Meja Pwanyiwa v Shamva Gold Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2192023
HARARE, 11 JULY 2023 & 18 JULY 2023
CASE NO LC/H/1194/22
In the matter between:-
MEJA PWANYIWA
APPELLANT
SHAMVA GOLD MINE
RESPONDENT
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In the matter between:-

MEJA PWANYIWA

APPELLANT

SHAMVA GOLD MINE

RESPONDENT

Before the Honourable Kudya J

For the Appellant

L. Pwanyiwa (Unionist)

For the Respondent

T. Munodawafa (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the Designated Agent Mining Industry who ruled that the appellant had not made out a good case of unlawful termination when he approached the Designated Agent with a labour dispute pitting him and the respondent employer.

The background to the matter is that the appellant signed an employment contract for a fixed duration with the respondent. After the expiry of the fixed contract the appellant signed further contracts with Hardsoft mix company. Appellant is of the view that he could not have entered into a fixed contract with Respondent as the as the duties he did were not in sync with a limited duration contract. In fact he says that S I 109/93 being the governing code outlawed the signing of a limited duration contract for the job that he was undertaking. He also reasons that his contracts with Hardsoft were a farce since in his view respondent remained for all intents and purposes his employer as he remained under the supervision of the same supervisor when he was on the fixed term contract. In the result he prayed that the Designated Agent rule that he was on a contract without limit of time.


The Designated Agent ruled that conferring permanent employment status on an employee whose fixed term contract had effluxed by passage of time was tantamount to rewriting a contract for the parties an act which is frowned upon by the law See Care International v Magodora SC-24-14. He reasoned further that such was also tantamount to making a declaration which was not within his jurisdiction. In the result he threw out the application as being without merit.

Aggrieved by the Designated Agent’s determination appellant is now before this court seeking that the court overturn the Designated Agent’s decision and rule that termination of his employment was unlawful and that he was a permanent employee in the spirit of S I 109/93.

It is settled that the appellate court only interferes where it is satisfied that the discretion by the trier of fact was irrationally applied See Hama v National Railways of Zimbabwe 1996(1) ZLR 664 (S). It has been emphasised that the appellate court ought not to interfere only on the basis that it could have arrived at a different conclusion on the same set of facts See Nyahondo v Hokonya 1997(2) ZLR 457.

In the matter at stake it is common cause that appellant signed a fixed term contract with the respondent and such contract expired by passage of time. It is also not contested that SI 109/93 stipulates that the term contract worker was to be used exclusively for tasks excluding normal production underground. Taking that to the letter it would mean that appellant signed a contract which was contrary to his duties. If that were so the question still remains whether it then becomes the duty of the Designated Agent or the court to change such for him.

The answer to that is no as every person has freedom of contracting. It would be irregular for the court to reason that because appellant signed a contract contrary to his duties the court then comes in to stipulate a separate working arrangement. Acting as such would be contrary to the law in Magodora (supra)

In that regard there was nothing remiss for the Designated Agent to rule that he could not contract for the parties Appellant argues firstly that he was influenced to sign contracts which were a hoax with Hardsoft. That again is not an issue for the Designated Agent or the court to determine whether appellant willingly or was coerced to get into the latter contractual arrangements. The court is thus of the same view with the Designated Agent that what applicant seems to seek is a declaration which the Designated Agent or this court is not empowered to grant. If the appellant was of the view that he did not want to be engaged as a contract worker he had the liberty to refuse to sign the contract inconsistent with his duties. In the ultimate the court is satisfied that there has not been any demonstration of abuse of discretion by the Designated Agent satisfying that he had had leave of his senses. The appeal is thus not well founded and should fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed. Each party to bear own costs.

Chimuka Mafunga Commercial Attorneys, Respondent’s Legal Practitioners
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