Municipality of Marondera v Pedzai Samhungu and Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
HARARE, 09 APRIL, 2025
16 April 2025
JUDGMENT NO LC/H/161/25
CASE NO LC/H/497/24
In the matter between:-
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==============================IN THE LABOUR COURT OF ZIMBABWE
HARARE, 09 APRIL, 2025
16 April 2025

Judgment No LC/H/161/25
Case No LC/H/497/24

In the matter between:-

MUNICIPALITY OF MARONDERA

APPELLANT

AND

PEDZAI SAMHUNGU AND OTHERS

RESPONDENTS

Before the Honourable Kachambwa J

For the Appellant: Mr B. Pesanai

For the Respondents: Mr D. T. Mwonzora

KACHAMBWA, J:

The Appeal

1. This is an opposed appeal against the decision of an Arbitrator. The grounds of appeal are that;

“1. The Hon Arbitrator erred at law and grossly misdirected himself in finding without legal basis that the Respondents had a reasonable and legitimate expectation to be re-engaged.

2. The Hon Arbitrator erred at law and grossly misdirected himself in finding without legal basis that other people were engaged in place of Respondents when the issue of engagement was immaterial since there was no legitimate expectation established on the part of Respondents to be re-engaged.

3. The Hon Arbitrator erred at law and grossly misdirected himself in finding without legal basis that the Respondents were unfairly dismissed”.

2. The Appellant prayed for the success of the appeal with costs and therefore the dismissal of the claim for legitimate expectation of re-engagement.

Background

3. The Appellant employed the Respondents on a fixed term contract reviewed monthly. Some of the contracts had run for over two years before they were not renewed. The contracts contained a clause 4 that read that;

“This contract will automatically terminate at the expiry date with no expectation of being renewed. There shall be no legitimate expectation to be employed by council. No notice will be given”.

4. Despite the existence of this clause the Arbitrator found that there was legitimate expectation to be re-engaged. This finding was made following what the Arbitrator called a persuasive quote from an article written by a Labour consultant. The article accepted the precedent in the case of Kundai Magodora v Care International Zimbabwe SC 24/2024 but said that each case will be considered on its own merit. The Arbitrator also relied on a South African article from a newsletter. The article claims that the continued renewal of the contract negates the clause that says that there would be no legitimate expectation of renewal. The Arbitrator also relied on South African precedent that said that the conduct of the employer could still lead to legitimate expectation despite the existence of the no legitimate expectation clause. The Arbitrator thus went against current Zimbabwe precedent and followed foreign precedent. This was done without any distinction or justification. There was no discussion on why or how the current Zimbabwe position did not apply.

Arguments Before The Court

5. Before this Court the parties were asked whether the local precedent of **Kundai Magodora** supra was still applicable and both parties agreed that it did. Parties were invited to make any new submissions that could lead to a new position and none had any new argument. The parties were in agreement that the clause indeed subverted the law but that as long as the precedent is in place it applied. Consequently the appeal was allowed. It is surprising that the respondent still asked for reasons for the decision.

6. The history of the no legitimate expectation clause is that companies were seeking a safe way of terminating employment for employees despite the job being available. Many companies have adopted this clause and the Supreme Court has approved it. It is a way to avoid the legitimate expectation clause in the Labour Act [Chapter 28:01]. In **U.Z.C.S.F v Shamuyarira** SC 10/2010 the court held that;

“In principle it is not open to the courts to write a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted even if they are shown to be onerous or oppressive”.


The case of **Kundai Magodora** supra is on all fours with that of **UZCSF v Shamuyarira** SC 10/2020. It also said that;


“Apart from the clear wording of section 12B(3)(b), we cannot avoid the explicit provisions of the contract in casu. The opening paragraph of each of the contracts stipulates that ‘This contract shall in no way whatsoever lead to a legitimate expectation of further employment beyond the contract’s date of termination’. This in itself, as was recognised by Ziyambi JA in Shamuyarira’s case, indisputably undermines and renders untenable the appellant’s contention of having been unfairly dismissed. They are surely bound by the express terms that they have agreed to and cannot then complain notwithstanding those terms, that they had a legitimate expectation of being re-engaged.”

7. The position in the cited cases still obtains in the present appeal. Therefore this appeal fails as well. It is accordingly ordered that;

1. The appeal be and is hereby upheld with costs.
2. The decision by the Arbitrator dated 16th April 2024 be and is hereby set aside and replaced as follows;
   2.1. The claim for legitimate expectation and unfair dismissal be and is hereby dismissed with costs.
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