Elisha Tshuma & 3 Others v Zimbabwe Revenue Authority

The appellants were initially employed by the respondent (Zimbabwe Revenue Authority) as permanent co-ordinators on contracts without limit under Career Level 8. In 2007, following a restructuring exercise, their contracts were voluntarily terminated on 20 February 2007 and they received severance packages. They were then re-employed on 3-year fixed term contracts as investigations officers from 1 March 2007 to 28 February 2010. On 12 June 2007, the respondent's Commissioner General wrote to the appellants advising that they had reverted to their original status as permanent co-ordinators and were required to refund their severance packages. A general memorandum dated 26 June 2007 confirmed these changes. The appellants worked under these new terms. However, on 10 June 2009, the respondent issued memoranda purporting to withdraw the permanent employment status and reverting the appellants to their fixed term contracts. The appellants disputed this variation. The matter was referred to arbitration, where the arbitrator found in favour of the appellants. The respondent appealed to the Labour Court, which overturned the arbitrator's award.

• Whether the Labour Court created and determined its own issues contrary to the issues raised and agreed upon by the parties
• Whether the second variation of contracts without limit of time to fixed contracts was lawful
• Whether the parties had concluded second contracts of employment without limit of time
• Whether the Labour Court erred in applying the doctrine of novation

1. The appeal succeeds with costs. 2. The judgment of the court a quo is set aside. 3. The matter is remitted to the court a quo for a hearing de novo before different judges.

A court cannot raise and determine its own issues contrary to the issues raised and agreed upon by the parties. When parties agree on certain facts (such as the existence of contracts), those admissions are binding and the court cannot make contrary findings. What is admitted by parties need not be proved and is taken as established. A court that determines issues not raised by the parties or contrary to their agreed positions acts on a wrong principle of law and commits a fatal procedural error warranting the setting aside of its judgment.

The Court referenced the principle from Nzara v Kashumba SC 18/18 which 'chides judicial officers not to go on a frolic of their own when sitting in judgment over given issues.' The Court noted that while its ruling on the procedural issue was dispositive of the procedural matters, it did not dispose of the substantive issues because the Labour Court had not determined the substantive issue placed before it, necessitating the invocation of review powers under s 25 of the Supreme Court Act for the sake of substantive justice between the parties.

This case is significant in Zimbabwean (and by extension Southern African) labour law and civil procedure for establishing the principle that courts are bound by the issues agreed upon by parties and cannot create and determine their own issues. It reinforces the fundamental principle that what is admitted by parties need not be proved and cannot be subsequently disputed by the court. The case demonstrates the limits of judicial discretion and emphasizes that courts must confine themselves to adjudicating the issues placed before them by the parties. It also illustrates the Supreme Court's willingness to invoke its review powers to ensure substantive justice when lower courts have erred on procedural grounds that prevent proper determination of substantive issues.