Section 65(3) of the Constitution of Zimbabwe entrenches the right to engage in collective job action for every employee, serve for members of the security services. It provides as follows;

“Except for members of the security services, every employee has the right to participate in collective job action, including the right to strike, sit in, withdraw their labour and to take other similar concerted action but a law may restrict the exercise of this right in order to maintain essential services.”

Employees, workers committees and trade unions have the right to resort to collective job action to resolve disputes of interest as opposed to disputes of right. In the case of a dispute of right, the basis for the claim is vested in a legal or contractual right, on the other hand a dispute of interest is not based on any existing right but rather seeks to establish a new right like a wage increase.

To acquire protection granted under the Labour Act Chapter 28:01, employees contemplating strike action must follow the prescribed statutory procedure for it to be certified a lawful collective job action. Section 104 of the Labour Act lays down the steps to be observed in convening a lawful strike. As a first step, the employees should give fourteen (14) days written notice of intention to resort to strike specifying grounds for the intended action. The notice has to be given to the party against whom the action is to be taken among other interested parties. The requirement to give such a long notice, it is submitted, is meant to deflect and deflate the potential strike as it is hoped that parties would resolve their issues before expiry of the notice period. Naturally tempers tend to die down due to lapse of time. In comparison, in South Africa the notice period is shorter as it is fixed at forty eighty (48) hours.

The second requirement is that the parties should attempt to conciliate the dispute before a Labour Officer/Designated Agent in terms of s 93 of the Labour Act. A certificate of no settlement should be issued to the parties in terms of s104(2)(b).

The third requirement, assuming the above requirements are met, is that the employees concerned should conduct a secret ballot whereby employees vote for or against engaging in a strike. The secret ballot should be superintended by a Labour Officer/Designated Agent who shall count and record the results of the secret ballot. The strike action can only proceed by agreement of the majority of employees voting by secret ballot. These should all be done within the 14 day period.

The aforementioned statutory requirements among other requirements are meant to curtail or minimise strike action, it being the common cause that strikes by their nature are disruptive and may cause heavy losses on employers.

In very limited circumstances, the law allows the employees to dispense with the need to follow the procedure stated above before resorting to strike. This applies to emergency situations listed in s104(4) as follows;

“(a) in order to avoid any occupational hazard which is reasonably feared to pose an immediate threat to the health or safety of the persons concerned:

Provided that—

(i) the occupational hazard has not been deliberately caused by the persons resorting to

the collective job action;

(ii) the collective job action resorted to shall remain proportional in scope and locality to

the occupational hazard in question;

(iii) the collective job action shall diminish in proportion as such occupational hazard

diminishes;

(b) in defence of an immediate threat to the existence of a workers committee or a registered trade union.”

There are severe heavy sanctions against those who engage in unlawful strikes whilst those who engage in lawful strikes are protected and enjoy several protections and privileges. In terms of s 108(1-3) of the Labour Act employees who engage in a lawful collective job action enjoy immunity from dismissal or any delict arising from the strike action. It must be stated however that the protection granted is limited. An employer is not obliged to remunerate an employee for services that the employee does not render during a lawful strike except where the employee’s remuneration includes payment in kind by way of accommodation, the provision of food and other basic amenities of life. The employer is even at large to recover the monetary value of such remuneration in kind through court action. (s 108(4)).

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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The Registrar of Marriages usually requires a copy of the person’s national identity card and birth certificate. Where there is a divorce order a copy of the same should also be submitted in which case the Registrar will verify directly with the court that issued it. In the case of a person claiming not to have been married at all, the Registrar will search the records from the time the person could legally marry to date. Where there is a divorce order it will be from the date of the divorce order to the present date.

If satisfied that there is no marriage record for the person in question the Registrar will issue a Non-Marriage Certificate which is valid for six months from the date of issue. It may need to be pointed out that a statutory fee must be paid before the Registrar does the search.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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The Act provides that an employer or any other person commits an unfair labour practice if, by act or omission, it;

• prevents, hinders or obstructs any employee in the exercise of any right conferred upon him in terms of Part II of the Act. The aforesaid rights in Part II include the right to membership to a trade union and workers committee, protection against forced labour, protection against discrimination etc.
• contravenes any provision of Part II or of section eighteen;
• refuses to negotiate in good faith with a workers committee or a trade union which has been duly formed and which is authorized in terms of this Act to represent any of his employees in relation to such negotiation;
• refuses to co-operate in good faith with an employment council on which the interests of any of his employees are represented;
• fails to comply with or to implement a collective bargaining agreement, a decision,finding,direction or determination which is binding upon it in terms of this Act;
• bargains collectively or otherwise deals with another trade union, where a registered trade union representing his employees exists;
• demands from any employee or prospective employee any sexual favour as a condition for recruitment for employment, the creation, classification or abolition of jobs or posts; or the improvement of the remuneration or other conditions of employment of the employee; or the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or the provision of facilities related to or connected with employment; or any other matter related to employment;
• engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.

The question which arises is who constitutes the ‘employer’ given that employers can be juristic persons who for example cannot be said to demand sexual favours as a condition for employment. The Act defines the employer as any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes the manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed;

These means that any acts or omissions by the any representative of the employer as defined above may be attributable to the employer which entitles an employee to seek redress against the employer in a court of law or any competent tribunal constituted in terms of the Labour Act or its subsidiary legislation.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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1. Cases where the defendant having been served with the Summons does not defend the action at all within the given time.
2. Cases where the defendant does not defend the action but enters into a consent with the plaintiff.
3. Cases where the defendant initially defends the action and at any stage before trial enters into a consent with the plaintiff.

It is the first category of cases which sometimes present difficulties in light of Order 35 Rule 269A of the High Court Rules, 1971. The Rule provides as follows;

“269A. Summons commencing action

The summons commencing an action mentioned in this Order may, at the option of the plaintiff, be issued in Form No. 30A, to which a copy of the plaintiff’s declaration shall be annexed, in which case the provisions of rule 272 shall not apply to such an action.”

The provisions of Rule 272 are to the effect that where the defendant, having been served with the summons, has failed to enter appearance to defend he/she shall be given a notice in Form No. 30 calling upon him/her to enter appearance and to plead within twelve days of the date of delivery of the notice and informing him/her that in default thereof judgment will be prayed against him/her. The Rule further provides that the plaintiff may thereafter set down the matter and effect personal service of the notice of set down on the defendant.

It would appear from the provisions of Rule 269A that where one uses the summons in Form No.30A there is no need to follow the provisions of Rule 272 and the plaintiff can obtain default judgment without serving the notice in Form No. 30. This is the interpretation given by the court in the case of Mathe v Mathe HB17/12. The court however held that personal service of the notice of set down remains a requirement.

The court in Tarumbwa v Tarumbwa HH19/2007 took a view which we humbly subscribe to. It held as follows;

“Further, it appears anomalous that the same court would be required under Rule 272 to ensure that a defendant in a divorce action instituted ordinarily, as opposed to a defendant served with Form 30A summons, is given every opportunity to defend the action, including being given an opportunity to appear in court on the set down date and to defend the divorce action at that late hour yet not afford the same rights and protection to defendants served with Form 30A summons when such summons have no features safeguarding the protection afforded by Rule 272 as used to be the case.

The plaintiff can obtain a default judgment without the defendant being given an opportunity to purge his failure to enter appearance to defend, to plead or to exercise the other options provided by rule 272(1)(a).  This would not have been the intention of the legislature considering that we are dealing with matters which have the effect of changing the status of the parties”.

The court in the Tarumbwa case ordered that Rule 272 be complied with in spite of the plaintiff having proceeded in terms of Form No. 30A. Even in judgments where it was held that there is no requirement for a notice to plead where one uses Form 30A, emphasis is still put on the fact that the notice of set down should be served personally on the defendant. What is the purpose of personal service of the notice of set down other than to give the defendant the opportunity to defend the action even at the 11^th hour? The Judge President recently gave a guide to unopposed divorce matters on 30 October 2020 and the guide gives support to the position taken in the Tarumbwa case.

In categories 2 and 3 the parties should enter into a consent paper detailing their agreement on such issues as custody, access, and property distribution. The defendant should further sign an affidavit of waiver. In all the three categories the plaintiff should depose to an affidavit setting out the evidence on which he/she relies in support of the order being sought.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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It is settled law that not all procedural irregularities vitiate proceedings, for them to do so the party raising it has to establish some prejudice suffered as a result of the irregularities. See Tichawana Nyahuma v Barclays Bank (Pvt) Ltd SC 67/05. Further the courts have emphasized that it is undesirable that labour relations matters be decided on procedural irregularities but at the same time the procedural irregularities should be put right. See Dalny Mine v Banda 1999(1) ZLR 220 SC; Nyoni v Secretary for Public Service Labour and Social Welfare &Anor 1997 (2) ZLR 516 and Posts and Telecommunications Corporation v Zvenyika Chizema SC 108/04. What this means is that the courts are very slow to set aside a dismissal of an employee guilty of an act of misconduct only on the basis that an incorrect procedure has been adopted. Put differently a person who is guilty should not be allowed to remain in employment on account of a perceived procedural imperfection but rather on the basis their innocence. The message is very clear, instead of the charged employee concentrating on poking holes on the manner in which he has been disciplined, the employee should expend more energy on proving that they are innocent of the charges. In Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Anor SC 89/04, the Supreme Court on a similar issue remarked as follows;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent”

As a general rule, the law recognize the employer’s right to correct a wrongly adopted procedure in dismissing an employee by instituting fresh proceedings without falling foul of the functus officio principle. In Madawo v Interfresh Ltd 2000(1) ZLR 660 9 (HC) Chinhengo J (as he then was) held;

“If an employer recognizes that it has adopted an incorrect or inappropriate procedure in effecting a dismissal there is nothing to prevent him from adopting the correct procedure to effect the dismissal”

Suffice to mention that the  employer’s right to get a second bite of the cherry is not cast in stone and can be taken away in exceptional circumstances to the general rule above. More recently in Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Chiedza Mugavha SC 62/19 Patel JA (as he then was) in a majority judgment which carried the day held as follows;

“Having regard to the authorities cited above, the basic principle to be applied where an employee is unprocedurally disciplined or dismissed is that the employer is at large to rescind the irregular proceedings or dismissal and thereafter institute fresh disciplinary proceedings on a proper basis. Nevertheless, it seems to me that it may be necessary and proper to depart from this general principle in very limited and exceptional circumstances. The justification for doing so springs from the need “to advance social justice and democracy in the workplace” in order, inter alia to secure “the just, effective and expeditious resolution of disputes and unfair labour practices” as enjoined by s 2A of the Labour Act. The particular circumstances that would warrant such departure is the situation where the employer proceeds in a manner that evinces bad faith…

In the instant case, I take the view that the appellant acted disingenuously and clearly mala fide in the following respects. Firstly, the appellant only reversed the irregular dismissal of the respondent after the matter was referred to a labour officer and on the very day that it received the labour officer’s notification to attend the conciliation hearing two weeks later. Secondly and again quite insidiously, the appellant almost immediately thereafter instituted fresh proceedings and hurriedly concluded them, fully aware of the fact that the conciliation hearing before the labour officer was scheduled to take place only three days later.”

This means that an employer should endeavour to act in good faith when it comes to instituting disciplinary proceedings against employees even where the employer perceive that the employee’s guilty is patently clear as broad daylight. The employer should resist the urge to achieve a dismissal at all costs which may result in the commission of grave procedural irregularities and which ultimately leads to the dismissal being set aside and may in exceptional circumstances result in the legal right to reconvene properly constituted disciplinary proceedings being fettered away.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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Section 7(1) of the Act, which deals with the privileges and immunities of specified international organisations, reads as follows, in the relevant part:

“The President may, by notice in the Gazette, confer upon any international or regional organization or agency specified in such notice all or any of the privileges and immunities set out in Part I of the Third Schedule.”

The privileges and immunities set out in the said Part I of the Third Schedule include immunity from suit and legal process. As a first step once an organization or agency is specified in the notice by the President, prima facie it enjoys immunity but however the issue does not end there. The Supreme Court in the case of International Committee of the Red Cross (ICRC) v Sibanda and Anor SC 54/17 held that the mere specification of an organization in the notice does not shed any light on whether or not the immunity covers all suits and legal processes. It held further that in order to answer that question, it is necessary to examine the nature and extent of the immunity accorded a foreign sovereign in terms of international law.

On the international law arena, the issue concerning the immunity from suit and legal process accorded a foreign sovereign has been the subject of judicial pronouncements for many years. Thus, in Rahimtoola v H.E.H. The Nizam of Hyderabad & Ors [1957] 3 All ER 441 (HL) LORD DENNING said the following at 461 E-G:

“It is more in keeping with the dignity of a foreign sovereign to submit himself to the rule of law than to claim to be above it; and his independence is better ensured by accepting the decisions of courts of acknowledged impartiality than by arbitrarily rejecting their jurisdiction. In all civilised countries there has been a progressive tendency towards making the sovereign liable to be sued in his own courts notably in England by the Crown Proceedings Act, 1947. Foreign sovereigns should not be in any different position. There is no reason why we should grant to the departments or agencies of foreign governments an immunity which we do not grant our own, provided always that the matter in dispute arises within the jurisdiction of our courts and is properly cognizable by them.”

The above pronouncements by both LORD DENNING and many like judgments   received the approval of the Supreme Court in Barker McCormac (Pvt) Ltd v Government of Kenya 1983 (2) ZLR 72 (S) at 79 G-H, 1983 (4) SA 817 (ZSC) at 821 F-G, where GEORGES  JA (as he then was) said:

“I am completely satisfied therefore that the doctrine of sovereign immunity generally applied in international law is that of restrictive immunity. There are no decisions of courts of this country and no legislation inconsistent with that doctrine and it should be incorporated as part of our law.”

It is, therefore, clear that the doctrine of sovereign immunity applicable in this country is that of restrictive immunity as opposed to absolute immunity. In other words, a foreign sovereign would enjoy immunity from suit and legal process where the relevant act which forms the basis of the claim is an act jure imperii, i.e. a sovereign or public act. On the other hand, it would not enjoy such immunity if the act which forms the basis of the claim is an act jure gestionis, i.e. an act of a private law character such as a private citizen might have entered into.

The position in South Africa is the same. It was stated by CORBETT CJ in The Shipping Corporation of India Ltd v Evdomon Corporation & Anor 1994 (1) SA 550 (A) at 565 A-B as follows:

“The legal position in this country regarding the doctrine of sovereign immunity was carefully and comprehensively surveyed by the Full Bench of the Transvaal Provincial Division in the case of Inter-Science Research and Development Services (Pty) Ltd v Republica Popular de Mocambique (1980 (2) SA 111 supra). As this survey shows, South African Courts initially applied the doctrine of absolute immunity, but in the Inter-Science case the Court decided to follow the world-wide trend and to apply the restrictive doctrine.”

In line with the restrictive approach to immunity as opposed to absolute immunity, in ICRC v Sibanda (supra), the Supreme Court of Zimbabwe held that an international organisation, such as the ICRC, enjoys immunity from suit and legal process subject to the provisions of international law and the doctrine of restrictive immunity applied to it. It held further that it could hardly have been the intention of the Legislature to grant absolute immunity from suit and legal process to such an organisation when a foreign sovereign did not enjoy such immunity. Consequently it held that ICRC did not enjoy immunity from being sued out of an act of a contract of employment which, clearly, is an act of a private law character such as a private citizen might have entered into.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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