CHEDA J: This is an application for a summary
judgment.
The
historical background and genesis of this matter is that applicant [hereinafter
referred to as “Madinda”] is a
yesteryear international football icon, entered into an employment contract
with respondent, Highlanders Football Club [hereinafter referred to as [“the
club”]. The contract was signed on the 7th
October 2008. One of the terms and
conditions of the contract was that the club was to pay him US$5000-00 per
month and US$3000-00 for the 2009 season.
The club fell into financial difficulties and failed to pay him. The total amount due is US$18580-00 which
amount was acknowledged to by the club's representative on the 3rd
of August 2009.
Despite
demand, respond has failed to honour their part of the agreement resulting in
these proceedings.
At
the start of this hearing, respondent raised two points in limine
namely that this court has no jurisdiction to hear this application as it is a
labour dispute.
The
second point being that this was an illegal contract as the club and Madinda
contracted to pay and be paid in foreign currency respectively without
authority from the Exchange Control Authority.
Where,
points in limine have been raised the court has a discretion,
either to deal with the points in limine first before hearing the
merits or to allow submissions to be made on merits before making such
determination on the points raised in
limine. In the exercise of that
discretion, I, allowed arguments on merit to proceed.
With
regards to the issue of jurisdiction, I have had sight of the case of Tuso v City of Harare HH 1/04 which was
referred to me by Mr Z Ncube for
which I am grateful. I am of the, view,
that the present case is distinguishable as it deals with an acknowledgement of
debt, which is, itself, a liquid document and therefore does not fall within the
definition of a labour dispute as envisaged under section 89(6) of the Labour
Act [Chapter 28:01]. It is my respectful
view, that while it was the intention of the Legislature to oust the
jurisdiction of the courts from adjudicating on matters involving labour disputes, an acknowledgement of debt
even if it arises from a contract of Labour is not what the legislature
intended to mean. An acknowledgment of
debt is nothing but a liquid document which is covered by the rules of this
court, for which an application for a summary judgment can be applied for.
The
second point deals with illegality.
It
is their argument that the transaction which involved the agreement to pay
applicant in the United States dollars was illegal. Sections (4) and (10) of the Exchange Control
Statutory Instrument 109/96 make it clear that such transaction is illegal
unless authorised by the Exchange Control Authority. The parties contracted to deal in foreign currency
in an unlawful manner. In other words
they agreed to commit a crime. In the
circumstances they are both culpable.
The
general rule is that the court cannot enforce a contract whose object is to
commit an illegality. The element of
intention is crucial in this instance, if it is unilateral it is unenforceable
at the suit of the party who is proved to have the intent to break the law at
the time of the contract. If the intent
was mutual the contract is not enforceable at all. This principle has been with us under the
Roman Dutch and the English laws, see, Hindley
and Company Ltd v General Fibre Company Ltd
[1940] 2KB 517 and Hire purchasing
Furnishing company v Richens (1887) 20 QBD 387 CA.
For
that reason no court will lend its support to a man who bases his cause of
action upon an illegal or immoral act.
In
casu the parties knew that at the time, the country was going through
economic hardships and the Zimbabwean dollar was tumbling uncontrollably. From an economic point of view they felt that
it was only proper for them to transact in foreign currency which was in direct
contravention of the provisions of the Exchange Control Regulations.
By
acting in this manner, they were no doubt mutually committing an offence. It is for that reason that applicant cannot
be allowed to enforce an illegal contract.
I
must add here that the parties have a long established relationship which is
held, in high esteem by the nation and as such it was not necessary for this
matter to have been allowed to degenerate to this level. It is clear that both parties have immensely
benefitted from each other during their blissful days and as such there may be
a need for them to re-visit the negotiating table and iron out their differences. This, in my view, will help resolve this
matter once and for all. This is only,
but my opinion.
What
cannot escape this court is that, this was an illegal contract and the law as
stated above is also clearly laid down in Heyns
v Heyns 1978 RLR 324(A); York estates Ltd v Wareham 1950(1) SA 125 (SR)
where Lewis ACJ , said:
“As a general rule, a contract
or agreement which is expressly prohibited by statute is illegal, null and void
even when, as here, no declaration of nullity has been added by the statute.”
The
position is that the contract becomes a nullity and not even the principle of
equity can rescue it.
The
parties have made submissions on merits, but, in view of the points raised in
limine, it is not necessary to proceed to determine the issue any
further.
Order
The
point raised is upheld and the application is dismissed accordingly.
Cheda and partners, applicant's legal
practitioners
Coghlan
and Welsh, respondent's legal practitioners
