GARWE
JA:
This
is an appeal against the decision of the Labour Court setting aside
the proceedings of a disciplinary committee constituted by the
appellant and remitting the matter for a rehearing before a different
panel.
The
background leading to the institution of disciplinary proceedings
against the respondent is common cause.
The
respondent was employed by the appellant as a driver. At the time the
incident giving rise to the disciplinary proceedings took place, he
was driving a truck belonging to the appellant carrying fertilizer
destined for Zambia. There were also a number of other trucks
belonging to the appellant carrying fertilizer to Zambia. At Chirundu
Border post there was a delay in clearing the truck as one bill of
entry was missing. The respondent then telephoned a Chief
Superintendent Mandipaka of the Zimbabwe Republic Police and made a
report to the effect that the appellant's clearing agents were
smuggling fertilizer out of Zimbabwe. As a result of that report some
sixteen trucks, some belonging to the appellant, were delayed at the
border post whilst the police investigated the report made by the
respondent.
Upon
full investigation, however, the missing bill of entry was found and
it was established that there was no intention on the part of the
respondent or its agent to smuggle the fertilizer out of the country.
The
appellant's clearing agent thereafter wrote a letter of protest to
the appellant highlighting the inconvenience caused by the report and
the expenses which the company had been forced to incur to have the
matter resolved.
Against
that background the appellant instituted disciplinary proceedings
against the respondent on a number of allegations of misconduct.
The
disciplinary committee found the respondent guilty of misconduct and
determined that his employment be terminated with effect from 14
December 2005. The respondent appealed to the appellant's Managing
Director who by letter dated 23 December 2005 upheld the decision of
the disciplinary committee. On 30 December 2005 the respondent filed
a notice of appeal with the Labour Court, Harare, seeking a review of
the proceedings. On 3 January 2006, however, the respondent and the
appellant executed a document that read as follows:
“I,
NYAMWANZA G S, in my capacity as Driver being duly authorized hereto,
hereby confirm that I have on this 03/01/06 day of Jan 2006 accepted
from WHELSON TRANSPORT the sum of $15,168,014,179.00 in full and
final settlement of my/our claim/entitlement arising out of Terminal
Benefits and I confirm that my/our acceptance of the aforesaid amount
determines finally my/our claim and that I/we have no
future/retrospective claims against WHELSON TRANSPORT of any nature
whatsoever, including interest costs, collection commission arising
out of the subject matter aforesaid, or otherwise.
I
therefore do hereby sign as acknowledgement and in agreement with the
above without alterations or cancellations.”
The
document was signed by the respondent.
Notwithstanding
the above document, the respondent proceeded with his appeal before
the Labour Court. He sought a review of the proceedings before the
disciplinary committee on three grounds. These were;
(i)
firstly that his senior, a Mr Ndoro, played the dual role of
chairperson of the disciplinary committee and witness during the
disciplinary hearing;
(ii)
secondly, that no hearing actually took place; and
(iii)
thirdly, that he was not given the opportunity to be heard.
In
its submission before the Labour Court, the appellant raised two
issues. These were;
(i)
firstly, that having executed the document dated 3 January 2006, the
respondent waived any rights he may have had to challenge the
decision to dismiss him whether by way of appeal or review.
(ii)
Secondly, that the respondent had not established good legal ground
for setting aside the dismissal.
The
court a quo did not consider the issue of waiver raised. It only
dealt with the question of procedural irregularity.
In
determining that there had been a procedural irregularity and that
the matter be remitted for a hearing, the Labour Court remarked:
“In
this case there was a serious procedural irregularity in that the
Chairman of the Committee was the witness. He led evidence from the
bench. Obviously there was a real risk of bias in the findings by the
Committee. However, from the facts of the matter which are follows:
Appellant
was employed as a driver with the respondent. On the day in question
appellant was driving one of the respondent's trucks ferrying
fertilizers to Zambia. When the appellant got to Chirundu Border Post
and had found that one bill of entry form was missing he phoned the
police and advised that respondent was smuggling fertilizers outside
the country. As a result of the report 16 trucks belonging to
respondent were delayed at the border whilst the police were carrying
on investigations.
Respondent
lost time and money. The investigations revealed the report was
false.
The
appellant was charged and dismissed from employment. Since the facts
are common cause to some extent I will not order reinstatement of the
appellant as he clearly has a case to answer.”
The
appellant attacks the decision of the Labour Court on four grounds.
These are:-
1.
That the Labour Court misdirected itself by not dealing with the
defence of waiver raised by the appellant.
2.
The Labour Court misdirected itself by coming to the conclusion that
the rules of natural justice were violated in that the chairman of
the disciplinary committee was both the chairman and the only
witness.
3.
The Labour Court misdirected itself by disposing of the matter on a
technicality when it was possible for it to dispose of the same on
the merits on the available evidence.
4.
The Labour Court misdirected itself by finding that there was a real
risk of bias in the findings of the disciplinary committee.
I
proceed to deal with the issue of waiver which is the first ground of
appeal raised by the appellant.
Reference
has already been made to the document signed by the respondent in
which he accepted payment of a sum of money in full and final
settlement of all his claims and in which he confirmed that his
acceptance of the money finally determined any claim he may have had
of any nature whatsoever.
In
its heads of argument before the court a quo, the appellant
specifically raised the issue of waiver.
It
was the appellant's contention that by entering into the above
agreement the respondent had waived his right to appeal or to take on
review the termination of his employment. The appellant had further
contended that the ordinary grammatical meaning of the agreement was
that the respondent had made an undertaking that the execution of the
agreement determined finally any claims of any nature whatsoever.
Despite
the fact that the issue had been raised, the court a quo did not
consider it at all and made no reference to the submission in its
judgment.
This,
in my view, was a misdirection.
I
would agree with the appellant that the failure to deal with a
defence raised by one of the parties amounts to a failure to hear and
determine the matter according to law.
The
question that necessarily arises at this stage is how the
misdirection should be corrected.
The
appellant has suggested that, since the facts are common cause and
all that needs to be done is to determine whether on the facts waiver
was established, this Court should itself determine the matter since
all that is involved is the construction of a contract.
Unfortunately
this branch of the law is not as clear as the appellant would seem to
suggest. The position is now settled that it is not permissible for
an Appellate Court to interfere with the discretionary power vested
in a lower court unless it is shown that the lower court had
committed such an irregularity or misdirection or exercised its
discretion so unreasonably or improperly as to vitiate its decision –
the Civil Practice of the Supreme Court of South Africa by Herbstein
& Van Winsen 4ed at p 918.
In
the case of Johnsen v AFC 1995 (1) ZLR 65 (S) 73B-C, GUBBAY CJ,
further clarified the position when he remarked as follows at p
78B-E:
“…
clearly
a distinction was drawn between the position of an Appellate Court
where, on the one hand, the court of first instance had not exercised
a judicial discretion at all, and, on the other, where it had
exercised the discretion, but wrongly.
In
the latter occurrence, the Appellate Court is not inhibited from
setting aside the original discretion. It must examine anew the
relevant facts and circumstances in order to exercise a discretion
itself by way of review, which may uphold, reverse or vary, the order
made by the court below.
In
re J (an infant) 1981 (2) SA 330 (Z) at 335D-E, I ventured to state
the principle, as I understood it, thus:
'If
the (primary) court erred in the exercise of its discretion, and as
all the facts relevant thereto are undisputed, this Court is now free
to exercise its own discretion… If the primary court acts upon a
wrong principle, if it allows extraneous or irrelevant matters to
guide or affect it, if it makes mistakes of fact, if it does not take
into account some material consideration, then its determination
should be reviewed and the Appellate Court may exercise its own
discretion in substitution, provided always it has the materials for
doing so.'”
In
the Johnsen v AFC case (supra) the appellant had sought an order
declaring inter alia that the AFC was not entitled to recover any
amount claimed to be due in respect of an escalation of expense,
however caused, of the equipment for the purchase of which the loans
were granted.
The
learned Judge who heard the application was of the view that this was
not a proper case for the grant of a declaratory order because
firstly what was sought was a legal opinion from the Court, secondly
that such relief if granted would not bring litigation between the
parties to finality and thirdly that there was an alternative remedy
by way of an interdict.
This
Court rejected that finding and came to the conclusion that the
omission of the court a quo to have regard to the terms of the
agreement of loan as a factor to be weighed in the exercise of its
judicial discretion constituted a misdirection. This Court remarked
at p 76G-H:
“In
my view, the failure by the court a quo to construe the agreement of
loan caused it to overlook that a declarator, though not necessarily
ending all litigation over the issue of liability between these
parties, nonetheless would have achieved finality on the
applicability of the summary execution procedures. …”
This
Court then decided to exercise its judicial discretion since the same
materials that were before the court a quo were also before it.
The
position was also aptly summarized by STEGMANN J in Tjospomie
Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd & Anor 1989
(4) SA 31 at 40A-J when he stated:
“1.
There is no rule of law to the effect that in every appeal against
the exercise of any discretionary power vested in court of first
instance the Court of appeal has no jurisdiction to interfere with
the decision appealed against unless such decision is shown to have
been unjudicial in one of the respects mentioned in Ex parte
Neethling and Others 1951 (4) SA 331 (A) at 335D-E.
2.
In an appeal against the exercise of a discretionary power by a court
of first instance, the first task of the Court of Appeal is to
examine the nature of the discretionary power, and to decide whether
it belongs to the category of discretionary powers contemplated by
the decision in Ex parte Neethling and Others.
3.
If the power is found to belong to such category, the Court of Appeal
has no jurisdiction to interfere with the exercise of the power
decided on by the court of first instance unless such decision is
shown to have been unjudicial in one of the respects mentioned in Ex
parte Neethling and Others, ie that such decision was capricious,
that it was based on a wrong principle, that it was not reached by
unbiased judgment, or that it was not based on substantial reasons.
4.
If the discretionary power is not found to belong to such category,
the Court of Appeal must decide to what category it does belong.
One
possibility is that it may be found to belong to the same category as
the discretionary power in Mahomed v Kazi's Agencies (Pty) Ltd and
Others 1949 (1) SA 1162 (N).
5.
If the power is found to belong to the last-mentioned category, the
function of the Court of Appeal is to hear all such arguments as may
be addressed on the basis of the record before it, and to give due
consideration to the decision of the court of first instance.
6.
In some cases it may be possible to conclude that the exercise of the
discretionary power by the court below was 'wrong' in some sense
other than the sense of 'un-judicial' contemplated by Ex parte
Neethling and Others.
However,
discretionary powers being what they are, there is usually no
objective criterion according to which the exercise of such power can
be judged to be 'right' or 'wrong'. The criteria according to
which it may be judged to be 'judicial' or 'unjudicial' are
dealt with in Ex parte Neethling and Others.
However,
there are always criteria according to which the exercise of a
discretionary power may be judged to be 'appropriate' or
'inappropriate'. Such criteria depend upon the circumstances of
the particular case. In the very nature of things, therefore, when
the subject matter of an appeal is the exercise of a discretionary
power of the kind referred to in para 5 above, the Court of Appeal is
not bound to uphold the decision of the court below unless satisfied
that such decision was 'wrong'.
7.
In an appeal against the exercise of such a discretionary power, the
function of the Court of Appeal is to consider whether, in the light
of all relevant factors, the exercise of the power by the court of
first instance was appropriate to the circumstances of the particular
case. If it was, the appeal must fail. If it was not, the court of
appeal must exercise the discretion anew, and must substitute its own
discretion for the discretion of the court below.”
I
am satisfied that the authorities referred to above correctly reflect
the law on this aspect.
There
was a failure by the court a quo to determine an issue that had been
properly raised by the appellant. The Court completely ignored the
issue of waiver raised and proceeded to determine the matter on the
basis of procedural impropriety. There was a failure by the court a
quo to appreciate that the question of waiver could finally determine
the issues between the parties, depending on the interpretation that
would be given to the agreement reached between the two sides. The
contents of the agreement are not in dispute.
In
these circumstances, I am satisfied that no purpose would be served
by remitting this matter to the court a quo for it to place an
interpretation on the contents of the agreement entered into between
the two parties. Since the contents of the agreement are common
cause, the only issue that arises is whether the facts establish
waiver.
It
has never been suggested that the document was the result of duress,
mistake or undue influence.
I
hold the view therefore that this Court can properly determine the
issue without the need to remit the matter to the court a quo.
The
issue that arises as a result of the conclusion I have reached above
is whether the respondent waived any rights he may have had to take
this matter either on appeal or review.
That
question necessarily raises the question: What is waiver?
“When
one of the parties, by his words, actions or inaction, has evinced an
intention not to enforce one or more or all of his rights under the
contract we select whichever word seems most appropriate from a list
which includes abandonment, acquiescence, release, renunciation,
surrender and waiver. Of these words by far the most commonly used is
waiver, which is regarded in many of the cases as interchangeable
with any of the other words…” – See RH Christie, The Law of
Contract in South Africa, 3ed at p 495-6.
The
law is also settled that there is a presumption against waiver and
that it must be clearly proved that the person who is alleged to have
waived his rights knew what those rights were.
The
respondent in this case was fully aware of the dispute between him
and the appellant. He had filed a notice of appeal with the Labour
Court seeking the review of the disciplinary proceedings. About four
days after doing so he then signed the document, part of the subject
of this appeal. In that document he acknowledges receipt of a sum of
money in full and final settlement of any claims he may have had
against the appellant. In the document he further confirms that his
acceptance of the amount determines finally his claim and that he has
no future or retrospective claims against the appellant of any nature
whatsoever.
Clearly
the respondent accepted payment of a sum of money in full and final
settlement of any claims he may have had against the appellant. That
meant that as at that date he had waived any right of action he may
have had to challenge his dismissal.
Having
entered into this agreement he no longer had any rights to pursue.
His decision to proceed with the appeal thereafter can only be
described as dishonest.
I
am satisfied in all the circumstances that the respondent waived any
rights he may have had against the appellant who was his employer.
The appellant's submission in this regard must therefore succeed.
In
the light of the above conclusion, it becomes unnecessary to consider
and determine the other grounds of appeal raised. The appeal must
therefore succeed.
It
is accordingly ordered as follows:
1.
The appeal is allowed with costs.
2.
The judgment of the Labour Court is set aside and in its place the
following is substituted:
“The
appeal is dismissed with costs.”
SANDURA
JA: I agree
ZIYAMBI
JA: I agree
Wintertons,
appellant's legal practitioners
