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Initially, the freedom of contract by definition is a foundational principle of contract law that necessitates that parties of full age and competency are free to enter and agree upon anything they desire as long as it is within the bounds of the law: Printing and Numerical Registration Company v Sampson,[1] Rosemary Ngolima and 10 others vs. Zambia Consolidated Copper Mines,[2] and Colgate Palmolive v Abel Shemu.[3] While the Employment Code Act[4] by definition is a statute that stipulates the roles of the skills and labour advisory bodies and regulates the relationship between employers and employees in Zambia.[5]
Secondly, the freedom of contract is an English Common Law doctrine as established in Construction & Industrial Maintenance Services Limited v Fair Face Enterprises Limited And Others[6], thus, it is a persuasive doctrine in Zambian courts. The courts have discretion over the level of damages that can be awarded to the injured party, the ability to exclude or limit liability and the period of the agreement regardless of the notion of freedom of contract.[7] In Tiger chicks (T/A Progressive Poultry ltd) v Tembo Chrisford,[8] for instance, the court held that “freedom to contract is circumscribed to the extent that the conditions to be agreed upon should not be less favourable than minimum prescribed in the Orders made pursuant to the Act”. While the Employment Code Act[9] is a statute enacted by parliament in Zambia as a way of governmental regulations in the employment sector, it is binding law.
Thirdly, the freedom of contact is limited by statutes according to Tiger Chicks case,[10] Printing and Numerical Registration Company v Sampson,[11] and Rosemary Ngorima v Zambian Consolidated Copper Mines.[12] An example of a statute that limits freedom of contract is the Employment Code Act[13] in contracts of employment. While the Employment Code Act[14] limits itself to contracts of employment (Contracts of Services) and excludes contracts of employment of Defence Forces, Zambia Police Service, Zambia Correctional Service and Zambia Security Intelligence Service according to section 2 of the act.
Lastly, the freedom of contract is criticized for its use by the elite in the oppression of the weak this is elaborated in George Mitchell (Chester hall) Ltd v Finney Lock Seeds Ltd.[15] While the Employment Code Act is celebrated, as it shields vulnerable employees in contracts of employment as established in Albert Mupila v. Yu-Wei,[16] Tiger Chicks case,[17] and Gildah Ngoma And Other v World Visions Zambia.[18]
BIBLIOGRAPHY
[1] (1875)) LR19 EQ 462
[2] Appeal No. 97/2000
[3] Appeal No. 181/2005
[4] The Employment Code Act No.3 of 2019
[5] Employment & Labour Laws and Regulations 2023, https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/zambia
[6] 2018/HP/2138
[7] Employment & Labour Laws and Regulations 2023, https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/zambia
[8] Appeal No. 06/ 2020
[9] No.3 of 2019
[10] Appeal No. 06/ 2020
[11] (1875)) LR19 EQ 462
[12] Appeal No. 97/2000
[13] No.3 of 2019
[14] No.3 of 2019
[15] [1982] EWCA Civ 5
[16] COMP/IRC/LK 222 of 2021
[17] Appeal No. 06/ 2020
[18] Appeal No 159/2019