Ladistous Zunde v The Headmaster, Cranborne High School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/622/13
HELD AT HARARE 4TH NOVEMBER 2013
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/622/13

HELD AT HARARE 4TH NOVEMBER 2013	         CASE NO LC/H/593/11

AND 22ND NOVEMBER 2013

In the matter between:-

LADISTOUS ZUNDE					Applicant

And

THE HEADMASTER, CRANBORNE			Respondent

HIGH SCHOOL

Before The Honourable Justice L.M. Murasi

For Applicant		Ms Maheya with Applicant

For Respondent		Ms Kuipa (Civil Division)

MURASI, J

Applicant is dissatisfied with Respondent’s refusal to pay his incentives amounting to $4400.00 from the date his dismissal to the date of his reinstatement.

The facts in this matter are clear.  Applicant was dismissed from employment by Respondent and appealed to the Labour Court.  The Court upheld his appal and ordered his reinstatement without loss of salary and benefits. Applicant was duly reinstated and the employer paid him his dues as per Court order.  The incentives paid to other teachers during the period he was dismissed were not paid to him and it is this amount that has prompted Applicant to approach this Court.  He alleges that these are part of benefits which accrued to him.

At the beginning of the hearing a letter was produced by Applicant which is dated 7th June 2013.  This letter comes the Acting Principal Director, Finance and Administration, Human Resources and Discipline in the Ministry of Primary and Secondary Education.  To a large extent, the letter confirms that the Ministry has complied with the Court Order.  The letter further states that;

“Please be advised that incentives are not a condition of service and are therefore not paid by the Ministry or the Public Service Commission.  Such are paid by the School Development Committee of the school and we would advise that you liaise with the responsible office in order to have this matter resolved.”

The issue to be resolved is which is the “responsible office” which should be approached.  Applicant averred that it was the Headmaster of the school who should approach the School Development Committee (SDC).  Applicant states that this argument is bolstered by the fact that when the Headmaster was approached in connection with this matter he had undertaken to discuss the issue with the SDC.

Respondent on the other hand, states that Applicant should have cited the School Development Committee since it is the one responsible for paying the incentives to teachers.  Respondent further stated that incentives were introduced in the years 2008 and 2009 in order to keep teachers in school.  Respondent further submitted that government introduced Circular 30 of 2008 which authorised school authorities to pay ten percent (10%) of revenue calculated as incentives to teachers.  This circular was forwarded to Provincial Education Officers (PEO) District Education Officers (DEO) and school heads.  Respondent further submitted that incentives are not a condition of service and that as Applicant was not rendering any service during the period in question, he was not entitled to it.

Firstly, a look at the original order made by the Court is necessary.  That order, dated 24th August 2012, was granted in favour of Applicant.  The Order was made against the Public Service Commission (PSC), the Ministry and the Headmaster.  The Ministry has stated that it has since complied with the Order in so far as salary and benefits in terms of Applicant’s contract is concerned.  Respondent has stated that incentives are not a condition of service.  The Respondent cited in this application is the Headmaster of Cranborne High School.  Applicant has not included the Public Service Commission and the Ministry presumably realising that the two had already complied with the Court Order.  However, was it then, proper to cite Respondent in the circumstances where the Public Service Commission and the Ministry are not party to such proceedings?  Respondent is but an extension of the Ministry.

School Development Associations for government schools are established in terms of the Education (School Development Associations) (Government Schools) Regulations, 1998 Statutory Instrument 379 of 1998.  Section four of the Regulations provides:

“Every school development association established in terms of section 3 shall be a body corporate capable of suing and being sued in its own name and, subject to the Act and these regulations, capable of performing all acts that bodies corporate may perform.”

The objects and functions of the School Development Associations

are provided for in sections 5 and 6.  The evidence shows that it is this institution which was responsible for raising the amounts to be paid to teachers as incentives.  The Regulations are silent as to the involvement of central government on the issue but what is clear is that the incentives did not and do not come from central government.  They come from the body corporate so-described in the Regulations.

It is therefore clear that the Ministry and by extension its lawful representative, cannot be held liable for the payment of the incentives due to Applicant.  Further, the School Development Association was not made part of the Order that was issued by this Court on 24th August 2012.

In the result, the Court finds that there is no merit in the application and it is accordingly dismissed.

There is no order as to costs.

Zimbabwe Progressive Teachers Union, Applicant’s Representative

Civil Division of the Attorney General’s Office, Respondent’s Legal Practitioners