MAKONI J: The applicant issued summons
claiming payment of the sum of US15 900-00, interest on the amount at the
prescribed rate and costs of suit on attorney-client scale. The respondent
entered an appearance to defend. The applicant then applied for summary judgment.
The basis for the application is that the applicant was an
employee of the respondent. Upon reaching retirement age the parties agreed on
the retirements benefits due to the applicant in the sum of US15 900-00. The
parties signed a letter to the effect that the respondent would pay the above
stated amount on or before 14 October 2011. The respondent did not pay and the
applicant then issued summons. It is the applicant's contention that its claim
is unanswerable and the respondent entered an appearance to defend solely for
purposes of buying time.
The application is opposed. The respondent raised a point
in limine that this court has no jurisdiction on the basis that the
claim arises from the termination of the applicant's employment contract with
the respondent. The matter falls within the realm of the labour law. On the
merits, the respondent contends that the letter on which the claim is based
states that the figure of USS15 900-00 excludes tax. The applicant is therefore
not entitled to the amount claimed.
The applicant then filed a replying affidavit in which he
persisted with the issue that this court has no jurisdiction to determine the
matter. He conceded that the amount claimed is subject to tax. He then produced
a tax-directive which he alleges he obtained from the respondent's employees.
The Employees Tax Deduction Directive directs that an amount of USS5 623-80 be
deducted from the gratuity due to the applicant. It leaves a balance of US$10
276-20.
The applicant further averred that he was entitled to a
further sum of US$1 325-72 from the respondent for deductions made from his
salary in respect of his pension but were not forwarded to the Pension Fund. He
then concluded by claiming a reduced amount in the sum of US$11 601-92. He
avers that he was entitled to adduce evidence which results in a reduction of
his claim by virtue Order 10 r 67 (a) of the High Court Rules.
I will deal with the point in limine first.
It is now settled in our law that this court has no jurisdiction to determine
labour disputes. See Tuso v City of Harare HH 1-04 and Mawere
v Agriculture Finance Corporation HH 46-06. The issue before me is
whether the dispute between the applicant and the respondent falls within the
definition of a labour dispute as envisaged under s 89 (6) of the Labour Act [Cap
28:01]. My view is that the dispute between the parties is not a
labour dispute. The employment relationship between the applicant to the
respondent no longer subsists. It terminated on 7 October 2011 by consent of
both parties. There is no dispute as to whether the relationship was lawfully
terminated or not.
The applicant is suing the respondent based on a document
signed by parties setting out the terms and conditions of the termination of
their relationship. Although it is not termed an acknowledgement of debt, its
akin to one. The respondent acknowledged that it owes the applicant the sum of
US$15 900-00 less tax.
I agree with the sentiments of CHEDA J in Mandinda
Ndlovu v Highlanders Football Club HB 95/11 when he stated:
“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, in 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.”
I will therefore dismiss the point in limine.
Before dealing with the merits of the matter I would like
to deal with the issue of the filing of the applicant's replying affidavit. It
appears that some legal practitioners might not be aware of the circumstances
under which a further affidavit maybe filed is summary judgment proceedings and
the procedure thereof. Time and again we are being confronted with answering
and replying affidavits in summary judgment proceedings.
The position on this issue was made clear by MUTAMBANENGWE
J in Lincoln Court (Pvt) Ltd v Axis
International (Pvt) Ltd Anor HH 54-94 when he
stated:
“At this point I feel I must point out the fact that the
amendment to the proviso to r 67 is not a licence for the plaintiff to dispense
with the provisions of the rule itself, which says 'No evidence may be
adduced by the plaintiff otherwise than by the affidavit of which a copy was
delivered with the notice'. The purpose of the amendment is not to enable
the plaintiff to reply to the respondent's affidavit otherwise summary judgment
proceedings will be allowed to develop into' motion proceedings to the fullest
sense.' See Beresford and Plan (Pvt) Ltd v Urquart
1975 (3) SA 619 (RAD) at 625.
Secondly the proviso says the court may permit the
plaintiff to supplement his affidavit with a further affidavit. Obviously the
permission has to be sought for such an affidavit to be put in. In my view,
therefore this can only be done with leave of court, and the plaintiff has to
apply for such leave and the defendant has a right to oppose such an application
on the basis that the proposed affidavit does not meet the requirements of the
proviso to the rule.”
I quoted in extenso what MUTAMBANENGWE J stated in
the Lincoln case supra, as those are the sentiments that I
would want to express in casu. When Mr Kufaruwenga stood up
to address me, I thought he would first address the issue of the filing of the
replying affidavit but he did not. During the course of his address he then
made reference to the replying affidavit. When I asked him whether the
affidavit was properly before the court, it became clear that he was not clear
on the procedure to be followed. At the end of the day, there was no
application for leave to file the replying affidavit. The replying affidavit is
therefore not properly before me and I will not have regard to it.
The applicant's claim as it is stated in the founding
affidavit is unanswerable. The respondent does not dispute owing the applicant
some money but states in its defence that the amount claimed by the applicant
includes tax which is due to Zimra. It is the respondent's obligation and
responsibility to seek a tax directive and deduct the tax from the amount
agreed between the parties. The respondent does not give an explanation as to
why it has not obtained an employer's tax deduction directive. I will therefore
make an order that the respondent pays to the applicant the amount due to him
less the tax.
The amount relating to the pension was not claimed in the
summons and cannot be claimed in summary judgment proceedings for the first
time. In any event it was mentioned, for the first time, in the replying
affidavit which I have ruled to be not properly before the court.
The applicant prayed for costs on a higher scale. If the
applicant's papers were in order I would have considered awarding costs on a
higher scale. In casu the applicant unnecessarily complicated the
issue by filing papers without following the procedure as provided for in the
rules. I will therefore award costs on the ordinary scale.
In the result, I will make the following order:
1. Summary judgment is hereby
entered in favour of the applicant against the respondent in the following
terms:
(a) The
respondent to pay the applicant the sum of US$15 900-00 less the tax that is
due to Zimra plus interest at the prescribed rate from 14 October 2011 to date
of full payment.
(b) The respondent is
to obtain the relevant tax deduction directive within seven days of being
served with this order.
(c) The
respondent to pay costs of suit.
Dzimba Jaravaza & Associaties, applicant's
legal practitioners
Tamuka Moyo Attorneys,
respondent's legal practitioners
