Beatrice Kamuruko & 5 Others v Enbee Clothing

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/400/14
HELD AT HARARE 13TH JUNE 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/400/14

HELD AT HARARE 13TH JUNE 2014		         CASE LC/H/520/13

& 4TH JULY 2014

In the matter between:-

BEATRICE KAMURUKO & 5 OTHERS				Appellant

And

ENBEE CLOTHING							Respondent

Before The Honourable P Muzofa, Judge

For Appellant		L Katsiga (Education Officer)

For Respondent 		G Sithole (Legal Practitioner)

MUZOFA, J:

This is an application for leave to appeal to the Supreme Court made in terms of section 92 F (2) of the Labour Act [Chapter 28:01] ‘the act’ as read with Rule 36 of the Labour Court Rules, Statutory Instrument 59/06 ‘the rules’.  This court dismissed the appeal filed by the applicants in this matter.

The grounds of appeal that applicants intend to approach the Supreme Court on are set out in the notice of appeal.  The respondent raised a preliminary point that the grounds of appeal do not raise questions of law.  If indeed the appeal raises issues of fact then the application cannot succeed.  This is so because in terms of section 92 F (1) of the Act an appeal on a question of law shall lie to the Supreme Court from any decision of the Labour Court.  The term question of law was aptly defined in the case of Muzuva V United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S), 220 (D – F) were it was noted there are three though related definitions

“a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.”

“question as to what the law is.  thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter”

“any question which is within the province of the Judge instead of the jury is called a question of law”

A serious misdirection on the facts amounts to a  misdirection in law as

the giving of reasons that are bad in law constitutes a failure to hear and determine according to law see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S), 670 A – B.

I propose to consider the grounds of appeal from the position of law enunciated above.

The first ground of appeal is that the court erred in finding that the applicant were on fixed term contracts.  This was a factual finding made by the court.  Both parties  submitted that the applicants were of fixed term contracts that were continuously renewed for periods ranging from 2 years to 9 years.  I agree with the respondent this is a factual issue and it was not shown that the court made a serious misdirection on the facts which amount to a misdirection in law.

The second ground of appeal is that the court erred in finding that the subcontracted company became the applicants’ new employer without following the requirements under section 16 of the Act.  The ground of appeal was not put in the perspective of the whole judgment.  The court made a finding of fact that applicants had been offered contracts by the company that was subcontracted.  They refused to sign the contracts.  The court did not even deal with the requirements of section 16 of the Act.  This ground of appeal in as much as it attributes to the court what was not addressed raises questions of fact in so far as the court found in relation to the subcontracted company.

The third ground of appeal finds fault in that the court relied on Statutory Instrument 15/2006 in concluding that fixed term contracts are acceptable.  This ground of appeal questions the applicability of the law on fixed term contracts as set out in Statutory Instrument 15/2006 to the applicants who have a Code of Conduct in place.  This is in my view  a question of law.

The fourth ground of appeal is that the court erred in relying on section 12 B (3) (B) of the Act in relation to the applicants.  This is clearly a question of law.  The question is where an employer continuously renews fixed terms contracts is section 12 B (3) (b) applicable.

The fifth ground of appeal is that the court erred by not granting an order that the applicants were entitled to a retrenchment package since the respondent no longer required their services.  This ground of appeal is closely linked to the first ground of appeal on the finding that applicants were on fixed term grounds.  To that extent this ground of appeal does not raise a question of law.

To the extent discussed above the preliminary point raised partially succeeds.  Accordingly the first, second and fifth grounds of appeal do not raise questions of law.  Therefore the court will consider the application for leave in relation to the third and fourth grounds of appeal.

In an application of this nature the applicants have to show that there are prospects of success on appeal.  There are no prospects of success on the questions of law raised.

The third ground of appeal questions the reference made to Statutory Instrument 15/2006 by this court.  What applicants failed to appreciate was that the law on fixed term contracts as referred in the court’s judgment was derived from the case of Chikonye and Another 1999 (2) ZLR 329.  The reference to Statutory Instrument 15/2006 was an example that statutes and regulations have not changed the common law position on fixed term contracts.  This ground of appeal has no prospects of success.  It is based on the applicants’ failure to appreciate the court’s judgment.

The fourth ground of appeal raises the question whether section 12 B (3) (b) applies to workers on fixed term contracts that have been continuously renewed.  The Supreme Court has made a couple of pronouncements on the issue and a more recent judgment on this issue is Kundai Magodora and Others v Care International Zimbabwe SC 24/14. The Court in that case on page 5 said

“I now turn to the argument that the continual renewal of fixed term contracts over a period of time creates a legitimate expectation of re-employment or permanent employment.  This position, in essence, was rejected by this court in the Shamuyarira’s case (supr)...  My reading of S 12 B (3) (B) of the Act does not give me any ground for departing from that decision.”

Clearly section 12 B (3) (B) was applicable in the case of the applicants.

This ground of appeal has no prospects of success.

The applicants sought to rely on an earlier judgment of this court in Brotherhood v Elphas Munyano & Another LC/H/461/12 for the proposition that that applicants should have been declared permanent workers or an order for retrenchment should have been granted.  That case is distinguishable from the applicants’ case.  The applicants were offered contracts by a company subcontracted by the respondent and refused.  The applicants by their own choice chose not to be employed they were not dismissed.

From the foregoing clearly the application should be dismissed.

The application be and is hereby dismissed.

No order as to costs.