Simbi (Steelmakers) (Private) Limited v M. Shamu & Others

The appellant employed forty-three respondents on monthly fixed-term contracts that were continuously renewed over periods ranging up to six years. On 19 May 2010, the appellant terminated all forty-three contracts on notice without giving any reason other than that the contracts had expired. The respondents claimed they had become permanent employees in terms of section 12(3) of the Labour Act [Chapter 28:01]. The matter was referred to arbitration, where the arbitrator upheld the respondents' claims and ordered their reinstatement or payment of damages in lieu. The appellant appealed to the Labour Court, which dismissed the appeal. The Labour Court found that the repeated short-term contracts constituted casualisation of labour prohibited by the Act as interpreted in light of international labour standards and constitutional provisions. The appellant then appealed to the Supreme Court.

• Whether employees on repeatedly renewed fixed-term contracts become permanent employees under section 12(3) of the Labour Act
• Whether the repeated renewal of fixed-term contracts constitutes casualisation of labour prohibited by the Labour Act
• Whether international labour standards (specifically ILO Convention No. 158 and Recommendation No. 166) can be applied to interpret domestic legislation when Zimbabwe has not ratified those conventions
• Whether the proviso to section 12(3) of the Labour Act, which applies to casual workers, extends to fixed-term employees
• The proper approach to interpreting legislation in light of international law and constitutional provisions relating to workers' rights

The appeal was allowed with no order as to costs. The Labour Court judgment was set aside. The arbitrator's award dated 15 October 2010 was set aside in respect of his rulings on casualisation of labour and unfair dismissal. The termination of the respondents' contracts of employment was upheld.

The binding legal principles established are: (1) Section 12(3) of the Labour Act and its proviso apply only to casual workers, not to employees on fixed-term contracts. The two categories of employment are mutually exclusive with distinct legal characteristics. (2) The proviso converting casual workers to permanent employees after six weeks' engagement in four consecutive months does not extend to fixed-term employees. (3) The Labour Act does not prohibit successive fixed-term contracts provided employees receive the full rights and benefits applicable to fixed-term employment. (4) International conventions and treaties that have not been ratified by Zimbabwe do not bind the country and do not form part of domestic law unless approved by Parliament and incorporated through an Act of Parliament (section 327(2) of the Constitution). (5) Courts cannot rely on unratified international instruments to interpret domestic legislation in a manner that contradicts or overrides clear and unambiguous statutory language. (6) Labour courts cannot invoke equitable jurisdiction to import concepts (like casualisation of labour) into statutory provisions that do not support such interpretation, nor can they rewrite fundamental terms of voluntarily entered contracts.

The Court made several non-binding observations: (1) The Court acknowledged the socio-economic reality of unequal bargaining power between employers and employees, which often forces employees to accept employers' terms including contract duration, but stated this evil is best addressed by the legislature through clear legislation, not judicial intervention. (2) The Court noted the irony that the 2015 amendments to the Labour Act designed to address the implications of Nyamande & Donga v Zuva Petroleum SC 43/15 were 'hastily crafted' and did not even extend benefits to the appellants in that case since they were discharged before 17 July 2015. (3) The Court observed that casual workers generally receive higher remuneration rates to compensate for loss of minimum conditions and prescribed benefits. (4) The Court indicated that while unratified international conventions cannot be applied definitively, they may serve as persuasive guides in interpretation, though not to override clear statutory provisions. (5) In deciding not to award costs, the Court noted it had taken over five years for the matter to be resolved and that the respondents' position was not entirely indefensible given previous Labour Court decisions based on equity considerations.

This case is significant in South African and Zimbabwean labour law jurisprudence as it: (1) Definitively clarifies the distinction between casual workers and fixed-term employees under labour legislation, establishing that protections against casualisation applicable to casual workers do not automatically extend to fixed-term employees. (2) Establishes important principles regarding the application of international law in domestic courts, particularly that unratified international conventions cannot be used to override clear statutory provisions. (3) Confirms the constitutional framework under section 327 that international treaties must be approved by Parliament and incorporated into domestic law to be binding. (4) Limits the equitable jurisdiction of labour courts, holding they cannot rewrite clear statutory language or fundamental contract terms (like duration) in the name of advancing social justice. (5) Was decided shortly before major amendments to the Labour Act in 2015 and provides context for understanding the pre-amendment legal position. (6) Recognizes the unequal bargaining power in employment relationships but holds this is a matter for legislative, not judicial, intervention.