Voedsel Tobacco International V Wilton Mutupiri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/409/16
HELD AT HARARE 26 MAY 2016
CASE NO
JUDGMENT NO LC/H/409/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/409/16

HELD AT HARARE 26 MAY 2016				CASE NO LC/H/798/15

& 8 JULY 2016

In the matter between:

VOEDSEL TOBACCO INTERNATIONAL 			Appellant

And

WILTON MUTUPIRI						Respondent

Before The Honourable P Muzofa, Judge

For Appellant			E T Muhlekiwa (Legal Practitioner)

For Respondent		A F Majacheni (Legal Practitioner)

MUZOFA, J:

This appeal arises out of the award by an arbitrator made in favour of the respondent.

The facts of this case are common cause.  They are as follows.  The appellant engaged respondent on a fixed term contract for the period 4 March to 4 August 2015 as a tobacco buyer.  Three months into the contract on 7 June 2015 the appellant terminated the contract on the basis that there was no more tobacco to buy.  The respondent referred the dispute to a labour officer and subsequently the parties appeared before an arbitrator.

The arbitrator ordered the appellant to pay the respondent for the unexpired period of two months.

The appellant was aggrieved by the award and now appeals to this court on the following grounds:

The honourable arbitrator grossly misdirected himself which misdirection amounts to a point of law by dismissing the appellant’s defence that the contract of employment had become incapable of performance which was the case in casu in the contract between appellant and respondent.

The arbitrator grossly misdirected himself which misdirection amounts to a point of law by dismissing the appellant’s argument of supervising impossibility thereby relying on respondent’s mere assertions which are not supported by evidence at all.

The issue that falls to be decided by this court is a narrow one.  It is whether the

contact between the parties became incapable  of performance due to a casus fortuitous event in that there was no more tobacco for the respondent to buy.

In other words appellant says the it became impossible to fulfil the contract since there was no more business.

Appellant relied on various authorities to demonstrate that vis major and casus fortuituous are circumstances which contractual obligations may be discharged by operation of law.  Indeed this is the correct position of law as set out in the cited cases of Rebel Discount Liquour Group (Pty) Ltd v La Rochelle ERF 615 Investments CC CASE No SA A1043/04.

It was also argued that where the impossibility is temporary the obligation maybe suspended temporarily, however where it is final the obligation is extinguished.

To that extent in casu appellant submitted that neither of the parties had anticipated that there would be no tobacco to purchase before the expiry of the contract of employment.  Therefore appellant’s obligation should be extinguished, it therefore lawfully terminated the contract of employment.

Respondent conceded that a supervening impossibility relieves a party from its contractual obligations.  In this case, it was submitted that there was no proof that there was a vis major.  The appellant did not prove before the arbitrator nor this court that indeed there was not more tobacco to buy.  The so called supervening impossibility remained a bare assertion.  It did not exist particularly considering that tobacco selling is at its peak in June then it begins to drop in July towards the final sales in August.  This averment by respondent was not specifically controverted by the appellant.

John Grogan in Workplace Law 8 ed, Juta at p 85 opines that supervening impossibility applies to all contracts including contracts of employment.  If either party becomes permanently unable to perform his/her obligations such obligations may be extinguished.  The party seeking to rely on impossibility should not have brought about that impossibility.

In Mr Snow Crystal Transport Ltd t/a National Ports Authority v Owner of Mr Snow Crystal 2008 (4) SA 111 (SCA) at 128 it was held

“As a general rule impossibility brought about by vis major or casus fortuituous  will excuse performance of a contract.  But it will not always do so.  In each case it is necessary to look to the nature of the contract, the relation of the parties, the circumstances of the case and the nature of the impossibility invoked by the defendant, to see whether the general rule might, in the particular circumstances of the case, to be applied.  The rule will not avail the defendant if the impossibility is self-created, nor will it avail the defendant if the impossibility is due to his or her fault.”

The circumstances of the case therefore become a critical factor in deciding whether the defence is applicable.  In our jurisdiction the defence has been allowed in very compelling circumstances.

It must be shown that the impossibility is objective and absolute in contradisction to one that is subjective or relative.  See Chirago v Msimuko 2002 (2) ZLR 368 (H) at 380 C – E where it was held that shortage of foreign currency did not constitute an absolute supervening impossibility.

Taking into account the totality of the circumstances of this case and the nature of the contract of employment the defence of supervising impossibility cannot excuse the appellant.

The contract of employment which is part of the record does not include a term to cover such an instance as a ground to terminate employment.  Unlike ordinary contracts where parties might have equal bargaining power, in an employment contract although it can be said these are equal parties, the fact is that the employer wields the better muscle.

In casu the appellant drafted the terms and conditions of service.  It decided the period within which it believed it would require the services of the respondent, which period I believe is the tobacco season.

The alleged supervening impossibility was not proved.  Before the arbitrator nothing was adduced to show that indeed there was no more tobacco.  Respondent raised the issue that no evidence was available to prove the supervening impossibility before the arbitrator.

Despite that the appellant on appeal to this court failed to prove this alleged supervening impossibility.  Contrary to that respondent alleged that June was actually the peak of the tobacco buying period and it ebbs toward the end of season of August.

Appellant did not controvert this assertion.  The party relying on supervening impossibility should demonstrate that the supervening impossibility indeed exist.

In other words, the appellant’s subjective inability to take the contract to its agreed end cannot be confused with the objective impossibility that must prevail for its plea of supervening impossibility to succeed.

The appellant therefore failed to demonstrate that it lawfully terminated the fixed term contract before its expiration.  The appellant’s defence that there was a supervening impossibility cannot exonerate it.

I agree with the arbitrator the appellant unlawfully terminated the contract and respondent should be paid for the remainder of the contract period, that is two months.

According to the contract of employment respondent’s salary was $30000 per month.  Respondent’s entitlement would therefore be $6000 less any statutory deductions.

Accordingly the appeal be and is hereby dismissed.

The arbitral award is upheld, the appellant is ordered to pay $6000 to the respondent less any statutory deductions.

Mahuni & Matutu Attorneys, appellant’s legal practitioners

Mberi Chimwamwombe, respondent’s legal practitioners