The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from ...
The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.
On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from 11 November 2014, to be served from home i.e. the applicant was not to report for work but would nonetheless be paid his salary.
In the aforesaid notice to terminate the applicant's employment contract the respondent stated:
“…, the corporate hereby undertakes to pay the notice period and all outstanding payments due to you on a monthly basis spreading over a period of four months through the corporate's payroll until all such is extinguished in full. These payments shall be made subject to such statutory deductions as are applicable. A statement of account denoting how much you are entitled to shall be availed to you by the 30th November 2014. Kindly approach the human resources department for your termination clearances and statement of account, and affix your signature to the tear off below to signal your receipt of this letter…,.”
The letter of notice was delivered upon the applicant who refused to sign the tear off slip.
Nothing turns upon the applicant's refusal to sign the tear off slip because the validity of the termination being a unilateral act by the respondent (employer) would not require acceptance by the applicant (employee) through signing the letter. It is sufficient for its validity that the letter was conveyed upon the applicant.
By letter dated 29 November 2014, the respondent wrote to the applicant setting out the amounts which it acknowledged to be owing by it to the applicant. The letter referred to is attached as annexure 'C' to the applicant's founding affidavit and reads in material part as follows:
Re: Statement of account for Aswell Nyanzara EC No. BD1013
“We refer to the above matter.
Please be advised that Mbada Diamonds acknowledges owing you a total amount of USD$9,695=02 which was calculated starting from 1 February 2010 being the date of engagement. The detailed breakdown is as follows:
Item Value
1. Gratuity payable $1,331-95
2. 90 days of CILL payable $3,073-85
3. 0.00 months historic overtime $-
4. April & May 2014 overtime @ 1.5 $-
5. April & May 2014 overtime @ 2.0 $ 102-46
6. Back pay for June & July 2014 $ 576-00
7. Salary for September, October & November $2,305-38
8. 3 months using current work arrangement $2,305-38
Grand Total $9,695-02
Please note that all the above amounts are gross figures, and, as such, are subject to applicable statutory deductions. Mbada Diamonds will deduct any loans or amounts advanced to you from the net amount…,.
A Zindi (Mr)
The Human Resources Manager
For and on behalf of Mbada Diamonds”
As with the letter of termination of employment on notice, which the applicant refused to sign, he also did not sign the letter setting out the statement of account.
The applicant indicates, in his answering affidavit, that, he did not sign his own copy of Annexure C but signed the one which the respondent retained. He attributes his failure to sign the letter to the fact that he is a layman and thought it unnecessary to sign the copy which he retained and has attached to his application.
Although the respondent appears to take issue with the failure by the applicant to sign the statement of account in acknowledgment, it is, in my view, a matter or omission of no great moment because the authenticity of annexure 'C' is common cause between the parties.
I shall advert to analysing its contents later when I consider the jurisdictional issues raised by the respondent.
On 5 May 2015, the applicant filed the present court application whose heading reads 'COURT APPLICATION FOR PAYMENT OF MONEY'. The application is supported by the applicant's brief affidavit consisting of seven (7) paragraphs, the material ones which read as follows:
“4. On 11 November 2014, the respondent terminated my contract of employment on notice. A copy of letter of termination of contract of employment is attached hereto marked “B”.
5. On 29 November 2014, the respondent marked out my terminal benefits which amounted to $9,695=02. A copy of the statement of account from the Human Resources Manager is attached hereto marked 'C'.
6.1. Apart from the $9,695=02, the respondent owed me the following amounts;
(a) Night Allowances - $1,941=10 Annexure 'D'.
(b) Unrefunded portion of the pension fund - $799=20 Annexure “E”.
6.2. Therefore, the total amount of money which I am claiming from the respondent is $12,435=32 arrived at as follows;
7. I have not been paid a single cent from these moneys that are due to me despite demand on several occasions. The respondent has simply neglected, failed and/or refused to pay. I am applying for an order granting me the aforesaid sum for purposes of enforcement …,.
WHEREFORE, I pay for an order in terms of the Draft.
Thus sworn to at Harare this 5th day of May, 2015
Signed: Aswell Nyanzara”
Annexures 'D' and 'E' referred to in paragraph 6.1(a) and 6.1.(b) of the applicant's founding affidavit are, respectively, a letter whose date is not clear but is headed TERMINAL BENEFITS FOR ASWELL NYANZARA…,. NIGHT ALLOWANCE.
Annexure D is addressed to the respondent and is purportedly written by one E Munongerwa representing NUMQUI SWZ. There is a date stamp embossed National Union of Mines Quarrying Iron and Steel Workers of Zimbabwe. It appears that NUMQUISWZ is the abbreviation for the union. The letter purports to calculate the applicant's night allowance at $1,941 as the amount due to the applicant by the respondent.
Annexure E is a letter whose origins are not clear nor stated except that it is dated 4 March 2015, is addressed to the respondent's Principal Officer, a Mr Kennedy Bingwa, and is signed by or on behalf of Alackias Gavure – Administration Manager.
The letter is headed Mbada Diamonds Pension Fund: Retirement – Nyanzara Aswell (BD1013).
The author of Annexure E states in the letter, that, the sum of $1,834=58 was transferred into the “members” NMB Bank account number 290073502 on 2 March 2015. The payment represents the full commutation due to the member (comprising member and employer contributions together with interest thereon). The writer further states, in the letter, that, the 'balance retirement capital could not secure the statutory minimum monthly pension currently pegged at $30. The last paragraph of the letter reads as follows:
“The member has been refunded the 'funded portion' of his contributions made up to 30 November 2013. The unfunded portion, amounting $799-20, has not been refunded pending receipt of the outstanding contributions relating to the period 1 December 2013 to 31 May 2014.”
In the draft order, the applicant prays for an order as follows:
“IT IS ORDERED THAT:
1. Respondent shall pay applicant $12,435-32 together with interest thereon at the rate of 5% calculated from the date of service of the Court Application on Respondent to the date of payment together with costs of suit on attorney–client scale.”
The respondent, in opposing the application, and as shown upon a reading of its opposing affidavit, has raised two issues:
(i)...,.
(ii) The second issue raised by the respondent is in two parts, namely;
(a) That the applicant cannot rely on a document which he has refused to sign in acknowledgment of its contents and which document was written on a without prejudice basis and marked so....,.
The applicant..., stated that there was no prejudice to be suffered by the respondent if Annexure C was admitted because albeit it being marked “without prejudice”, he accepted the respondent's computations and signed the copy which he left at the respondent's office but omitted to sign the one which he retained....,.
I considered the argument raised by the respondent, that, Annexure 'C' setting out how the figure of USD$9,695-02 was arrived at is marked 'Without Prejudice' and therefore should not be relied upon by the applicant as it is inadmissible.
It is not correct that in the law of evidence, it is a rule of thumb that a letter marked “without prejudice” cannot be disclosed or used in proceedings. The words 'without prejudice' ought to be considered as protecting the rights of the writer of the letter. In other words, the without prejudice statement or letter should not prejudice the applicant from adopting a contrary position from that it would have adopted in the without prejudice statement letter or communication.
I do not intend, however, to belabour the issue because of the view which I have taken of the matter, which view or position is favourable and therefore not prejudicial to the applicant, that, the letter in issue does not pass for an acknowledgment of debt since the amounts set out therein are subject to deductions which are not stated nor agreed to by the parties.
I have also considered the judgment of HUNGWE J in Mhangura Copper Mines Limited v Tayengwa Dugmore Muskwe HH443-15 and also took into account the fact that the respondent did not advance the issue of the admissibility of Annexure 'C' in its heads of argument nor indeed during oral argument.
