Munyaradzi Gwisai: Labour & Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism:
Zimbabwe Labour Centre & Institute of Commercial Law. 2006
Corpus Iuris 533 AD was a codification of Roman law. It became the basis of most
European legal systems and later extended through colonialism to the rest of the world.
The Netherlands was such a colony for over 400years. In 1652, the Netherlands
colonized The Cape and imposed Roman-Dutch law. When the British took over The
Cape in 1806, they retained the roman-Dutch law.
The common law views employment as an individual relationship. The collective
bargaining agreement is a special kind of SI in labour law. The Constitution as a source
of law acts directly by:
 Declaration of Rights e.g. freedom from slavery/forced labour, degrading
treatment; fair hearing and equal application of law; freedom of association and
assembly and protection from discrimination.
 A legal framework for public servants through the Public Service Commission
[PSC]
Other relevant legislation includes the Factories and Works Act [Chap 14:08], Hazardous
Substances and Articles Act [Chap28: 02] and the NSSA Act [Chap 17:04]. Section 17 of
the Labour Act [LA] allows the Minister to set up regulations. Otherwise, the LA is the
foremost legislation in labour law. It covers all employees and employers including
parastatals and local authorities. The only exceptions are employees covered by the
Constitution. However, Act 17/2002 was extended to cover public servants subject to
some restrictions.
In MSU Council v MSU Lecturers Association, 2005 employees of a state university are
not public servants. These employees therefore fall under the LA. The university enjoys a
distinct legal personality. The university’s argument that they could not pay salary and
wage increments because they had not received funds from the state was held to be
invalid.
The relationship of employer and employee is founded on the contract of employment
which has its origin in Roman law which construe it as one of 3 types of letting and
hiring locatio conductio operarum [letting & hiring of personal services] in exchange for
remuneration. The other two forms are letting and hiring of things or the letting and
hiring of another to do specific work. Gwisai defines this relationship as “a contract of
employment comes into existence when one person, the employee, enters into an
agreement with another, the employer to render personal services to and under the
control of the employer, in return for remuneration”. The agreement must conform to
the general formalities of a contract at common law. It chief characteristics are:
 There must be voluntary agreement between the parties. Duress, forced labour or
slavery are excluded.
 The employee is always a natural person.
 The employee renders personal services and has a duty of subordination and good
faith to the employer.
 The employee is paid a wage or remuneration.
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Munyaradzi Gwisai: Labour & Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism:
Zimbabwe Labour Centre & Institute of Commercial Law. 2006
The contract of employment is distinguished from other types of contract on the basis of
the Supervision and Control Test: In Blismas v Dardagan, 1950, SR it was held that
“It is the essence of a contract of master and servant that the servant should submit
to the direction of his employer and obey his employer’s instructions not only in the
things he has to do, but as to the time and manner in which he has to do them.”
Formation of the Contract: Formalities. As any contract, the contract of employment
must display lawfulness, possibility of performance, certainty, legal capacity etc. the LA
allows a minimum age 15 for employment and 13 for apprenticeships subject to parental
or guardian authority. Insolvents may not be employed in the business of a general dealer
or manufacturer unless authorized by the trustee. The contracts and its objects must be
lawful and not contrary to statutes, public policy or morality.
In State v Collet, 1978 a worker had authorized the employer to whip him for
misconduct. The agreement was held to be unlawful. Similarly in Mutandiro v PTC. 2000
there was an agreement to ignore the labour laws of the country. It was held that the
agreement was invalid.
In general the content of the contract is as agreed between the parties. At common law
there is no need to reduce the contract to writing. However, Sect 12[2] of LA requires the
employer to reduce the agreement into a written statement which covers specified
particulars – otherwise the employee’s assertions of the contents of the contract would
prevail. But the contract itself must include:
 Express terms on which the parties agreed expressly especially on the essentials
of the contract e.g. salary/wage.
 Tacit terms may be inferred from the conduct of the parties
 Implied terms - which the parties have not even put into the contract but are
incorporate by operation of the common law.
Various forms of the contract depend on the duration or cycle of work. Thus by duration
a contract may be permanent [i.e. indefinite] or temporary [fixed term]; probation or
casual. Work cycles indicate either full time or part time. For probation, the contract may
be terminated before the end of the probationary period.
Duties of the employer.
o At common law:
o To receive the employee into service and to provide work
o Remuneration must be paid.
o Provide safe working conditions in general and as required in statute.
o Good faith and respect for the employee’s dignity
o By the Constitution especially the Declaration of Rights:
o Refrain from forced labour.
o Refrain from inhuman/degrading treatment
o Right to be heard; principles of natural justice
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Munyaradzi Gwisai: Labour & Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism:
Zimbabwe Labour Centre & Institute of Commercial Law. 2006
o
o
o
o
o
Discrimination
Freedom of association, assembly, movement or expression.
Right to democracy in the workplace.
Right to fair labour standards or practice.
Maximum hours of work are covered in subsidiary legislation especially
through Collective Bargaining Agreements [CBA] except that:
 Sect 14C gives no less than 24 hours continuous hours of rest each
week either on the same day each week or on an agreed day.
 Leave of absence every public holiday.
 CBA provide maximum hours
 Maternity leave of 98 days on full pay after one year of service
subject to other provisos.
Duties of the employee.
 Provide service
 Serve diligently and competently
 Duty of subordination and refrain from misconduct. Such misconduct includes:
o Acts inconsistent with express/implied terms of the contract.
o Willful disobedience of a lawful order.
o Willful destruction of employer’s property
o Theft/fraud.
o Absence from work for 5 working days or more without leave or
reasonable cause.
o Gross incompetence or inefficiency in the performance of work
o Habitual/substantial neglect of duties
o Lack of skill which the employee expressly/impliedly held out to possess
o The duties above arose from common law
 Duty of good faith.
Other cases from of interest from Gwisai:
 Mada v Reformed Church in Zimbabwe, 2004. A Boarding master at a church
school was dismissed for entering into a polygamous marriage which was deemed
“contrary to our Christian principles and moral values… as he was in charge of
school children and … was expected to be exemplary”. The court held that this
was discriminatory. The boarding master was merely expected to keep order
among pupils. However discrimination for bona fide pursuit of the lawful objects
of the organization is permitted.
 Wazara v Belvedere Teachers College, 1977. Expulsion of pregnant students in
government colleges were held to be unlawful discrimination under Sect 23.
however it was not unconstitutional and so the rule did not apply to private
colleges [See Chaduka NO & Another v Mandizvidza, 2001]. However in a later
case the court held that this provision could be deemed invalid being contra bonos
mores.
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Munyaradzi Gwisai: Labour & Employment Law in Zimbabwe: Relations of Work under Neo-Colonial Capitalism:
Zimbabwe Labour Centre & Institute of Commercial Law. 2006

Muzondo v UZ, 1981. The employer was held liable to pay special damages
including lost income from potential published work to a lecturer whose contract
had been terminated prematurely.
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