TAKUVA J: This is an apposed
court application. The facts which are wholly common cause are as
follows:
The applicant was in respondent's employ for the past thirty-two and half
years. On 24 October 2012 she resigned on medical grounds. The
resignation was accepted by respondent on 29 October 2012. In a letter
authored by respondent's Human Resources Manager dated 25 March 2013 applicant
was advised by respondent that the total net of her terminal benefits amounts
to US$45 147,03. Respondent paid the applicant US$10 000,00 leaving a
balance of US$35 147,03. Applicant also claimed US$2 698,00 being her
October and November 2012 arrear salaries. Respondent failed to pay the
balance outstanding prompting applicant's lawyers to send a letter of demand to
the respondent on 3 April 2013. Respondent ignored that letter
leading to the current court application for debt recovery.
Respondent filed an appearance to defend
and subsequently a special plea the nub of which is that this court has no
jurisdiction to determine this matter in that issues relating to non-payment of
terminal benefits and arrear salaries are specifically within the purview of
the Labour Court as these matters are provided for in the Labour Act [Cap
28:01]. Reliance was placed on sec (s) 92 of the Constitution of
Zimbabwe and 89 of the Labour Act which was quoted in extensio.
Respondent also relied on the following cases:
(a) ZIMTRADE v Makaya
2005 (1) ZAR 427 (H).
(b) Tuso v City
of Harare HH-01-04
(c) Zhakata v Mandoza
N.O. and N. M. Bank Ltd HH-22-05; and
(d) McFoyv United
Africa Co. Ltd [1961] 3 ALL ER 1169 (PC) @ 1172
Applicant filed her heads of argument
wherein she abandoned her claim with respect to arrear salaries but maintained
her claim in respect of outstanding terminal benefits. The gist of
applicant's argument is that this court has inherent jurisdiction to deal with
this matter since the Labour Act does not specifically preclude this court from
determining a claim for non-payment of terminal benefits properly quantified
and acknowledged by the employer. Further, it was submitted that in the
present matter there is no employer/employee relationship or dispute that is
provided in terms of the Labour Act as the cause of action is clearly premised
on a document acknowledged by the respondent reflecting the quantified amount
owed to the applicant which document amounts to an acknowledgement of debt. By
signing the document acknowledging the terminal benefits, the respondent
signified its intention and willingness to be bound by the terms of the same in
line with the caveat subscriptor rule.
Applicant relied on the following cases:
(i)
DHL International Ltdv Madzikanda 2010 (1) ZLR Z 01 @ 204B-D
(ii)
Moyov Gwindingwi NO & Anor HB-168-11
(iii)
Samudzimu v Dairiboard Holdings Ltd HH-204-10
(iv)
Lynne Ashley v John Goodwin t/a Cambridge Creche & Nursery
School HH-301-11
(v)
Martin Sibanda & Anorv Bearson Chinemhute NO & Anor
HH-131-04
In my view, the issue of jurisdiction can
be resolved by examining the nature of the case applicant has presented before
the court. While I agree that the matter's ancestors had labour law
characteristics, this forebear died when the applicant resigned and a modern
animal in the form of an acknowledgement of debt emerged. The applicant
simply desires to recover a debt whose acknowledgment forms a separate cause of
action based purely on the law of contract. If it is accepted that this
court by virtue of its inherent jurisdiction can do anything except that which
is specifically prohibited by law whereas the Labour Court can only do those
things that are specifically permitted by law, the respondent's argument
becomes fallacious.
Another way of demonstrating that this court has jurisdiction is to ask the
question what dispute is there for the Labour Court to determine in casu?
The answer is there is none except respondent's intransigence in refusing to
pay the amount owed. Now, to the best of my knowledge, there is no
provision in the Labour Act that allows the applicant to approach the Labour
Court directly seeking a similar remedy she is seeking in this court. The
matter will have to go via a Labour Officer for conciliation, then to an arbitrator
if need be and finally to the Labour Court on appeal. Assuming that both
this court and the Labour Court have jurisdiction to determine this matter, why
should the applicant be required to go along the circuitous journey instead of
the more direct route she has chosen.
For these reasons, I find that his court
has jurisdiction to determine the matter. Consequently, the point in
limine is hereby dismissed with costs on a higher scale.
Messrs Kanyenze & Associates, plaintiff's legal practitioners
Matsikidze
& Mucheche, defendant's legal practitioners
