Japhet Moyo v Zimbabwe Congress of Trade Unions & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/142/2025
HARARE, 28 NOVEMBER 2024
CASE NO LC/H/1052/24
In the matter between:-
JAPHET MOYO
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/142/2025

HARARE, 28 NOVEMBER 2024    CASE NO LC/H/1052/24

In the matter between:-

JAPHET MOYO    APPLICANT

ZIMBABWE CONGRESS OF TRADE UNIONS 1st RESPONDENT

FLORENCE MUCHA TARUVINGA N.O    2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant    Ms R.R. Mutindindi (Legal Practitioner)

For the Respondent    Adv. S. Banda (Legal Practitioner)

KUDYA, J:

This is an application for the review of a decision by the (ZCTU) Zimbabwe Congress of Trade Unions to retire its Secretary General, one Moyo, upon the attainment of age 60 years. Moyo was not happy about the decision to retire him at 60 years. He therefore filed the instant application where he seeks that such a decision be reviewed and set aside. He prays that in its place he be reinstated to his job without loss of salary and benefits. ZCTU is opposed to the grant of review relief.

It filed extensive submissions in limine challenging the propriety of the review application. On the hearing date parties agreed that all points in limine be dropped and that the court only entertains the merits of the review application. This judgement therefore only concerns itself with the merits of the case since all the points in limine were dropped on the hearing day.


The review application is premised on the primary fact that it was grossly irregular in that:

1) It violated the contract between the parties.
2) It was not in line with Section 13 of the ZCTU Constitution.
3) It violated Section 12 (4)(a) Labour Act.
4) The conditions of service on which it was based are not applicable or non-existent.
5) It violated Moyo’s right to be heard.

In the result Moyo prayed that the review application be granted, the decision of 7 August 2024 by ZCTU retiring him be set aside, in its place he be reinstated to his original position without loss of salary or benefits or that he be paid damages if reinstatement is no longer feasible. He prayed finally that; he be awarded costs on a legal practitioner scale.

In response to the review the ZCTU maintained that: -

The decision to retire Moyo at 60 was not grossly irregular in that:

1) It did not violate the contract between the parties. The contract was silent on retirement at age 65.
2) Section 13 of the ZCTU Constitution does not govern retirement.
3) The decision to retire Moyo did not violate Section 12(4)(a), Labour Act.
4) The conditions of service on which retirement was based are applicable to Moyo. He had also previously retired fellow employees of ZCTU under the same conditions.
5) There was no violation of Moyo’s right to be heard. ZCTU acted as was common practice with retirements of employees who were retired by Moyo.

In the result, ZCTU prayed that the review application be dismissed with costs on a legal practitioner client scale.

Each of the review grounds is addressed below:

- **Ground 1**

There was a protracted dispute between the parties as to which contract the court had to rely on, in the matter. The critical discourse was around the dates where Moyo wanted the court to use the 2011 date whereas ZCTU wanted the court to use the 2012 date. It need be noted that the dates contest was one of the main issues which was put to paid by the dropping of the points *in limine*. The argument that therefore remained about the contracts was that Moyo sought to have the 65-age limit in line with NSSA regulations imported into his case. It is clear on the authority of **City of Harare v Mubvumbi SC64/18** that, the pension regulations do not set the retirement age. If there is need for that such has to be incorporated into the contract.

In the case at hand, there is nowhere in applicant’s contract where the contract says retirement shall be at 65. On account of the contest on the contracts there is equally nowhere where it says retirement shall be at 60. ZCTU sought to refer to a document which it said previous employees were being retired at 55 but that again could not solve the issue of where the 60 years came from. It is clear that one cannot say retirement was as per the contract which contract is in contest. One can also not say that it should have been at 65 yet the contract also does not say so. The decision to retire applicant based on the disputed contractual provisions can therefore not stand.

**Ground 2**

Section 13 of the ZCTU Constitution states the following:

“Any official of the Congress shall be removed from office ……” The section then goes on to list the circumstances under which removal shall take place. Retirement is certainly not cited as one of the circumstances. The cited circumstances speak to acts of misconduct which do not come anywhere near the retirement construct. There is therefore no merit in arguing that retirement should have been as per section 13 of the ZCTU Constitution. The ground being without foundation should fail.

**Ground 3**

Section 12(4)(a) of Labour Amendment SI 11/23 states the following clearly “A contract of employment may be terminated only on the part of an employee by his or her resignation or retirement ……” What the new amendment has sought to do, is to take away the power of an employer to retire an employee. In the case at hand it is clear that the decision to retire Moyo was at the behest of ZCTU which power it lost under the new law. The argument advanced by Moyo therefore succeeds under this rung.

**Ground 4**

ZCTU argued that Moyo was aware of the conditions of retirement. It went further to say he had retired other employees on that basis, The court was not favoured with such conditions to be able to assess their applicability to Moyo. In any event, Moyo was adamant that, his position was regulated differently from the employees who he retired during his helm. That issue was not sufficiently canvassed or tabled and findings made on it, to the extent that, the decision appeared arbitrary. It need be noted that, this issue is intricately linked with the issues in ground one, where it was not clear which contract had to be used, now it was which conditions.

The resolution of that issue lies in an assessment of the conditions applicable to Moyo and those to the other employees referred to. It is only after that assessment when one can conclude whether the decision to retire Moyo at age 60 was legally sound or not. The ground being merited should succeed.

**Ground 5**

The right to be heard is the cornerstone of the law. It can only be waived when the beneficiary is at fault. See **ZESA v Stefawo SC-29-17**. In the case at hand, it is clear that, the decision to retire Moyo was arrived at without recourse to assessing all the facts on his case and juxtaposing them with the facts of the other employees who ZCTU says Moyo retired during his helm. It is only after such an exercise has been conducted and findings made that one can confidently say that the retirement was proper or not. Since the retirement of 7/8/24 did not satisfy this rung it has to be vacated.

In the ultimate the bulk of the review grounds being merited the review should succeed and ZCTU should invite representations from Moyo so that it can make an informed decision as to whether or not Moyo has to proceed on retirement at age 60. The 7 August 2024 ZCTU decision to retire Moyo at age 60 is therefore set aside.

**IT IS ORDERED THAT**

Review ground 3 being without merit it be and is hereby dismissed. Review grounds 1, 2, 4 and 5 being merited they be and hereby succeed. Decision of 7 August 2024 retiring Moyo is set aside. In its place the matter is remitted to ZCTU to re-look into the question of Moyo’s retirement afresh. Each party bears own costs.

*Shambamuto Law Chambers*  
*Applicant’s Legal Practitioners*

*Mbidzo Muchadehama & Makoni*  
*Respondent’s Legal Practitioners*


LC/H/142/
2025
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