freedom to dis-associate. They became pastors adhering to the tenets and beliefs of the Evangelical Anglican Church International.

In the case Guruva v Traffic Safety Council of Zimbabwe SC30-08, it was held that:

“It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer's discretion, in determining which employee should be transferred and to which point of the employer's operations, is not to be readily interfered with except for good cause shown.”

Good cause in that case was given as, inter alia, unfounded allegations, victimization of the employee and any action taken to disadvantage the employee.

Of course, in Gurava v Traffic Safety Council of Zimbabwe SC30-08 reasons had been given for the transfer but the applicant had made representations against the transfer, nonetheless, the employer still insisted on the transfer after considering the employee's representations.

The Supreme Court, in that case, however, went on to hold that:

“Even if the reasons had not been given in the first correspondence to him, the reasons would still be valid as long as they were genuine.”

In Guruva v Traffic Safety Council of Zimbabwe SC30-08, the Supreme Court went on to state that:

“The employee who undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to perform services of the employer wherever such services are required unless the employment contract stipulated that he is to be employed and remain at a specific place only.”

In Guruva v Traffic Safety Council of Zimbabwe SC30-08, the court also quoted the case of Taylor v Ministry of Higher Education and Another 1996 (2) ZLR 772 (SC) where in the Appeal Court had held that in some cases an employer can still transfer an employee without giving him or her a hearing, depending on the circumstances of the case, and that it would be unworkable if every employee were to be consulted before a transfer decision is made….,.

In the case of Sekwele v Ministry of Communications and Another ZALC J HB 165/13, a judgment of the Labour Court of South Africa, wherein the applicant sought an interdict to stop a transfer pending challenges to same. The court therein held the view that no irreparable harm can be suffered in a transfer as the applicant therein could challenge it and that it could not be held that the applicant challenging a transfer in another fora can be held not to have an alternative remedy.

I hold the same view.

The applicants seek a declaratory order that the termination of their contracts of employment by the respondent was unlawful. Upon the granting of such a declaratory order, the applicants seek an order for their reinstatement to their posts without loss of salary and benefits.

The application is resisted by the respondent who contends that the basis of the order is flawed. Further, and in any event, it is argued, on behalf of the respondent, that the applicants were offered new contracts where their remuneration would be related to their performance. The applicants refused to sign these new contracts. A dispute arose, and, subsequently, the respondent terminated the applicants' contracts of employment.

The applicants argue that the purported termination is an unlawful circumvention of the Labour Act [Chapter 28:01] and its regulations relating to retrenchment.

Background

All the applicants were employed by the respondent on contracts without limit of time as defined in section 12 of the Labour Act. A dispute has arisen between the applicants and the respondent. On the 10^th and 11^th June 2015 the respondent wrote to each of the applicants indicating an intention to terminate their contracts and to replace them with new contracts. The letters, which were similarly worded, were crafted in the following terms:

“NOTICE OF TERMINATION OF CURRENT CONTRACT AND OFFER OF NEW CONTRACT

The macro-economic challenges facing the country are seriously hampering the viability of the company.

Particular reference is made to the poor performance of the company as reflected by the month on month sales figures from last year to date. The sales figures are well below operating costs. These figures show that it is impossible for the economy to maintain a fixed or invariable salary structure. It is therefore important for the company to adapt the way it does business to its operating environment to ensure that it survives. The costs of the company must be aligned and positively correlated to productivity.

Your current contract of employment was concluded when the environment was not as hostile on manufacturers as it is now. At the time that we concluded the employment contract, we agreed that the contract can be terminated on notice other than through dismissal. Because we still require your services, we now wish to terminate your contract on notice and replace it with one that provides for remuneration based on productivity. We hereby give you three months notice for the termination of your current contract of employment. At the same time, we hereby offer you a new performance contract which aligns your remuneration to your productivity. Your new contract, if accepted, shall become effective on the date that the termination of your current employment contract becomes effective. Should you want to bring forward the effective date of your new contract, you will be required to waive the notice required to terminate your current contract of employment.

During that period of notice, you shall not enter into any other employment on a full time, part time or consultancy basis.”

The applicants did not accept the offer of the new contracts, which they viewed as an attempt to retrench them without following the rules and regulations on retrenchment.

In a letter dated 23 June 2016, the applicants instructed their legal practitioners to reject the offer. The letter reads, in part, in the following terms:

“Our clients' view is that since you are terminating more than 5 employees, you are obliged to comply with the provisions of section 12C of the Labour Act (Chapter 28:01). In this regard, you cannot purport to act in terms of section 12(4) of the same Act because in your letter, giving notice of termination, you specifically advise the employees that you are terminating employment due to the unfavourable economic conditions. It is clear, therefore, that the termination is being done on an individual basis per se. With respect, the Labour Act provides, in section 12D thereof, that were an employer is facing financial challenges, the options available to them are to:

(a) Place employees on short-time work; and/or

(b) Institute a system of shifts.

It is clear, with respect, that the employer is not at liberty to simply terminate all its employees and thereafter offer to them fixed term contracts. That is not a special measure contemplated by section 12D of the Act…,.

In the result, the termination of the employees' employment contracts in the manner that you have done is manifestly unlawful and liable to be overturned by a competent tribunal. It is clear that your true intentions are to vary the employees' contracts without their consent…,.”

The letter by the applicants' legal practitioners encapsulates the legal arguments that are being put forward by the applicants in this matter.

The issues for determination by this court are essentially these:

(a) Whether or not the relief sought in paragraph 1 of the applicant's draft order is sensu stricto for a declarator.

(b) Whether or not the termination of the applicants' employment contracts was an unlawful circumvention of the provisions of the Labour Act and its regulations relating to retrenchment.

(c) Whether or not the respondent was entitled to terminate the applicants on the grounds of repudiation.

Declaratory Order

In determining whether the order sought is strictly a declarator it is necessary to have regard to the provisions of section 14 of the High Court Act (Chapter 7:06). It is provided under this section as follows:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

In Johnsen v AFC 1995 (1) ZLR 65 (H) it was held as follows:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment the court. The interest must concern an existing, future or contingent right…,.”

I am satisfied that the circumstances of this particular application would warrant the granting of a declarator in the exercise of my judicial discretion.

Whether or not the applicants' termination on notice is unlawful

It is clear that the starting point is to examine the meaning and purpose of the respondent's letter dated 10 June 2015. It is evident from the preamble to the letter that in consequence of economic factors affecting the viability of the company and poor sales, a fixed salary structure was no longer tenable. The respondent required salaries to be linked to productivity and performance.

The applicants placed reliance on the authority of Mutare Board Paper Mills (Pvt) Ltd v Kodzanai 2000 (1) ZLR 641 (S).

In this matter, the management of the appellant company decided that it had to reduce its work force. This decision was considered to be necessary as a cost-cutting measure that was essential to maintain the financial viability of the company. It decided that it would reduce the workforce by retiring all its male employees who were 55 years of age or over. The respondent, along with several other employees of the appellant, was compulsorily retired after reaching the age of 55. The rules of the pension fund provided that the normal retirement was at the age of 65, but an employee could retire early or be retired at the employer's instance. The respondent argued that what was being effected was retrenchment and the procedures applicable to retrenchment should have been followed. The court ruled that it was clear that the object of the exercise was retrenchment. This was shown by the fact that the employer suddenly, and simultaneously, required large numbers of employees of the same class by age to proceed to early retirement and the fact that the reason given for this step was the need to reduce the strength of the workforce.

It is my view that the termination of the employees' contracts of employment, and the proposed replacement with new contracts, was informed by the alleged macro-economic challenges. The fact that the company was re-organising its workforce is also evident in the notice of termination of current contracts.

The definition of retrenchment, as set out in the Labour Act, is as follows:

“Retrench, in relation to an employee, means terminate the employee's employment contract for the purpose of reducing expenditure or costs, adapting to technological change, re-organising the undertaking in which the employee is employed, or for similar reasons, and includes the termination of employment on account of the closure of the enterprise in which the employee is employed.”

It is my view that whatever name the respondent has chosen to call the wholesale termination it is apparent that in terms of the law it was conducting an unlawful retrenchment exercise.

In the case of Mutare Board Paper Mills (Pvt) Ltd v Kodzanai 2000 (1) ZLR 641 (S) the Supreme Court held that:

“Even though an employer may have the right to resort to termination…, if the object and effect of such action is to retrench, then the applicable regulations must be complied with.”

It is not disputed that the respondent terminated or sought to terminate its employees' contracts en masse citing viability and re-organisation as its reasons. In its letter dated 14 August 2015, the respondent made it clear that the applicants' employment would end on 12 September 2015. The new contracts offered were separate contracts from the contracts sought to be terminated. This is more evident in that the “new” contracts would replace the “old” contracts. The applicants were advised that they would serve three months notice. If it was intended to be continuous employment, then the employee would not have been required to serve notice.

I am satisfied that the actions of the respondent amounted to an unlawful termination of the applicants' contract of employment….,.

Disposition

The applicants seek a declaratory order to the effect that the termination or variation of the applicants' contract is unlawful. I have already come to the conclusion that the purported variation or termination was not done in terms of the law. The applicants have established that the respondent sought to retrench each of the applicants. The conduct of the respondent amounts to an illegality. The variation of the old contract with a new “performance” based contract was designed to circumvent the retrenchment regulations.

In the result, it is ordered as follows:

1. The termination or variation of the applicants' contracts of employment by the respondent be and is hereby declared unlawful.

2. The respondent be and is hereby ordered to reinstate the applicants to their employment without loss of salary and benefits.

3. In the event that reinstatement is no longer an option, the respondent be and is hereby ordered to pay the applicants' damages to be determined by an arbitrator appointed by a Senior Labour Officer.

4. The respondent is ordered to pay the costs of suit.

This is an appeal against the whole judgment of the Labour Court which dismissed an appeal against an arbitral award issued in the respondents' favour.

The salient facts in this matter are the following.

In 1995, the appellant employed the respondents as shelf packers and they rose through the ranks. At the commencement of the dispute they were employed as Section Managers at TM Supermarket, Lobengula Street, Bulawayo under the M2 grade in terms of the appellant's grading system. Their remuneration was paid in accordance with their contracts of employment and in conformity with the relevant Collective Bargaining Agreement.

In 2009, the appellant offered increments to all its Section Managers in the fifty branches it operated nationwide based on monthly sales performance of the respective branches. In order to give effect to this, the appellant grouped the branches into four categories. The branch which recorded the highest sales would earn its managers a 20 percent bonus, the second highest 15 percent, the third 10 percent with the lowest earning 5 percent. Based on this formula, the Lobengula branch received a bonus of 15 percent during the period in question.

On 22 November 2011, the respondents addressed a letter to the appellant's Managing Director in which they alleged that they had discovered that since January 2010, some Section Managers were being paid a monthly salary that was higher than what the respondents were earning. They also stated that they had previously written to the Human Resources Officer - Southern Region and the Human Resources Manager concerning their grievance but they had not received a response.

There was no response from the Managing Director, and, in January 2012, the respondents lodged a complaint of unfair labour practice with a Labour Officer. They claimed the difference between their salaries and what the highest performers were being paid. The parties were invited to attend conciliation proceedings which failed to achieve a positive result, and, consequently, a Certificate of No Settlement was issued. Thereafter, the matter was referred to compulsory arbitration for the arbitrator to determine whether the respondents were entitled to back-pay and the quantum thereof.

Before the arbitrator, the respondents contended that in November 2011, most Section Managers under the M2 grade were earning salaries ranging from US$400= - US$450= per month whilst they were earning US$360= per month. They argued, before the arbitrator, that there was no rational basis for the distinction. They also suggested that in November 2011, following their complaint, each of their accounts was inexplicably credited with the sum of US$40=. It was also the respondents' contention that in February 2012 they were demoted to Grade 10 without consultation. In the result, the respondents claimed back pay in the sum of US$2,390= each and prayed that the appellant be ordered to stop acting unilaterally in violation of the labour laws.

Per contra, the appellant averred that initially the Section Managers were paid equitably and the decision to pay them based on branch performance was reached sometime in December 2010. The appellant also submitted that the respondents were in grade C2 in terms of the “Patterson” grading system and that, as they were managerial employees, their salaries were negotiated on an individual basis. Contrary to the respondents' contention, the appellant claimed that the US$40= deposited in the respondents' accounts were given to every employee of the appellant. It submitted that there was no back-pay due to the respondents because it was gravitating towards the normal payment system where employees are paid the same regardless of performance.

The arbitrator found that, in the circumstances in casu, the performance-based bonus constituted a contravention of the audi alteram partem principle as the respondents had not been afforded an opportunity to be heard concerning the new grading salary scales. He therefore held that the appellant was committing an unfair labour practice in terms of section 6 of the Labour Act in that the respondents were being underpaid for the period in question. In addition, he held that the appellant's conduct in this regard was criminal which rendered it liable for prosecution.

As a consequence, he ordered that each of the respondents be paid US$2,390= as back-pay. He also ordered that the appellant should normalize the compensation system for the respondents.

The appellant was aggrieved and appealed against the arbitral award to the Labour Court. In essence, the grounds of appeal were that the arbitrator erred in finding that the appellant committed an unfair labour practice by implementing a performance based incentive bonus scheme. It also argued that the arbitrator exceeded his terms of reference when he ordered it to normalise its payment scheme.

The Labour Court upheld the finding by the arbitrator that the appellant had committed an unfair labour practice by implementing a performance-based bonus scheme. On the issue relating to the arbitrator exceeding his terms of reference, the court a quo found that it was inconceivable that the appellant would raise such a ground of appeal when it was common cause that it had, subsequent to the arbitration proceedings, started a process towards normalising its remuneration system. In the result, the appeal was dismissed in its entirety.

Aggrieved by the decision, the appellant, with the leave of this Court, has appealed on the following grounds:

1. The court a quo erred in law in effectively coming to the conclusion that it was unlawful for the appellant to pay its employees performance-based salaries.

2. Having come to the conclusion that what the respondents were being paid was in accordance with their contracts of employment, the court a quo erred in law in holding as valid an award which entitled them to be paid on a salary scale that was not contractual and which related to different employees.

3. The court a quo erred in failing to make a determination on whether the arbitrator was entitled to stray from the terms of reference in the manner that he did and whether he was at large to afford relief which had not been motivated.

From the grounds of appeal, there are essentially two issues for determination and these are:

1. Whether the court a quo erred in holding that it was unlawful for the appellant to pay its employees performance-based bonuses.

2. Whether the court a quo erred by failing to make a determination on whether the arbitrator strayed from his terms of reference.

Whether the court a quo erred in holding that it was unlawful for the appellant to pay its employees performance-based bonuses

The appellant contends that the court a quo erred in holding that it was unlawful for it to implement a performance based bonus scheme because there was nothing unlawful about the measures it adopted in putting in place such a scheme as long as the emoluments which the employees are paid as a minimum comport with what is set out in the relevant Collective Bargaining Agreement. The respondents, per contra, contend that putting in place a performance-based salary system is unfair as it contravenes section 5(d) of the Labour Act [Chapter 28:01] (the “Act”) which prohibits discrimination on matters relating to employment, wages and benefits.

A bonus is what can generally be termed a benefit. The implication that can be drawn is that the grant of a bonus, per se, is not illegal and an employer cannot generally be held to have committed an unfair labour practice by setting up a bonus scheme. The rationale to this principle is that every employee has the right to a performance based incentive and if they work well, they will be paid well without any reference being made to their class, race, tribe or any other factor on the basis upon which discrimination can competently be committed. Thus, the grant of a performance-based bonus is therefore not proscribed by law.

It is only where the awarding of the bonus constitutes an unfair labour practice that would render the bonus illegal.

It should be noted, however, that a court will interfere with a decision which involves the exercise of discretion in very limited circumstances. These were set out by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)..., where the Court said:

“The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first, one which clearly involved the exercise of a judicial discretion, may only be interfered with on limited grounds. See Farmers' Co-operative Society (Reg.) v Berry 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

It is trite that the grant of a benefit is at the discretion of the employer and cannot be interfered with unless the employer has, in granting the benefit, exercised his discretion capriciously or on a wrong principle. This position was buttressed in First Mutual Life Ltd v Muzivi SC09-07 where CHEDA JA stated:

“Payment of an annual bonus is generally discretionary on the part of the employer. It could not be said that the employee would have been awarded a bonus under all circumstances. A bonus would have depended on a clear record of performance. Having been suspended, it could not be said that the employee performed so well that he would have been entitled to a bonus.”

The above dictum amplifies the principle that the decision to grant or award a bonus to its employee is entirely within the employer's discretion and is dependent on the employee's performance.

What can be gleaned from the above is that the arbitrator, as well as the court a quo, could only interfere with the appellant's decision to implement a performance-based bonus scheme if it was found that an error had been made or if the employer, in implementing the scheme, had acted on the wrong principle or if the employer allowed extraneous or irrelevant factors to guide or affect it or if it did not take into account some relevant consideration.

Regarding the performance based bonus system, the Labour Court held as follows;

“I agree with the arbitrator that failure to appraise employees of putting such a system in place and go on and base the salaries on the system is unfair and unjust and not in keeping with the Labour Act. Section 5 of the Labour Act prohibits discrimination on any other matter related to employment and in any matter relating to wages and benefits. The employer has an obligation to advise the employee, in writing, of the remuneration and how it shall be arrived at.”

It is evident from the remarks above that the court a quo upheld the arbitrator's decision that declared the bonus illegal on the premise that the respondents were not informed about the scheme prior to it being implemented.

It is my view that the finding by the court a quo cannot be assailed because employees have a right to be informed about decisions pertaining to their employment conditions of service - even if the decisions are made in the exercise of an employer's discretion. The appellant, as the employer, had a duty to notify all employees about its decision to start a performance-based bonus scheme before implementing it.

However, that said, the court a quo erred in upholding the order awarding the respondents back-pay. As correctly argued by the appellant, once the court a quo found that the performance based bonus scheme was illegal, it should not have upheld an order awarding back pay based on an illegal scheme. A finding that an arrangement is turpious is incompatible with an order enforcing the same as was done in casu by requiring that the employees be paid in terms of an allegedly unlawful arrangement. This is what is referred to as the ex turpi causa principle. The order of the arbitrator and that of the court a quo upholding the former, contravenes this principle, and, as a consequence, the principle is offended by an order enforcing what has been held to be illegal. In addition, a court cannot lend itself to an illegality. See Dube v Khumalo 1986 (2) ZLR 103; Foroma v Min of Public Construction & Anor 1997 (1) ZLR 447 (H).

The court a quo failed to appreciate the point that an arbitral award cannot be founded on an illegality. An illegal act is void and cannot be enforced. As LORD DENNING stated in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC)…,.:

“If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The above dictum is apposite.

In casu, once the Labour Court found that the performance based scheme was illegal, which bonus scheme the arbitrator had declared illegal, it was incumbent upon it, as an Appeal Court, to set aside the arbitral award upon which the back-pay was awarded. The court, however, notwithstanding its finding of illegality, went ahead to uphold the award. In this respect, the court a quo erred.

In an appeal, this Court will not simply deal with the direct dictates of an order but also its effects. In Williams & Anor v Msipa N.O. & Ors SC22-10, the court said:

“The court must be able to intervene not only against the direct dictates of the judgment of the lower court but also against its effects. See Macdonald v Canada (AG) (1994) I SCR 311 @ 329.”

The effects of the judgment of the court a quo is to sanction an illegality. The judgment does not serve the law. Rather, it enforces what it has itself found to be void. There is a patent contradiction. Accordingly, its decision should be set aside on that basis….,.

It follows that the judgment of the court should be set aside in its entirety.

In the result, the following order will issue:

1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and in its place is substituted:

“(i) The appeal be and is hereby allowed with costs.

(ii) The arbitral award by the learned arbitrator, I Bonda, dated 23 October 2012, be and is hereby set aside.”

“This matter demonstrates the challenges which emerge from parties pursuing the same issue before different judges who may each be seized with different aspects of their appeals. The result is divergent judgments from the same court.

Whereas CHIVIZHE J made a finding that bonus is payable at the discretion of the employee and is not an entitlement, I made the decision that, in this case, it was a contractual entitlement given the circumstances of the case…,.”

The above remarks, made by the court a quo in its ruling granting the appellant leave to appeal in this matter, aptly summarises the situation that arises in this appeal. Two conflicting judgements were handed down by the Labour Court regarding whether or not the appellant is liable to the respondent for the payment of bonus and damages related to bonus.

The two judgments were given on different dates. One was given in an appeal against an award by an arbitrator on the merits of the award. The other was given in a judgment quantifying the award….,.

The facts giving rise to this appeal are largely common cause.

In 2008, the respondent was employed by the appellant as a Sales and Marketing Manager. On 1 June 2010, he was moved to operations as a Manager. Feeling side-lined and demoted by this move, he reported the matter to a labour officer. Failing conciliation, the matter was referred to arbitration. On 11 October 2011, the arbitrator ordered, inter alia, that the respondent “suspends the demotion exercise” and negotiate a new contract with the respondent. He further ordered that in the event that the parties failed to negotiate a new contract, they were to negotiate the quantum of damages payable to the respondent in lieu of reinstatement to his former position as Sales and Marketing Manager.

It is true an employee who is on secondment to another branch of the employer or enterprise is transferred on a temporary basis. He remains employed by the seconding office or employer: see Shumba v Commercial Bank of Zimbabwe HH100-06 and Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S].

In Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S], Dairibord, the employer, had seconded Muyambi, the employee, from its main operations in Zimbabwe to one of its subsidiaries in Malawi, on a contract of secondment. Disgruntled by alleged non-performance, in Malawi, Dairibord terminated the contract of secondment. The Supreme Court held that the termination of Muyambi's contract of secondment had not terminated his original contract of employment in Zimbabwe.

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society.

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

(c) Option form.”

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full....,.

In February 2011, TRIANGLE announced a further annual salary review together with changes to the structure of employment benefits. Members were asked to agree to and sign for these changes by 7 March 2011. Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, reads as follows:

“Dear Mrs Eston,

The structure of your remuneration package has been reviewed in the context of the need to align the employee remuneration framework…,. It is confirmed that your actuarily calculated benefit in the TSSPF is to be based on the USD$ salary that has been used to determine your Fund contributions since 1 January 2009…,.”

It is common cause that TRIANGLE put in place an arrangement whereby each of its employees received a payment in United States dollars after dollarization in 2009. The arrangement was that each of its employees would receive payment in United States dollars, and, in respect of members of the Triangle Senior Staff Pension Fund who opted to remain with the Triangle Senior Staff Pension Fund, the question of the extent to which any payment or portion of payment in United States dollars was to be treated as a basic salary, and therefore pensionable, remained open.

TRIANGLE then purported to 'restructure' the conditions of employment of its employees, starting with the E Band employees. After negotiations with senior employees, the final restructured package was set out in a letter dated 31 July 2009. The letter carried a caveat that the employees would be advised, in due course, of the extent to which the current cash package would be pensionable. It is common cause that 11 of the E Band employees signed the letter. It was contended on behalf of TRIANGLE that, by accepting the revised remuneration offered each month thereafter 31 July 2009, the employees accepted this position by their conduct.

On 19 January 2009, a similar letter was dispatched to middle management employees, D Band. The letter was prepared by some of the E Band employees. 21 out of the 22 D Band employees signed the letter in acceptance of the 'restructured package'. Thereafter, restructuring of the salaries and other terms of employment of supervisory and skilled staff, C Band employees, was dealt with by way of a letter dated 24 August 2010. 29 out of the 34 C Band employees signed the letter and indicated acceptance of the revised terms.

The applicants contended that these changes to the conditions of employment were imposed unilaterally. It was submitted on behalf of TRIANGLE that the evidence does not support this contention.

I find myself in agreement with the position adopted by TRIANGLE, that the 'restructuring' of the remuneration packages was done in consultation with senior staff, E Band employees. It is common cause that 61 out of the 66 applicants signed acceptance of the new conditions of employment. Subsequently, the employees who had signed the letters received increases in their monthly cash packages which indicate further acceptance of the changes in their contracts. The letter of 16 August 2010 repeated the assertion that the review of the status of Defined Benefit Funds and of the Triangle Senior Staff Pension Fund was still in progress. The applicants continued to accept payment of their 'restructured cash package' on that basis.

Are the applicants bound by an issue estoppel?

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”...,.

The court finds that the applicants are estopped from enforcing their existing interests in the Triangle Senior Staff Pension Fund in the sense of recouping arrear contributions from TRIANGLE.

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order:

“1. The Respondent's objections in limine are dismissed.

2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted.

3. It is hereby declared that the Applicant is entitled to purchase [the] motor vehicle, namely, a Mazda Familia Registration number AAM 7769 at 10% of its market value.

4. The Respondent is directed to cause an evaluation of the said motor vehicle to establish its open market value and to sell to the Applicant the vehicle at 10% of the market value so established.

5. The Respondent shall pay the costs of suit.”...,.

In this matter the applicant sought an order declaring, in the main, that she was entitled to purchase a certain Mazda Familia motor vehicle, registration no. AAM 7769 (hereafter referred to as “the motor vehicle” or “the vehicle”), at 10% of the market value. The facts were largely common cause. They were these;

The applicant had just resigned from employment with the respondent after five years. The motor vehicle had been a company car issued to her in terms of the respondent's motor vehicle policy. She applied to buy it. Initially, the sole dispute was whether the applicant was entitled to buy the vehicle at 10% of the market value as she contended, or at the market value, less 10%, as the respondent contended. The applicant based her claim on a document that she said was the relevant motor vehicle policy that governed her employment.

The respondent based its contention on another document that it said was the amended policy that had been introduced during the applicant's tenure of employment and which, allegedly, had replaced the applicant's document.

With time, the dispute escalated to include the argument that the sale of any company vehicle to incumbent holders was at the discretion of the respondent as the employer and owner of such vehicles and that in the applicant's case, the respondent had decided against selling. It was also argued that when initially the respondent had communicated its offer to her the applicant had purported to accept something else which had not been in the respondent's offer....,.

The crux of the matter before me was which of the two documents touted by the parties as the motor vehicle policy governed the applicant's employment at the relevant time?

Two other issues raised, somewhat belatedly, were;

(1) Whether or not the respondent had agreed to sell the motor vehicle to the applicant; and

(2) If it had, at what price?

I had no hesitation in dismissing the respondent's document. In my view, it was a clumsy counterfeit.

Both documents were fairly extensive and comprehensive. One remarkable thing about them was that the print, the font, the graphics, the design, the layout and virtually everything else, was identical. Even the wording was identical, except only in the one clause germane to the dispute. That was clause 11.0. In my view, that was where the respondent got caught out.

I shall demonstrate this.

The heading on the applicant's document, in upper case, was “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The respondent argued that this document had been amended or replaced in May 2011. Incidentally, the applicant had resigned from employment in June 2011. If the applicant's document had been amended or replaced in May 2011, one would reasonably expect the amending or replacement document to reflect the date of its own inception or, at least, to say something different somewhere. But except for clause 11.0, it did not.

The respondent's document was also headed, in identical font and case, “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The second part of the heading of the applicant's document read “AMENDMENT NO.1 OF JANUARY 2011”. The respondent's document was also headed “AMENDMENT NO.1 OF JANUARY 2011”.

How could both documents purport to be the same amending document and purport to be amending the same old policy?

But, that was not all.

On the applicant's document, after the headings, there followed some twelve main clauses, some with sub-clauses. These were spread over some nine pages, starting with clause 1.0 up to clause 12.0. The contentious clause, 11.0, headed “DISPOSAL”, was towards the bottom of page nine on the applicant's document. It was exactly the same on the respondent's document; the only difference being that in the case of the respondent's document, clause 11.0 occupied a slightly larger space, and, consequently, left not enough room for the next clause, namely, cause 12.0. Both documents indicated that they went up to page ten. However, page ten of the applicant's document was not attached. But this was immaterial. It was not even an issue. The dispute centred on clause 11.0.

I shall come to it in a moment. For now, I continue with my analysis of the other areas so as to place clause 11.0 in context.

Clause 1.1 on the applicant's document said; “This amended policy shall be effective from 1^st May of 2011 and its implementation will not be in retrospect.”

The corresponding clause on the respondent's document said exactly the same thing. On the foot of every page on the applicant's document were boxes with names and signatures of two of the respondent's officials who had prepared and approved the policy. In the boxes, apart from the names and the signatures, were three inscriptions stating that it was Motor Vehicle Policy No.1 of 2011, which was effective from 1 May 2011 and was replacing Policy No.1 of 2008. It was exactly the same thing on the respondent's document.

The respondent continued to argue that its document replaced the applicant's document in May 2011 but gave no exact date when this had been. I rejected that contention. It was manifestly untruthful. How could the respondent's document be effective from the same date as that of the applicant's?

The respondent accepted the applicant's document as genuine.

So, if the applicant's document had been first in time, as the respondent acknowledged, how then could its own document apply retrospectively given that clause 1.1 in both documents was against retrospective application?

The applicant maintained that the respondent's document was a fabrication. She said if at all it had been brought in at some stage, then it could only have been after her departure as nobody had brought it to her attention during her tenure.

That sounded plausible enough to me.

The next clause after clause 11.0 on the applicant's document was an incomplete clause 12.0 headed “EXISTING VEHICLES”. Its sub-clause [i.] was accommodated on the bottom of page nine. The whole of clause 12.0 on the respondent's document was on page ten. None of its sub-clauses could be accommodated on page nine. That was because on the respondent's document clause 11.0, the bone of contention, had some words altered, some added in, and a whole new sub-clause inserted. On the applicant's document clause 11.0 read as follows:

“11.0 DISPOSAL

(i) On the attainment of 120,000km mileage, comprised of monthly allowable business and private mileage or upon attaining of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may be offered to the employee for purchase.

(ii) An employee whose vehicle is being replaced will have the right of first refusal offer to purchase the vehicle at 10% of open market value or at book value, whichever is the lesser.”

On the other hand, clause 11.0 on the respondent's document read like this:

“11.0 DISPOSAL

(i) Upon the attainment of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may [author's emphasis] offered to the employee for purchase.

(ii.) The vehicle may be purchased at market value less 10% or depreciated net book value, whichever is the lesser.

(iii) The Group Chief Executive Office will approve the disposal of all company cars.”

It was not difficult to see that the new clause 11.0 in the respondent's document had far reaching changes which constituted a serious diminution of rights and benefits accorded to employees under the old policy. Demonstrably, those changes were meant to ward off the applicant's claim.

For example, and to begin with, the applicant's clause 11.0 only had two sub clauses. The respondent's had three. Next, the reference to a mileage of 120,000 kilometres in the applicant's document was completely scrapped off in the respondent's. It was common cause that the applicant's vehicle had clocked over 165,500 kilometres on the dash board. Furthermore, by highlighting, in the respondent's document, the word “may” in the obligation to offer the vehicle for sale, it was obviously meant to emphasize the discretion of the employer in that regard - that was the bulwark of the respondent's argument at the hearing.

However, and more importantly, the price at which the vehicle could be sold was increased phenomenally from 10% of the open market value to a market value less 10%. The whopping difference was dramatized by the figures that were disclosed in the papers. After some three valuations the vehicle's open market value had been agreed at $3,500. The applicant had tendered $315, being the 10% of the market value less another 10%. The respondent rejected that and demanded a purchase price of $3,150 which was the market value less the 10%. Finally, in the new document, the respondent's highest office would now have to be involved in the disposal of such vehicles, something that was not there in the applicant's document.

There was nothing to suggest that clause 11.0 in the respondent's document was a genuine amendment. Even if it was, there was nothing to show that it had been effected during the applicant's tenure of employment, or that it had been brought to her attention and that she had consented to it. What I found probable was that clause 11.0 in the respondent's document had been inserted after the fact. Therefore, that document was not the actual motor policy vehicle that was in place during the applicant's tenure of employment. It was partly for that reason that I found for the applicant.

But, there were other reasons.

As pointed out before, the respondent's argument was further developed to say that it had the sole discretion to sell or not to sell company vehicles to incumbent users and that it was not obliged, in terms of the motor policy, to sell to the applicant.

Predictably, the spotlight was on the word “may” to stress the discretion reposed in the respondent in that regard.

The respondent's argument was also developed to say that even if I found that it had agreed to sell to the applicant, the sale was not perfecta, allegedly because what the respondent had offered is not what the applicant had accepted. It was put this way in the respondent's heads of argument:

“6.2 Further, for a contract to be formed it is necessary that the offeree must, in agreeing, accept the exact terms offered by the offeror. Where the offeree makes a counter-offer or signifies a qualified acceptance of the offer, the offer is taken to have been refused and no contract is formed – see Orion Investments (Private) Limited v Ujaama (sic) Investments (Private) Limited 1987 (1) ZLR (sic).

6.3 The Applicant was made an offer to purchase the vehicle, the Applicant accepted an offer that was not made to her, and, as such, no contract came into existence.”

The fallacy in the respondents' two arguments above is exposed by the detail. It was abundantly clear from the motor vehicle policy that, among other things, the possession of a company vehicle for both business and private use for certain grades was an integral employment benefit. It was said company vehicles were provided for those grades as part of a competitive, market-related package to cater for the employees' specific operational needs so as to capture best and modern reward practices. Clause 3.1 was more succinct:

“3.1 There are two reasons why the Company issues motor vehicles to employees. The first is due to seniority of the employee, such as a manager, in order that he or she can undertake the work necessary at the level at which that person is employed and also as part of the remuneration package of that individual. These will be issued with Company cars.”

I am not suggesting for a moment that the right of an employee to a company vehicle entails the right to buy it. But, in this case, it was against the philosophy of the respondent on company vehicles, as set out above, that I had to consider clause 11.0. It was the clause that provided for the sale of company vehicles to incumbent holders. That philosophy was further elucidated in clause 4.3 as follows:

“4.3 A 'company car' is one allocated to an individual in recognition of one's managerial status. It is a benefit accruing to an individual as part of his or her conditions of service. The employee is entitled to use it for both company and personal business, subject to the provisions of this policy.”…,.

Thus, in a nutshell, and in my own words, at the respondent's company, company vehicles were a reward or benefit for certain senior grades. They were an integral part of the conditions of service.

The applicant had been employed by the respondent as Group Audit Manager. It was common cause that her grade entitled her to a company car. It was also common cause that for her grade, and, in particular, in terms of clause 11.0, she was entitled to expect the respondent to sell her the vehicle after it had clocked a mileage of 120,000 kilometres, or had reached the age of five years if it had been in use for not less than three years. The applicant was also entitled to expect that when the respondent offered her to purchase the vehicle the purchase price would be 10% of the market value.

In my view, such expectation could not be taken away unilaterally by the respondent. To take it away, as the respondent had purported to do with its document, would amount to an unlawful diminution of the applicant's conditions of service: see Administrator, Transvaal and Ors v Traub and Ors 1989 (4) SA 731; Dube v Chairman, Public Service Commission & Anor 1990 (2) ZLR 181 (H); Health Professions Council v McGowan 1994 (2) ZLR 392 (S); Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S); Taylor v Minister of Education & Anor 1996 (2) ZLR 772 (S); Kanonhuwa v Cotton Co. of Zimbabwe 1998 (1) ZLR 68 (H); and Air Zimbabwe (Pvt) Ltd v Zendera & Ors 2002 (1) ZLR 132 (S).