Employment Contract re: Termination iro Retrenchment and Severance Agreements

SC23-11 : MUKUNDI PLASTICS (PVT) LTD vs ELIJAH CHASEKWA and THIRTEEN OTHERS
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

The respondents were retrenched as a result of an application for voluntary retrenchment. The retrenchment was approved by the Retrenchment Board and payment was made in the respondents' accounts on 16 January 2009. On or about 29 July 2009, the respondents, discontented by the fact that their packages were paid in Zimbabwean dollars, took the matter for conciliation before a Labour Officer. A certificate of no settlement was issued by the Labour Officer on 21 August 2009. Thereafter, on 9 September 2009, the respondents successfully brought an application to the Labour Court seeking an order for confirmation of the retrenchment package, as agreed on 12 December 2008, subject to the basic monthly salary being calculated on the basis of the US dollar at the rate of US55= per month.

The main issue in this appeal is whether or not the Labour Court had jurisdiction to entertain the application.

Counsel, on behalf of the appellant, contended that the Labour Court had no jurisdiction on two grounds. Firstly, in terms of section 12C of the Labour Act, only where there is no agreement can the Labour Court be approached to decide on the terms of the retrenchment. In this case, the parties were in agreement and the matter was referred to the Retrenchment Board and approved. Secondly, since there had been no reference to compulsory arbitration by the Labour Officer, it was vital, in order to invoke the jurisdiction of the Labour Court, to allege “that it is not possible for a stated reason to refer the dispute or unfair labour practice to compulsory arbitration” as provided in subsection 5 of section 93.

We are in agreement with the submissions by counsel for the appellant on both points.

In the absence of a reference to compulsory arbitration, it was incumbent on the respondents to state, in their application, the legal basis provided in subsection 7 of section 93 for their approach to the Labour Court. This they failed to do. The application was therefore not properly before the court a quo and it erred in assuming jurisdiction.

Accordingly, the appeal is allowed with costs. The judgment of the court a quo is set aside and substituted as follows:

“The application is dismissed with costs.”

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

It is common cause that the respondents in this matter were employed by the applicant until retrenched on the basis of a retrenchment package approved by the Ministry of Public Service, Labour and Social Welfare on 7 June 2006. Each respondent's terms and conditions of retrenchment were:- “3 months' severance pay; 2 months per full year worked ...

SC06-15 : BALLANTYNE BUTCHERY (PRIVATE) LIMITED t/a DANMEATS vs EDMORE CHISVINGA & OTHERS
Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

This appeal arises from the application of two retrenchment agreements that were entered into between the parties on 23 January 2009. The first agreement stipulated the payment of specified terminal benefits, while the second provided for various payments in kind, i.e. fuel coupons and pork bones. The latter package was duly paid out and ...

The dispute in casu relates to the first agreement.

The appellant paid out the first retrenchment package in Zimbabwe Dollars on 13 February 2009, following the introduction of the multi-currency regime on 2 February 2009. Some four months later, on 16 June 2009, the respondents applied to a Labour Officer for the enforcement of their retrenchment benefits. Following the failure to settle the matter, it was referred to arbitration on 9 July 2009.

The arbitrator found that the appellant had wrongfully paid the package with un-usable Zimbabwe Dollar currency that had become defunct with effect from 3 February 2009. The appellant was, accordingly, ordered to recalculate the retrenchment package in the correct multiple currency of South African Rands or United States Dollars and to deposit the recalculated amounts into the respondents' bank accounts.

On appeal against this award, the Labour Court found that the delay of several months in enforcing the retrenchment package was not inordinate and that the respondents had not waived their rights. The arbitrator was entitled to hear further evidence to supplement the agreement as to when the packages were to be paid. There was no need for the respondents to make a specific claim for damages as the appellant had committed an unfair labour practice. The relief sought, i.e. payment in currency other than that agreed, was not incompetent and the arbitrator did not thereby rewrite the contract for the parties.

In effect, the court found that the arbitrator had not exceeded his terms of reference and had, in accordance with equity, correctly awarded payment in acceptable as opposed to valueless currency. Consequently, the retrenchment package was confirmed for payment in United States Dollars at a rate of conversion to be agreed between the parties or, failing such agreement, to be determined by the court. The appellant was also ordered to pay the respondents' costs.

The grounds of appeal herein are manifold, with most of them being tangential to the crux of the matter, and not having been pursued during the course of argument at the hearing of the appeal. In essence, the principal issue to be addressed is whether or not the arbitrator exceeded his terms of reference and thereby arrived at the wrong conclusions. Flowing from this is the correctness or otherwise of the decision of the Labour Court in upholding the arbitrator's award.

HH12-13 : ANDREW MILLS vs TANGANDA TEA COMPANY LIMITED
Ruled By: PATEL J

This matter involves two separate claims by the applicant as against the same respondent in Case Nos. HC11737/11 and HC279/12. The two claims emanate from the same cause of action and involve the same facts in issue between the same parties. They were accordingly consolidated, by consent, on 19 November 2012 through a chamber application ...

The applicant's consolidated claim is for summary judgment in Case Nos. HC11737/11 and HC279/12. He seeks the payment of two tranches of US$83,500= each and BUPA medical aid subscriptions in the sum of GB£1,332=92 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Background

The applicant is the former Managing Director of the respondent and a former Director of Meikles Ltd, having resigned from both positions with effect from 30 June 2011. His claim arises from a severance package totalling US$334,000= which was executed on 22 June 2011. The agreement in question was signed by one Brendan Beaumont, representing the respondent in his capacity as Group Chief Executive of Meikles Ltd and being duly authorised thereto. Meikles Ltd owns the entire shareholding in the respondent company. The applicant avers that the respondent has complied with certain aspects of the agreement, relating to payments in lieu of notice and leave and the transfer of the applicant's motor vehicle and cellphone. However, it wishes to resile from the principal element pertaining to severance pay. Its defence, as to the absence of proper authority to conclude the agreement and non-compliance with statute, is merely a dilatory tactic and an abuse of court process.

The respondent accepts that the applicant did report to Brendan Beaumont as his immediate boss. However, it denies that the latter had authority to execute the agreement with the applicant in the absence of resolutions from Meikles Ltd and the respondent authorising him to bind the respondent to the agreement. According to a supporting affidavit from its erstwhile lawyer (now deceased), the agreement was drafted on the instructions of Brendan Beaumont in collaboration with the applicant's counsel herein. Its defence, as per its plea, is that Meikles Ltd is a distinct legal entity quite separate from the respondent company. In any event, the agreement is invalid because of the absence of due authorisation to conclude it and because its principal features would entail non-compliance with certain provisions of the Companies Act.

The applicant avers that Brendan Beaumont, in his several capacities, held himself out to possess the requite authority and that he relied upon that representation. Brendan Beaumont therefore had ostensible authority to bind the respondent to the agreement with the applicant. Moreover, the provisions of the Companies Act which are relied upon by the respondent do not apply to the applicant as an employee who assumed the position of Director due solely to his contract of employment.

Requisites for Summary Judgment

The approach to be adopted in proceedings for summary judgment has been laid down on numerous occasions. All that the defendant need do in order to resist summary judgment is to allege facts disclosing a defence and sufficient to establish that defence; Rex v Rhodian Investments Trust (Pvt) Ltd 1957 R & N 723; 1957 (4) SA 631 (SR)…,. He must show that there is a mere possibility of his success or that he has a plausible case or that there is a triable issue; Jena v Nechipote 1986 (1) ZLR 29 (S)…,. It is only when all the proposed defences to the plaintiff's claim are clearly unarguable, both in fact and law, that the drastic relief of summary judgment may be allowed; Chrismar (Pvt) Ltd v Stutchbury 1973 (1) RLR 277 (GD)…,. In short, the plaintiff's case must be unassailable and unanswerable; Pitchford Investments (Pvt) Ltd v Muzari 2005 (1) ZLR 1 (H)…,.

Relationship between Respondent and Meikles Ltd

It is common cause that the respondent is a wholly owned subsidiary of Meikles Ltd. This is confirmed by the latter's Annual Report of 2011 which deals with the respondent as a subsidiary of the Meikles Group. It is also not in dispute that Brendan Beaumont was the Group Chief Executive of Meikles Ltd, and, as such, the applicant's immediate superior. Nevertheless, it cannot be doubted that Meikles Ltd and the respondent are separate corporate legal entities. The 2011 Annual Report explicitly draws this distinction as between Meikles Ltd and each subsidiary as being decentralised with a formal operating Board and clear definition of responsibility within well-defined policies. Again, the same report refers to and records the applicant's resignation as Executive Director of Meikles Ltd and as a member of its Board but makes no mention whatsoever of his position as Managing Director with the respondent and his resignation from that post.

All in all, it is reasonably clear Meikles Ltd and the respondent are distinct and separate legal entities, each with its own governing Board and executive management. The fact that Meikles Ltd owns 100% of the shares in the respondent company does not, in itself, make the actions of the Meikles Group Chief Executive binding on the respondent.

Authority to Conclude Agreement

Section 12 of the Companies Act [Chapter 24:03] codifies the so-called turquand rule or presumption of regularity in corporate affairs. It provides that any person dealing with a company is entitled to make certain assumptions and that the company is estopped from denying their truth. In particular, it may properly be assumed that the company's internal regulations have been duly complied with. See, in this regard, Wolpert v Uitzigt Properties (Pty) Ltd & Others 1961 (2) SA 257 (W)…, and the authorities there cited.

In terms of section 12 of the Companies Act [Chapter 24:03], it may also be assumed that every person described in the company's register or returns as a director, manager or secretary of the company, and every person whom the company represents to be an officer or agent of the company, has been duly appointed and has authority to exercise the functions customarily exercised by a director, manager or secretary, or by an officer or agent of the kind concerned. However, a person is not entitled to make any such assumptions if he has actual knowledge to the contrary or if he ought reasonably to know the contrary. Section 13 of the Companies Act stipulates that a company shall be bound in terms of section 12 notwithstanding that the officer or agent concerned acted fraudulently or forged a document purporting to be sealed or signed on behalf of the company.

In essence, what these provisions enact, in the corporate context, are the common law rules governing ostensible or apparent authority entitling third parties to enforce contracts concluded with the agents or employees of their principals. See Reed N.O. v Sager's Motors (Pvt) Ltd 1970 (1) SA 521 (RAD); Stewart v Zagreb Properties (Pvt) Ltd 1971 (2) SA 346 (RAD); Seniors Service (Pvt) Ltd v Nyoni 1986 (2) ZLR 293 (S); Mine Consultants and Supply Company v Borrowdale Motors (Pvt) Ltd 1990 (2) ZLR 281 (S).

Counsel for the applicant contends that the benefits of sections 12 and 13 of the Companies Act apply not only to outsiders but also to the Directors of a company, particularly where the termination of their contracts of employment are in issue. He further submits that Brendan Beaumont, by virtue of his position, had ostensible authority to act for the respondent and bind it to the agreement that he entered into on its behalf with the applicant.

Counsel for the respondent submits to the contrary that sections 12 and 13 are not intended for the benefit of any insider who ought to have known of the alleged irregularity.

I fully agree with that submission.

As I have already indicated, section 12 of the Companies Act legislates the rule in Royal British Bank v Turquand (1856) 6 E & B 327; [1843-60] All ER Rep 435. However, it is well-established that the rule does not protect any person, who, by reason of his position within the company, ought to have known of the irregularity in question. See Mahony v East Holyford Mining Co. (1875) LR 7 HL 869…,.; Howard v Patent Ivory Manufacturing Co. (1888) 38 ChD 156; Mineworkers Union v J.J. Prinsloo 1948 (3) SA 831 (A). Moreover, Wolpert v Uitzigt Properties (Pty) Ltd & Others 1961 (2) SA 257 (W) does not establish the broad proposition contended on behalf of the applicant, having regard to what was stated in that case at pp. 264F and 266.

In the instant case, the applicant was clearly not an outsider or mere employee of the respondent, but its Managing Director. He alleges that he was precluded from attending Board meetings of Meikles Ltd and the respondent at the relevant time. Even if this were true, he could quite easily have obtained the minutes of relevant Board meetings so as to ascertain decisions taken concerning his resignation and severance package. In any event, in his position as Managing Director, he must have known that any decision in that regard would require a Board resolution from the respondent authorising Brendan Beaumont to negotiate and conclude his severance package. For these reasons, I take the view that the applicant is not entitled to take advantage of the presumption of regularity embodied in section 12 of the Companies Act.

For the same reasons, I do not think that there is any basis for invoking ostensible authority in relation to Brendan Beaumont's actions. Firstly, the fact that he was the Group Chief Executive of Meikles Ltd does not mean that he had the requisite ostensible authority, by virtue of that position, to negotiate and conclude severance packages on behalf of the respondent. There is nothing in the papers to suggest that he normally exercised that function in that particular capacity. Secondly, as I have already emphasised, the applicant was not some third party dealing with an agent or employee of the respondent. He was its Managing Director, and, given that position, I can see no justification for extending the doctrine of ostensible or apparent authority to the facts of this case.

Application of Companies Act to Validity of Agreement

Section 176 of the Companies Act [Chapter 24:03] prohibits tax-free payments to directors in the following terms:

“(1) It shall not be lawful for a company to pay a director remuneration, whether as director or otherwise, free of any taxation in respect of income, or otherwise calculated by reference to or varying with the amount of such taxation or with the rate of taxation on incomes, except under a contract which was in force on the 1^st January 1952, and provides expressly, and not by reference to the articles, for payment of remuneration as aforesaid.

(2) Any provision contained in a company's articles or in any contract other than such a contract as aforesaid, or in any resolution of a company or a company's directors, for payment to a director of remuneration as aforesaid shall have effect as if it provided for payment, as a gross sum subject to taxation, of the net sum for which it actually provides.”

Counsel for the applicant submits that the sum of US$334,000= payable to the applicant as severance pay in terms of clause 2(c) of the agreement is a net amount after taxation is taken into account. The payment therefore does not contravene section 176 of the Companies Act.

Counsel for the respondent counters that this section applies even if the payment in question is calculated by reference to the rate of taxation.

I entirely agree.

Section 176(1) of the Companies Act is designed to curb the mischief of parties determining the tax element on their own without the approval of the taxman. This construction is fortified by section 176(2) which deems the net sum actually provided for as a gross sum subject to taxation. Furthermore, even the agreed figure of US$334,000= cannot possibly be a net amount after taxation because it includes the sum of US$110,000= as compensation for restraint of trade. It follows that the severance payment stipulated in the agreement is unlawful as being in contravention of section 176(1) of the Companies Act [Chapter 24:03].

Section 178 of the Companies Act [Chapter 24:03] requires the approval of the company for any payment to a Director for loss of office as follows:

“It shall not be lawful for a company to make to any director of the company any payment by way of compensation for loss of office or as consideration for or in connection with his retirement from office, without full particulars with respect to the proposed payment, including the amount thereof, being disclosed to members of the company and the proposal being approved by the company in general meeting.”…,.

Counsel for the applicant contends that this provision merely requires disclosure of any compensatory payment to members of the company and its ratification by a resolution of members at a general meeting. He argues that disclosure is not a prerequisite, particularly as general meetings are only held once every year.

I must emphatically disagree.

Firstly, it is perfectly practicable for severance payments envisaged in section 178 of the Companies Act to be raised at special general meetings of a company, which meetings may be convened at any time to deal with matters arising in the intervening period between Annual General Meetings. Secondly, and more significantly, there is no reference in the provision to any binding agreement being submitted for mere ratification by members. Rather, the provision refers to full particulars of the proposed payment and the amount thereof being disclosed to members and the proposal being approved by the company in general meeting. In my view, the wording of the section makes it unambiguously clear that approval by members is a prerequisite for any severance payment to a Director.

Accordingly, the severance payment in casu, not having been disclosed to the members of the respondent, and not having been approved by them at a general meeting, is patently in violation of section 178 of the Companies Act [Chapter 24:03] and consequently unlawful.

Section 179 of the Companies Act [Chapter 24:03] deals with any payment to a Director for loss of office in connection with the transfer of a company's property. It provides that:

“(1) It shall not be lawful, in connection with the transfer of the whole or any part of the undertaking or property of a company, for any payment to be made by any person to any director of the company by way of compensation for loss of office or as consideration for or in connection with his retirement from office, unless particulars with respect to the proposed payment, including the amount thereof, have been disclosed to the members of the company and the proposal is approved by the company in general meeting.

(2) Where a payment which is hereby declared to be illegal is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.”

As became apparent at the hearing of this matter, this section has no bearing whatsoever on the facts of this case. It deals with any payment made to a Director by a person other than the company itself in connection with the transfer of its undertaking or property, presumably to that person or some other party. I would simply note that section 179(1), like section 178, requires the prior approval of members at a general meeting as a precondition for any compensatory payment envisaged in the provision.

Lastly, there is the rather curious argument put forward by counsel for the applicant that the above provisions do not apply to the applicant because he first joined the respondent in 1993 as its General Manager and was then appointed to the position of Managing Director in November 2003. Therefore, so counsel for the applicant contends, as the applicant was only appointed to the respondent's Board as a Director by virtue of his contract of employment as Managing Director, he was an employee at the time of his resignation and not a Director.

This contention is categorically facile and spurious in the extreme. It is plainly obvious that when the applicant was appointed as Managing Director he was appointed to an entirely new post. As from November 2003 he was no longer an employee but indisputably a Director within the contemplation of sections 176, 178 and 179 of the Companies Act [Chapter 24:03].

Bona Fide Defence and Triable Issues

It is abundantly clear from all of the foregoing that the respondent has several bona fide defences to the applicant's claim. These pertain to its relationship with Meikles Ltd and its Group Chief Executive, the latter's authority to conclude the agreement relied upon by the applicant, and the validity of that agreement under sections 176 and 178 of the Companies Act. By the same token, it is equally clear that the plaintiff's case is not unassailable and unanswerable.

There is also the point that the issue of ostensible authority contended on behalf of the applicant, if it is at all arguable in the context of this case, is essentially a question of fact to be determined by viva voce evidence. See Reed N.O. v Sager's Motors (Pvt) Ltd 1970 (1) SA 521 (RAD)…,.; and Stewart v Zagreb Properties (Pvt) Ltd 1971 (2) SA 346 (RAD)…,. This, together with the defences raised by the respondent, constitute triable issues to be properly ventilated in a trial.

Disposition

As regards costs, I note that the applicant brought this application some seven weeks after the respondent had filed its plea. He was fully aware of the defences raised and must have appreciated that an application for summary judgment was improper and bound to fail. In these circumstances, and in terms of Rule 72, it seems just and appropriate that the respondent be awarded the costs of this application and that these costs be paid before the matter proceeds any further.

In the result, the application for summary judgment is dismissed with costs. It is further ordered that the main action be stayed until the applicant has paid the respondent's costs relative to this application.

HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED
Ruled By: MAKONI J

On the merits, the respondent contends that the letter on which the claim is based states that the figure of US$15,900= excludes tax. The applicant is therefore not entitled to the amount claimed. The applicant conceded that the amount claimed is subject to tax. He then produced a tax directive which he alleges he obtained from ...

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED
Ruled By: MTSHIYA J

This is an urgent application wherein the applicant seeks the following relief:- “PROVISIONAL ORDER TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms:- 23. The purported termination of the applicant's contract of employment by the respondent by letter dated 31st March 2014 is declared ...

This is an urgent application wherein the applicant seeks the following relief:-

“PROVISIONAL ORDER

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

23. The purported termination of the applicant's contract of employment by the respondent by letter dated 31^st March 2014 is declared unlawful and is hereby set aside.

24. The respondent be and is hereby ordered to pay all salaries and benefits due to the applicant in terms of the contract of employment pending the lawful termination of the contract of employment.

2.5 That the respondent shall pay costs of suit on the Law Society scale of Attorney and Client.

INTERIM RELIEF GRANTED

That pending the confirmation or discharge of this provisional Order applicant is granted the following relief:

1. That respondent shall forthwith restore and reinstate applicant to its payroll and to this end pay all salaries due and grant all benefits due to the applicant in terms of the contract of employment extant between the parties.

2. That respondent shall pay costs of suit in respect of this Urgent Chamber Application on the Law Society Zimbabwe's scale of Attorney and Client.”

It is common cause that the applicant, with effect from 4 January 2010, was employed by the respondent as General Manager (Risk). Following a restructuring process, the name of the post was changed to Risk/Governance Executive.

On 6 March 2014, as a result of the restructuring exercise, the Managing Director of the respondent, Mr Simon J. Hammond, invited the applicant to a meeting where he informed the applicant that his job had become redundant and that he would therefore be retrenched. The applicant was told that the retrenchment would be with immediate effect. The applicant then requested the respondent to officially inform him of its position in writing. Indeed, on the same date (i.e 6 March 2014) a letter in the following terms was handed to the applicant:-

“Dear Christmas

RE: RETRENCHMENT

I refer to the discussion held this morning, the 6^th of March 2014, in which you were informed of your retrenchment.

It was explained to you that in October 2013, Old Mutual Shared Services embarked on a restructuring exercise of the Risk and Governance function. This exercise resulted in your current role being deemed redundant hence the need for the retrenchment.

It was explained to you that the employer offers the retrenchment based on the formula stated below:

1. Equivalent of 13.5 month's pensionable salary lump sum payment as severance pay at the date of retrenchment.

2. 3 months pensionable salary as notice pay.

3. A gratuity of 75% (seventy five percent) of pensionable monthly salary for each year of service.

4. Six (6) months Employer Medical Aid contributions.

5. Cash in lieu of leave based on pensionable salary at the date of retrenchment.

6. One month pensionable salary as stabilisation allowance.

7. A pro-rated bonus.

8. To purchase the company allocated vehicles at 20% of the cost price.

9. All indigenous Plan and Management Incentive Plan shares vest immediately.

It was explained to you that the retrenchment is with immediate effect, and also that you will need to do a proper handover of the Risk portfolio to the Managing Director OMSS.

Yours sincerely,

S J Hammond (Mr.)

Managing Director”

The retrenchment formula was rejected by the applicant.

It is clear from the above letter that the retrenchment package on offer by the respondent was indeed discussed at the meeting of 6 March 2014. However, on 14 March 2014, through a twelve page letter, the applicant responded to the respondent's letter of 6 March 2014. His response, in part, read as follows:-

“Response to the Meeting of 6 March 2014 and Letters of 6 March 2014

2. I hold, and currently hold, a valid contract of employment with Old Mutual Services (Private) Limited. This contract of employment was executed on 23 November 2009 and formally accepted in terms of the provisions of my letter of 23 November 2009.

3. As at 06 March 2014, I submit that I have considered, and continue considering, the meeting and letter of Thursday 06 March 2014 to be an act of the employer [i.e. Old Mutual Shared Services (Private) Limited] forcing me to immediately, and without notice, proceed, to go on leave, with full benefits, pending lawful termination of my subsisting contract of employment, as stated under clause 2 above.

4. With regard to the document that was handed to me during the meeting on Thursday, 06 March 2014, by Laurence T Gonye, the Human Resources Executive of Old Mutual Shared Services (Private) Limited, and titled: 'OLD MUTUAL RETRENCHMENT FORMULA', I am not aware that, up to, and until and including at, 11h00 on Thursday, 6 March 2014, Old Mutual Shared Services (Private) Limited, as my employer, has ever negotiated and agreed such an arrangement with me, as employee. This understanding also applies in the case of Old Mutual Zimbabwe Limited, the sole beneficial owner of the entire issued shares in the capital of Old Mutual Share Services (Private) Limited.

5. Given the extraordinary circumstances as set out/outlined in clause 1 above; and clauses 8-35 below, I am submitting that Old Mutual Shared Services (Private) Limited, as employer, immediately pays, to me with good value to the credit of my nominated bank account in Zimbabwe, in full and final settlement (net of any applicable statutory taxes) compensation in the sum of USD850,000= (Eight hundred and fifty thousand United States Dollars). This amount or value is exclusive of any sums of money and/or benefits that are contractually due to me (as employee) as at the date that is determined as the effective date on which lawful termination of my contract of employment with Old Mutual Shared Services (Private) Limited is agreed upon.

6. Contractual compensation and/or remuneration, and/or emoluments, including statutory leave entitlements, that is/are due to me, as at Thursday, 06 March 2014, remain/s due and payable or 'en-cashable' and is/are not subject for negotiation, save for the deferred share elements for full paid and issued B Class in the capital of Old Mutual Zimbabwe Limited. The table under clause 37 details such entitlements, as at 06 March 2014.

7. The stated value of USD850,000-00 (Eight hundred and fifty thousand United States Dollars), under clause 5 above, is based on, or derived from, expected and contractual compensation, and/or remuneration, and/or emoluments due to me, assuming an on-going conducive tenure (and term) of my contract of employment, including a congenial working environment and cordial interpersonal relationships with other members of the executive management of Old Mutual Zimbabwe Limited and all its subsidiary entities, including Old Mutual Shared Services (Private) Limited.”

On 24 March 2014, the respondent again wrote to the applicant in the following terms:-

“RE: TERMINATION OF CONTRACT OF EMPLOYMENT

I acknowledge receipt of your letter dated the 14^th of March 2014 and below is the employer's response to the issues you raised. Please note that the response is summarized and does not necessarily follow your paragraph numbering.

Be advised that your contract of employment was terminated as a result of a restructuring exercise and not as a result of an act of misconduct. The termination was with effect from the 6^th of March 2014. On the basis of goodwill, the employer paid you a full salary and benefits for the month of March 2014. However, your salary and benefits will cease effective 31 March 2014. Please note that the only issue left for the parties to agree on is that of the retrenchment package due to you.

The fact that there was a restructuring exercise of the Risk and Governance function was known to you as far back as October 2013 as stated in your letter. At the completion of the restructuring exercise, what would have been your role was upgraded from a major job area Role size “P” to a function size “Q”. The focus of the new role is of a strategic nature and is responsible for determining overall business risk directions and devising and implementing strategic initiatives. As stated in the new job descriptor, the role now requires the incumbent to have full actural and financial modelling competencies.

This restructuring process resulted in your role being deemed redundant. You were, however, given the opportunity to apply for the new position as stated in your letter but you chose not to apply.

Your performance record in the old role for the years served is noted and there is no dispute on how well you performed. The restructuring exercise was necessitated by the ever changing needs of the business and not because of your performance or competency in the previous role. As you are also aware, the restructuring exercise has not only taken place in Zimbabwe but the rest of Old Mutual Africa.

In the meeting of the 6^th of March 2014, the company offered you a severance package based on the established Old Mutual retrenchment formula. The formula has been restated below for your ease of reference as follows:

1. Equivalent of 13.5 months' pensionable lump sum payment as severance pay as at the date of retrenchment, which amounts to - $80,437=46.

2. 3 months' pensionable salary as notice pay, which amounts to - $17,874=99.

3. A gratuity package of 75% (seventy five percent) pensionable monthly salary for each year of service, which amounts to - $18,976=87.

4. Six (6) months Employer Medical Aid contributions, which amounts to - $1,884=.

5. Cash in lieu of leave based on pensionable salary as at the date of retrenchment, which amounts to - $12,019=58.

6. One month pensionable salary as stabilisation allowance, which amounts to - $5,958=33.

7. A pro-rated bonus.

8. To purchase the company allocated vehicle at 20% of the original cost price.

9. All Indigenous Plan and Management Incentive Plan shares vest immediately.

I wish to advise you that the employer's offer remains stated above and your settlement request of $850,000= was rejected by the company. The amount you seek is not only unreasonable and unaffordable but also overlooks the fact that we are custodians of shareholders' and policyholders' funds and cannot be seen to utilize their funds in such a manner every time an employee's contract is terminated.

The employer is prepared to explain the offer in greater detail and should you need further clarification of the offer feel free to contact myself or Laurence Gonye, the HR Executive.

Be advised that for purposes of concluding this matter I will be expecting your response not later that seven (7) days from date of receipt of this letter.

Yours sincerely

S J Hammond

Managing Director”

Clearly, as at 24 March 2014, the respondent was aware that the matter had not yet been concluded but for some strange reason, notwithstanding failure to agree on the retrenchment package, the employer took the view that the applicant's employment terminated on 6 March 2014.

On 27 March 2014, the applicant wrote back to the respondent reiterating his position contained in his letter of 14 March 2014. He wrote, in part;

“5. Please not that I have not, and do not, agree that Old Mutual Shared Services (Private) Limited, as employer, ceases payment of my full salary and benefits effective 31 March 2014. My position in this matter is well set out in terms of clauses 2 and 3 of my letter of Friday, 14 March 2014 and, as detailed under clause 37 of the same letter and clause 17 here below.

6. You, as the Employer representative, and Laurence Gonye, as the Human Resources Executive at Old Mutual Shared Services (Private) Limited, are exhorted to ensure continual monthly payment of my full salary and benefits (on the same date as is ordinarily that date on which all employees of Old Mutual Shared Services (Private) Limited are paid) until such time that agreement on the lawful termination of my contract of employment is made. Until lawful termination of my contract of my employment, the payment of my full salary and benefits must continue to the credit of my bank account, as already on record with the Human Resources Division of Old Mutual Shared Services (Private) Limited.

I look forward to your confirmation to that effect, no later than Friday, 04 April 2014.”

The above letter indicated a deadlock in the retrenchment negotiations resulting in the respondent writing to the applicant on 2 April 2014 in the following terms;

“RE: TERMINATION OF CONTRACT OF EMPLOYMENT

I acknowledge of your letter dated the 27^th of March 2014 whose contents have been noted.

It is the company's view that the parties have failed to reach an agreement. We have therefore referred the matter to the Retrenchment Board. You shall hear from the said Board in due course.”

Indeed, as of now, the matter is still before the Retrenchment Board.

In his founding affidavit, the applicant states in para(s) 5 and 6 as follows:

“5. In the main, this is an application for:

5.1 An order declaring that the purported termination of the applicant's contract of employment by the respondent by letter dated 31^st March 2014 is unlawful and is hereby set aside; and

5.2 An order that the respondent is to pay all salaries and benefits due to the applicant in terms of the contract of employment pending the lawful termination of the contract of employment. Effectively, seek an interdict against the respondent stopping it from ceasing the payment of my salary and benefits pending the determination of an alleged application for retrenchment made by the respondent to the Retrenchment Board or the lawful termination of the contract of employment. Put more positively, it is an application to compel respondent to pay my full salary and benefits pending the finalisation of the Retrenchment proceedings allegedly instituted by the respondent and pending before the Retrenchment Board or the lawful termination of my contract of employment.”…,.

I want to believe the letter referred to in 5.1 above is the one dated 24 March 2014.

In its opposing appears, the respondent argued that:-

a) This court has no jurisdiction because this is a labour matter.

b) The applicant has not yet exhausted available domestic remedies i.e. approaching the Labour Court.

c) This court cannot reinstate the applicant before a determination on whether or not his employment was lawfully terminated on 6 March 2014.

d) The applicant has not made an application for any substantive relief.

e) The matter is pending before another forum i.e. the Retrenchment Board; and

f) The matter is not urgent because termination of employment took place on 6 March 2014 and yet this application was only filed on 11 April 2014.

SC16-13 : FREDA REBECCA GOLD MINE HOLDINGS LIMITED vs M NHLIZIYO and 180 ORS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

THE BACKGROUND The respondents are all former employees of the appellant. In or about April 2007, upon consideration of its financial viability due to reduced production levels, the appellant decided to retrench the respondents so as to reduce its operational costs and notified the respondents of its intention to do so. Negotiations then took place ...

THE BACKGROUND

The respondents are all former employees of the appellant. In or about April 2007, upon consideration of its financial viability due to reduced production levels, the appellant decided to retrench the respondents so as to reduce its operational costs and notified the respondents of its intention to do so. Negotiations then took place in terms of the procedures laid down by the Labour Act culminating in the approval, in terms of section 12C of the Labour Act [Chapter 28:01], of the retrenchment, on 19 July 2007, by the then Minister of Public Service Labour and Social Welfare, (“the Minister”). The retrenchment was approved on the following terms and conditions:

1. Service pay 2 months' salary for each year worked.

2. Severance pay 3 months' salary.

3. Relocation allowance 3 months' salary.

The net effect of the Minister's decision was that the appellant was to pay a total of ZW$28 billion to the respondents.

On 24 July 2007, the appellant's General Manager wrote to each of the respondents in the following terms:

“Management advises that due to the high costs of the retrenchment, as approved by the Ministry of Labour, the process is deferred until further notice.

As a consequence of these developments, you are now required to report back to work on Monday 30 July 2007.

On resumption of duty, you will revert to the previous rotational duties i.e. if you were on short time work before proceeding on paid leave pending finalization of the retrenchment process you will be expected to resume work on a short time basis. Please note that paragraph two (2) of the internal memorandum notifying you of the retrenchment exercise clearly stated that you remain an employee until the finalisation of the exercise.”

On 30 July 2007, he also wrote to the Secretary for Social Welfare advising that the appellant had decided to defer the retrenchment to a later date. The relevant part of the appellant's letter reads as follows:

“We advise that the reason for the retrenchment is the dire situation in which the mine finds itself in as it embarks on the rehabilitation of the plant. The situation remains critical and the magnitude of the problem can only become worse because of the size of the retrenchment package approved. The total bill is in excess of ZW$28 billion and unaffordable by Freda Rebecca Mine.

In view of this situation, Freda Rebecca Mine management has decided to defer the Retrenchment to a later date.

In the meantime, all the employees have been called to resume work while the company maps the way forward on this matter.”

All the respondents signed acknowledging receipt of letters requesting them to resume work. They reported for work for about two days and declined to work thereafter, asserting that their contracts had been terminated by reason of their retrenchment. An Internal Memorandum from the appellant's General Manager, dated 3 October 2007, again reminded the respondents to report for duty on 8 October 2007. On 16 October 2007, the respondents, who had not reported for duty, were summarily dismissed in terms of the Collective Bargaining Agreement for the Mining Industry Code of Conduct, Statutory Instrument 165 of 1992, S.I.165 of 1992. They were charged with disobedience to a lawful order and failing to report for work for a period in excess of five (5) days. The respondents received and signed for their terminal benefits. Thereafter, they filed an application in the Labour Court seeking an order in the following terms:

“IT IS ORDERED THAT:

1. Application be and is hereby granted with the following terms:

(a) The Minister's decision of 19 July 2007 is still binding on both parties.

(b) The purported dismissal of the Applicants by the Respondent be and is hereby declared void.

(c) The Respondent be and is hereby ordered to pay out the retrenchment packages of each respective Applicant in United States Dollars or its lawful equivalent in South African Rand (ZAR) through direct deposit into Applicant's Legal Practitioners Trust Account within 20 days of this order.

2. The Respondent be and is hereby ordered and directed to pay to the Applicant a total amount of US$1,475,055=59 or its lawful equivalent in South African Rand (ZAR).

3. The respondent to pay costs of suit.”

The application found favour with the Labour Court. It ruled that the respondents remained employees of the appellant only up to the date of the Minister's approval of the retrenchment, that is, 19 July 2007. It found that since the respondents had ceased to be employees of the appellant on 19 July 2007, the appellant had no right to recall the respondents to work or to institute disciplinary proceedings against them leading to their dismissal. It further ruled that the respondents could approach the Minister for the alteration of the quantification which was done in United States Dollars. It issued the following order:

“1. The applicants remain retrenchees of the respondent and are entitled to their retrenchment package as per the Minister's decision of 19 July 2007.

2. The respondent is ordered to pay retrenchment packages as per the Minister's decision by 31 August 2010.

3. The applicants can approach the Minister for alteration in quantification.

4. There be no order as to costs.”

The main ground of appeal advanced by counsel for the appellant is that the court a quo erred and misdirected itself in finding that the Ministerial approval of the retrenchment of the respondents was the effective retrenchment of the respondents and that it bound the appellant to such extent that the appellant could not require the respondents to return to work.

It is my view that a determination of this ground in favour of the appellant would dispose of the appeal. I deal with it, hereunder, in two parts.

(i) WHETHER THE MINISTER'S LETTER CONSTITUTED THE EFFECTIVE RETRENCHMENT AND THEREFORE A TERMINATION OF THE CONTRACTS TO EMPLOYMENT

A contract of employment is concluded by an employer and employee and can only be terminated by one or other of them. The Minister, not being a party to the employment agreement, could not terminate it.

Section 12C(9) of the Labour Act [Chapter 28:01] gives to the Minister the following powers:

“(9) The Minister shall consider, without delay, any recommendation submitted to him by the Retrenchment Board, and, having regard to the factors referred to in subs (11), shall -

(a) Approve the proposed retrenchment, subject to such terms and conditions as he may consider necessary or desirable to impose; or

(b) Refuse to approve the proposed retrenchment,

and shall cause the Retrenchment Board, the works council or employment council, as the case may be, to notify the employer and employees concerned in writing of the decision in the matter.”

The proposed retrenchment can either be refused by the Minister or approved, subject to terms and conditions which the Minister deems fit to impose. Thereafter, the Minister must cause his decision in the matter to be conveyed to the employer and the other parties mentioned in subsection (9).

Thus, in approving a proposed retrenchment, the Minister is, in effect, saying; “You may proceed with the retrenchment but only on these conditions.”

The Minister's directive is not constitutive of the retrenchment nor does it terminate the contracts of employment of the proposed retrenchees. It merely sets the conditions upon which the employer, if still so minded, can proceed to retrench. The contract is terminated by the employer when it proceeds with the retrenchment. In this connection, the provisions of section 12C(5) of the Labour Act [Chapter 28:01] are relevant. Section 12C(5) of the Labour Act [Chapter 28:01] provides:

“(5) No employer shall retrench any employee without affording the employee the notice of termination to which the employee is entitled…,.”

Accordingly, I hold the view that where, as in this case, the employer decides not to retrench, the employment contracts remain in force.

(ii) WHETHER THE EMPLOYER COULD REVOKE ITS INTENTION TO RETRENCH AND RECALL THE EMPLOYEES AT WORK

It was submitted by counsel for the appellant that where the retrenchment package set by the Minister would have the effect of worsening the financially precarious situation of the employer, the very purpose of the retrenchment was defeated. Further, since the retrenchment exercise was for the benefit of the appellant, the appellant could revoke its intention to retrench and invite the respondents back to work.

I agree with these submissions. They are in keeping with the spirit of sections 12C and 12D of the Labour Act [Chapter 28:01].

It should be noted that the Labour Act [Chapter 28:01] places no obligation on an employer to retrench its employees. Indeed, the clear intention of Parliament which emerges from sectios 12C and 12D of the Labour Act [Chapter 28:01] is that every effort should be made to avoid retrenchment wherever possible. Thus, section 12C(11) of the Labour Act [Chapter 28:01] provides:

“(11) In deciding whether or not to approve the retrenchment of employees in terms of this section, due regard shall be paid -

(a) To the following general considerations -

(i) That the retrenchment of employees should be avoided so far as possible, where this can be done without prejudicing the efficient operation of the undertaking in which the employees concerned are employed;

(ii) That the consequences of retrenchment to employees should be mitigated so far as possible;

(b) To the following considerations in particular cases -

(i) The reasons put forward for the proposed retrenchment; and

(ii) The effect of the proposed retrenchment upon the employees involved, including their prospects of finding alternative employment and the terminal benefits to which they will become entitled.”

As I understand it, the letter written by the appellant to the Minister was merely stating that the onerous conditions imposed by the Minister were more detrimental, financially, to the appellant than the retention of the employees. After all, it was to avoid financial collapse that the appellant sought to take the drastic measure of retrenchment in the hope that it would be able to carry on its business.

In Continental Fashions (Pvt) Ltd v Mupfuriri & Ors 1997 (2) ZLR 405 (S), the company (the employer) had, during the course of a retrenchment exercise, sought to withdraw the retrenchment notice. The withdrawal was not accepted by the Principal Labour Relations Officer. McNALLY JA…, had this to say:

“The principal labour relations officer dealing with the matter decided to ignore the 'purported withdrawal.' I cannot understand how such an attitude can be adopted. It seems to me to promote form above substance, procedure above reality, red tape above common sense. The whole purpose of legislation about retrenchment is to mitigate the effect of retrenchment upon those declared redundant. However good the retrenchment package, it must normally be second prize. The first prize must be a withdrawal of the redundancy notice. How an official can reject that first prize when it is offered is incomprehensible. Did he do so on behalf of the workers, and if so, on what authority?”

And at p407F:

“But where, as here, the purpose of retrenchment is to avoid the collapse and liquidation of the company, the wellbeing of the retrenchees cannot be the only consideration. The survival of the company is the motivating consideration. The purpose of the exercise is to save the company. In so doing, care must be taken to cushion the blow to the workers. But to say, as the Tribunal has done in this case, that it is almost irrelevant whether or not the company can afford the package, is a fundamental misdirection. The immediate objective of retrenchment remains the saving of the company and of the jobs of the remaining employees. Clearly therefore, although it is not stated in the Regulations, the ability of the company to pay the retrenchment package is the ultimate criterion – the bottom line. If the company cannot pay what it is ordered to pay, it must go into liquidation, which is what the retrenchment exercise was designed to avoid.”

These remarks are equally applicable to the present case where the retrenchment packages set by the Minister are unaffordable to the employer. Clearly, in these circumstances, an employer is not obliged to retrench, on the conditions imposed, to its financial detriment.

In my view, until the appellant notified the respondents of the termination of their employment by virtue of the fact that the proposed retrenchment was going to be effected by the appellant, the respondents remained in the employ of the appellant who was entitled to recall them back to work. Their failure to respond positively to the command by the appellant to return to work constituted misconduct on their part. They were accordingly properly charged with misconduct and dismissed by the appellant.

The appeal is therefore allowed with costs.

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

This is an appeal against the whole judgment of the Labour Court handed down on 20 February 2015. FACTUAL BACKGROUND The respondent was employed by the appellant as an Apprentice Distribution Electrician on 17 September 1984. He rose through the ranks until he was promoted to the position of Technical Services Director in terms of a contract dated 27 August 2004. ...

This is an appeal against the whole judgment of the Labour Court handed down on 20 February 2015.

FACTUAL BACKGROUND

The respondent was employed by the appellant as an Apprentice Distribution Electrician on 17 September 1984. He rose through the ranks until he was promoted to the position of Technical Services Director in terms of a contract dated 27August 2004. In July 2007, the appellant's Managing Director wrote to the respondent advising him of a restructuring exercise being underway and that his post had to be abolished. He also notified him of an intention to work out his retrenchment package. On 30 July 2007, the Group Company Secretary of the appellant wrote a letter to the respondent in which he outlined the appellant's proposal for a retrenchment package.

The respondent, through his legal practitioners, indicated that he was not agreeable to the proposals concerning the date of termination of the employment relationship, the housing loan, performance bonus, personal loan, foreign travel, purchase of a replacement motor vehicle and furniture.

After some correspondence, the parties failed to agree on the appropriate package and eventually the matter was referred to arbitration, before Arbitrator Bvumbe, in terms of section 93 of the Labour Act [Chapter 28:01]. His terms of reference were the following:

“1. Whether or not ZESA Holding (Private) Limited was in breach of the terms and conditions of the contract of employment in respect of Itayi Utah who is employed by the applicant as Technical Services Director. Employment contract dated 7 August 2004 in respect of the non-fulfilment of the following benefits:

(a) Housing loan.

(b) Personal loan.

(d) Replacement Motor Vehicle.

2. Whether or not the respondent, Itayi Utah, is entitled to:

(a) Foreign Travel;

(b) Office Furniture;

Benefits as part of his retrenchment package.”

Before the Arbitrator, the parties had agreed that the effective date of the 'retrenchment' would be the date of the arbitral award (and this agreement was captured in the arbitral award by Arbitrator Bvumbe). In addition, the arbitrator held that the respondent was not entitled to foreign travel and office furniture as well as the housing loan which he claimed. In respect of a motor vehicle benefit that had been withdrawn, the arbitrator held that the respondent should be paid damages and he also ordered three months' worth of salary as compensation for the personal loan.

On 24 June 2009, the appellant calculated the severance package which the respondent signed “without prejudice”. The money was subsequently deposited into his account.

In an apparent volte face, the respondent later contended that the package had not been properly calculated and that his date of termination should change from 31 March 2009 to the date he would be paid what he contended he was entitled to. He also, at this stage, questioned the lawfulness of the 'retrenchment' process even though it had resulted in him signing for and accepting a package in terms of Arbitrator Bvumbe's award.

This new challenge, to a process that had been concluded between the parties, was referred to a different Arbitrator, Mr Manase. His terms of reference encapsulated the respondent's challenge to the earlier 'retrenchment' process concluded through Arbitrator Bvumbe's award. They read as follows:

“(i) Whether or not respondent's purported retrenchment of applicant and the process that followed was lawful; and

(ii) Whether or not applicant is still an employee of respondent in terms of the law.”

Arbitrator Manase held that the purported retrenchment of the respondent was null and void as it had not been approved by the Minister, and, therefore, the respondent was still an employee of the appellant. He ordered that he be reinstated to his former employment with the appellant.

Aggrieved by this decision, the appellant appealed to the Labour Court on the grounds that the Arbitrator erred in not finding that acceptance of the retrenchment package, even on a purported “without prejudice” basis, destroyed any future claims in that respect by the respondent. The appellant also averred that the arbitrator erred grossly at law in holding himself to have jurisdiction to determine the conclusiveness or otherwise of the award by Arbitrator Bvumbe.

The Labour Court dismissed the appeal.

Having unsuccessfully sought leave to appeal to this Court, in the Labour Court, leave was sought and granted by this Court on 14 December 2016. This Court is now seized with the appeal....,.

However, before addressing the issue of Arbitrator Manase's jurisdiction to hear the matter, it is my view that the nature and effect of the process of 'retrenchment' that the parties negotiated and acted upon must be determined first.

The appeal therefore raises two issues for determination:

1. Did the parties negotiate a retrenchment package in the manner dictated by the applicable law?; and

2. Did Arbitrator Manase have jurisdiction to determine the lawfulness, or otherwise, of the process that culminated in the package of benefits being paid to the respondent?

In his heads of argument, the respondent, correctly, outlines the retrenchment procedure then applicable as follows:

“Thus, in case of agreement and forwarding of the agreement to the Retrenchment Board, the effective date of retrenchment would more or less coincide with the date of the final award…,. However, if there was no agreement within one month, the provisions of s3(8) of S.I.186 of 2003 would kick in, with the dispute to be resolved in terms of s12(C) of the Act. That is assessment of the matter by the Retrenchment Board and its recommendations to the Minister and finally the approval of the retrenchment package by the Minister, subject to any modifications she or he may make in terms of s12(C)(9) of the Act. Until then, the employees remain employees of the employer and entitled to their salaries and benefits.”

It is not in dispute that this process is not what the parties in casu engaged in.

As indicated above, the genesis of the dispute was a letter written to the respondent, in June 2007, informing him of a restructuring exercise within the appellant and the abolishment of his post. Thereafter, the parties engaged in a process that they termed 'retrenchment' and in terms of which a package of benefits payable to the respondent was negotiated. When a dispute arose as to the total package due to the respondent, the parties, by agreement, referred the matter to Arbitrator Bvumbe, whose terms of reference have been set out above. According to the respondent's own outline of the correct process to follow in the event of a retrenchment, this was the stage at which the parties would have referred the matter to the Retrenchment Board.

They chose not to do so.

Arbitrator Bvumbe prefixed his award with the following comment:

“On this occasion (5 April 2008, the date of referral of the matter to him) the parties endorsed the referral to me as a single arbitrator. They also agreed on the terms of reference which were to be considered for the finalisation of the dispute between the parties, which were...,. The parties concurred that the effective date of retrenchment would be the date of the arbitration award.”...,.

This statement by the arbitrator significantly refers to 'finalisation of the dispute' between the parties. This suggests, clearly, that neither side contemplated engaging in the retrenchment process alluded to above. Their intention was to have the dispute relating to the benefits on which agreement had not been reached finally determined by Arbitrator Bvumbe.

That this was the parties' clear intention is borne out by their subsequent conduct. Firstly, following Arbitrator Bvumbe's award, dated 24 October 2008, the appellant, on 30 March 2009, addressed a letter to the respondent's legal practitioners to the following effect:

“Re: Retrenchment Package

The above matter refers:

Please find attached to this letter the Retrenchment offer for your client, Itayi, for his signature. May we have your response as a matter of urgency so that we put this matter to rest.“...,.

This letter, as is evident, reinforced the intention to have the dispute resolved in terms of the arbitral award of Mr Bvumbe.

Secondly, the respondent accepted the offer on 24 June 2009, in a letter (the letter erroneously states that the offer letter was received on 24 June 2009 when the legal practitioners' date stamp on the latter document clearly indicates it was received on 30^th March 2009) written on his behalf by his legal practitioners. The letter, in relevant part, read as follows:

“We write to advise that our client has since accepted the retrenchment package by signing the letter. We attach herewith a signed copy of your offer from our client for immediate processing, without prejudice...,. Payment should be processed and deposited in our client's account by 30 June 2009, failure which (sic) interest and damages shall be raised against Zesa Holdings in terms of the law. We are also instructed to remind you to immediately communicate our client's termination of employment on 31 March 2009 to his pension managers in order to facilitate immediate pension payments from two pension funds...,.”...,.

The content and tone of this acceptance letter by the respondent, in my view, admits of no doubt as to the intention by him, as much as by the appellant, to bring finality to the dispute in this manner. This is regardless of some indications in the letter that the respondent had signed the 'retrenchment' package on a 'without prejudice basis'. This would, in any case, not have changed the character and effect of the agreement, for that is not capable of being concluded on a “without prejudice” basis.

See Yakub Mahomed v John Arnold Bredenkamp HH130-16 where it was held as follows;

“I also find persuasive the submission made on behalf of the plaintiff that an agreement cannot be without prejudice or privileged - only the negotiations can…,.”

It is also significant that the only recourse that the respondent, at that point, contemplated in the event of the appellant's failure to pay the package in question, was to sue the latter for 'interest and damages'. Sight must also not be lost of the fact that the respondent accepted the termination of his employment and expected immediate notification thereof to his two Pension Funds.

Finally, it is not in dispute that the appellant, thereafter, paid, and the respondent received, the package that the parties had signed for.

Against this background, I have no doubt in my mind that the process engaged in by the parties, as outlined above, clearly speaks to:

(i) Negotiations for a package to be paid to the respondent following the abolition of his employment post with the appellant;

(ii) Agreed referral for final resolution of the dispute to Arbitrator Bvumbe;

(iii) An offer made by the appellant to the respondent of a package worked out in terms of the arbitral award;

(iv) Acceptance, in clear terms, of the offer, by the respondent; and

(v) Implementation of the agreement through release of the relevant benefits into the respondent's bank account.

The issues listed above bear all the hallmarks of a contract negotiated, signed, and perfected.

Despite the parties' loose usage of the term 'retrenchment' package, I am satisfied that the parties negotiated for, and signed, an agreement for the termination of the respondent's employment with the appellant. The agreement was entered into between two consenting parties and was signed freely and voluntarily. It was a contract like any other contract and can, therefore, not be said to be unlawful, as the respondent now seeks to argue.

Accordingly, I find that the parties neither contemplated nor engaged in a retrenchment process as outlined in the relevant law.

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

The definition of retrenchment, as set out in the Labour Act, is as follows: “Retrench, in relation to an employee, means terminate the employee's employment contract for the purpose of reducing expenditure or costs, adapting to technological change, re-organising the undertaking in which the employee is employed, or for similar reasons, and includes the termination of employment on ...

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

This is an appeal against the judgment of the Labour Court dismissing an appeal and review application instituted by the appellant against a decision of the Retrenchment Board (the Board). The decision was communicated to the parties on 28 April 2017. Background The respondents were employed by the appellant in various capacities. Their contracts were terminated on three ...

Background

The respondents were employed by the appellant in various capacities. Their contracts were terminated on three months' notice in November 2015 without the payment of any terminal benefits. They lodged a complaint with the Ministry of Labour on 6 September 2016. The parties filed their submissions before a labour officer and the matter was set down for hearing on 21 February 2017. On that date, the appellant applied for the hearing to be rolled over to 7 March 2017. This request was granted. In the intervening period, at some stage before the end of February 2017, the appellant filed an application with the Board for an exemption from having to pay the minimum retrenchment packages stipulated by statute.

On 3 March 2017, the Retrenchment Board (the Board) called the parties to notify them that the matter had been set down for hearing on 9 March 2017. The hearing was conducted as scheduled on that day and the Board then directed the parties to file further submissions. That directive was duly complied with by the respondents on 15 March 2017 and by the appellant on 16 March 2017. The Board made its determination on 30 March 2017 but only communicated that decision to the parties on 28 April 2017. It ordered the appellant to pay to each respondent the equivalent of one month's salary for every two years served. Half of the respective amounts due was to be paid by 30 April 2017 while the remainder was to be paid over six months from May to October 2017.

The appellant then noted an appeal and an application for review to the Labour Court. The court found in favour of the respondents which prompted the present appeal.

Labour Court Judgment

As regards the substance of the Retrenchment Board's determination, the court a quo noted that the appellant had previously applied to retrench some of its workforce. At that time, in June 2015, there was a letter from the Chairman of the appellant's Works Council intimating that the proposed retrenchment was due to a change in the appellant's business model and strategy. The issue of its financial incapacity was only raised in 2017.

The court a quo further noted that the appellant's audited financial statements that were on record only went up to 31 December 2013. Moreover, its un-audited financial statements for 2014, 2015 and 2016 were not on record. Thus, when the Board sat on 30 March 2017 to decide the application for exemption, the appellant's financial position was not known. In those circumstances, the appellant, having failed to demonstrate its inability to pay the retrenchment packages as at the time when it applied for exemption, the Board's determination could not be faulted as having been grossly unreasonable.

The court a quo also rejected the appellant's argument that its application for exemption must be deemed to have been granted by operation of law, in terms of section 12C(3) of the Labour Act [Chapter 28:01] because the Board had failed to respond to the application within 14 days after it was lodged. The court found that the provision did not require the Board to determine the application within 14 days. What was required was that the Board should respond to the application within that period and it had effectively done so by calling the parties on 3 March 2017 to appear for a hearing on 9 March 2017.

The final issue raised before the court a quo was an attack against the Board for having awarded packages based on a provision contrary to the Constitution of Zimbabwe. Since this aspect was not elaborated by the appellant in its heads of argument or oral submissions before the court, it was considered as having been abandoned. In the event, the court dismissed with costs both the appeal and the review application before it for lack of merit.

Grounds of Appeal

The first ground of appeal challenges the constitutionality of the provision introduced by the Labour Amendment Act No.5 of 2015 stipulating the retrospective payment of minimum retrenchment packages to employees who were dismissed on notice.

At the hearing of the appeal, counsel for the appellant conceded that this ground could not be persisted with in light of the decision of the Constitutional Court in Greatermans Stores (1979) (Pvt) Ltd & Ors v Minister of Labour CC02-18. She quite correctly agreed to abandon this ground.

The second ground of appeal relates to the argument that the appellant's application for exemption must be deemed to have been granted by operation of law because the Retrenchment Board's response was made more than 14 days after receiving the request for exemption. This ground hinges on the correct interpretation of section 12C(3) and related provisions of the Labour Act.

The third and fourth grounds of appeal are intimately inter-related and will be treated and dealt with accordingly. They pertain to the appellant's financial capacity to pay the minimum retrenchment packages. In essence, the appellant's position is that it placed authentic evidence before the Retrenchment Board to demonstrate its financial incapacity and that the Board, without demanding further proof in that regard, made a determination that was grossly unreasonable in light of all the evidence placed before it.

Deemed Grant of Exemption by Operation of Law

Section 12C of the Labour Act, which was introduced by section 5 of the Labour Amendment Act No.5 of 2015, regulates the process of retrenchment and compensation for loss of employment on retrenchment or in terms of section 12(4a), i.e. upon termination on notice. In subsections (3) and (4), which are relevant for present purposes, it states as follows:

“(3) Where an employer alleges financial incapacity and consequent inability to pay the minimum retrenchment package timeously or at all, the employer shall apply in writing to be exempted from paying the full minimum retrenchment package or any part of it to -

(a) The employment council established for the undertaking or industry; or

(b) If there is no employment council for the undertaking concerned, to the Retrenchment Board; which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted).

(4) In considering its response to a request for exemption in terms of subsection (3) the employment council or Retrenchment Board -

(a) Shall, where the employer alleges complete inability to pay the minimum retrenchment package, be entitled to demand and receive such proof as it considers requisite to satisfy itself that the employer is so unable, and, if so unable on the date when the notice of termination of employment takes effect, may propose to the employer a scheme to pay the minimum retrenchment package by instalments over a period of time;

(b) Shall, where the employer offers to pay the minimum retrenchment package by instalments over a period of time, consider whether the offer is a reasonable one, and may propose an alternative payment schedule;

(c) May inquire from the employer whether he or she has considered, or may wish to consider, specifically or in general, the alternatives to termination of employment provided for in section 12D.”

The crisp issue for determination in casu, as I perceive it, is this: Do the words 'respond' and 'response', as used in section 12C(3) as read with section 12C(4) of the Labour Act, mean “definitively decide or determine” within the prescribed period of 14 days, or do they mean something entirely different in keeping with the ordinary usage of those words?

Counsel for the appellant submits that to respond, in the context of section 12C, is to give a final answer or determination. The intention is to ensure that every application for exemption is determined expeditiously. Section 12C(4) highlights the factors that have to be considered before delivering a response, i.e. a final determination under section 12C(3).

The language of the latter provision is peremptory and the courts cannot allow any extension of the stipulated 14 day period.

In the instant case, the final determination was made well beyond that period, and, therefore, the exemption sought by the appellant must be deemed to have been granted by operation of law.

Counsel for the respondents submits that the ordinary meaning of respond is that the Board must communicate its receipt of the application for exemption.

Section 12C(4) allows the Board to demand further proof and consider other matters. It is clear that a response means something other than a final determination. In any event, a 14-day period is simply not enough for all the necessary processes and decisions to be concluded.

Counsel for the respondents also notes that the appellant responded on 16 March 2017 to the Board's directive for further submissions to be made. The appellant thereby accepted that the directive complied with the law. If it believed that its application had been granted, it ought to have protested and refused to comply with the directive. Furthermore, the appellant itself delayed its submissions to the Board, and, therefore, cannot complain that the Board failed to comply with the law.

The word 'respond', in its ordinary connotation, means “to say or do something as a reaction to something that has been said or done” (per the Cambridge English Dictionary). The word clearly does not denote anything akin to a final or definitive decision on anything raised by one person for a response to be given by another. Rather, it signifies an exchange of words or conduct between one or more individuals.

In the present context, the ordinary meaning of 'respond' necessitates that the Retrenchment Board should react to an application for exemption within 14 days.

In considering its response, the Board is vested with the power to demand and receive such proof as it considers requisite to satisfy itself that the employer concerned is completely unable to pay the minimum retrenchment package. It is also entitled to propose a scheme to pay the package by instalments or an alternative payment schedule and to request the employer to consider other available alternatives to termination of employment.

My reading of section 12C(4) is that it provides a guiding template for the Board in considering its response to an application for exemption. In my view, it does not, as is contended on behalf of the appellant, operate to transmute the ordinary meaning of 'respond' into one necessitating that the Retrenchment Board make a final and definitive determination within 14 days.

It is trite that the words used in any statutory enactment must be given their plain and grammatical signification, unless to do so would lead to some manifest absurdity, inconsistency, or repugnancy.

The interpretation of sections 12C(3) and 12C(4) that I am inclined to adopt is entirely concordant with the plain meaning of the words 'respond' and 'response' as used in those provisions. It certainly does not entail any absurd, inconsistent or repugnant eventuality or outcome.

On the other hand, the interpretation advanced on behalf of the appellant would lead to several possible absurdities and anomalies.

First and foremost, it would require the Retrenchment Board to analyze and evaluate all the relevant facts and figures pertaining to the solvency of the employer and the relevant records of the employees affected within a very short span of two weeks. Secondly, the employer himself would be constrained to provide the requisite proof of its inability to pay, if such is demanded by the Board, and may well fail to do so to the satisfaction of the Board within that short period. By the same token, he would certainly need more than two weeks to meaningfully consider and react to any alternative payment scheme or schedule or possible alternatives to termination of employment that might be proposed by the Board.

In the final analysis, I take the view that the legislature could not possibly have intended that the complex processes enjoined in the orderly and equitable implementation of section 12C should be concluded and finalised within the limited time frame of only 14 days. To obligate both the Board and the employer concerned to make hurried and ill-considered choices and decisions would certainly not serve the interests of justice at the workplace as contemplated by section 2A of the Labour Act. As I have already indicated, a liberal and expansive interpretation of section 12C is in the best interests not only of the employees but also of the employer.

To conclude on this aspect, it is common cause that the Retrenchment Board called the parties within the prescribed period of 14 days to convene a hearing, which hearing also appears to have taken place within that period. It is also common cause that at that hearing the Board, as it was entitled to do, directed the parties to file further submissions. It follows that the Board duly complied with its obligation to respond to the appellant's application for exemption within the stipulated 14 days. It also follows that the application cannot be deemed to have been granted by operation of law by dint of any alleged failure to timeously respond to the application.

Evidence of Financial Incapacity

The evidence presented by the appellant to the Retrenchment Board to establish its incapacity to pay the respondents comprises two CBZ Bank statements and its financial statements from 2009–2015. However, the appellant's audited financial statements only go up to 31 December 2013. For the period thereafter, only unaudited financial statements were produced - apparently because the appellant had failed to pay its erstwhile auditors. Moreover, before the Labour Court, even the un-audited financial statements were not produced or filed of record.

As regards the appellant's bank statements, the first statement covers the period from 1 December 2016 to 3 January 2017 and reflects a negative balance of $1,045,267=83. The second statement ranges from 1 December 2016 to 31 January 2017 and shows a negative closing balance of $6,960=61. According to counsel for the appellant, the appellant claims that these statements relate to its only two bank accounts and this claim has not been disputed.

Turning to the appellant's financial statements, the last audited statement for 2013 reveals an operating loss of $5,720,825=. It also shows a bank overdraft of $6,838,990=. For the period thereafter, i.e. from 2014–2016, there are no audited financial statements. In this respect, counsel for the appellant contends that the Retrenchment Board did not ask for audited statements and that it was reasonable for the appellant to provide what it had. The unaudited statements for 2014–2016 were placed before the Board but were rejected for having been un-audited. As I have already indicated, these unaudited statements do not form part of the record and counsel for the appellant was unable to proffer any explanation for their omission from the record.

Counsel for the respondents submits that the CBZ Bank statements do not show the aggregate of the appellant's assets. Furthermore, the first statement alluded to above shows several substantial credits to the bank account and there may have been further credits after the last stated entry for 31 December 2016. Counsel for the respondents also refers to a letter dated 3 June 2015 from the Chairman of the appellant's Works Council, written to the Retrenchment Board, in support of the proposed retrenchment of 18 employees. The reason given then for that retrenchment was stated to be the fact that the appellant “has totally changed its Business Strategy and Operating Model”. There is nothing in that letter to indicate that the appellant was unable, at that time, to pay the proposed retrenchment packages or to viably conduct its financial affairs.

Having regard to the totality of the evidence before us, it is abundantly clear from the record that the appellant has dismally failed to justify its claim of its incapacity to pay, both before the Retrenchment Board and in the Labour Court. This is compounded by the fact that even its unaudited financial statements for 2014 to 2016 were not availed to the court a quo. Worse still, they inexplicably do not form part of the appeal record.

I fully agree with counsel for the respondents that the two CBZ Bank statements do not in themselves support the appellant's position. At best, they evince a temporary current account illiquidity. More telling is the last available audited financial statement for 2013. Although this statement reflects a significant operating loss and large bank overdraft, it also reveals a substantial asset base vested in the appellant. This consists of non-current assets amounting to $131,265,466= and current assets in the sum of $14,696,626=, rendering a grand total of $145,962,092=. This is obviously counter-balanced, as a matter of accounting practice, by the appellant's equity and liabilities, but that does not detract from the appellant's considerable and sizeable assets as at the end of 2013. And there is nothing on record to indicate that those assets have been depleted or dissipated in the intervening period leading up to the events of 2017.

The onus clearly lay on the appellant to show that it should be exempted from paying the minimum retrenchment packages due to the respondents. As I have already stated, it failed to produce any meaningful evidence to substantiate its claim of insolvency or incapacity to pay the paltry sum of $55,000= that was ordered by the Retrenchment Board to be paid, partly as lump sums and partly by way of instalments. It clearly failed to discharge the evidential onus that squarely fell upon it.

Disposition

In the result, I am amply satisfied that there was nothing erroneous let alone irrational in the decision of the Retrenchment Board declining to grant the exemption sought by the appellant from having to pay the respondents the minimum retrenchment packages to which they were lawfully entitled. By the same token, there is no basis for impugning the judgement of the court a quo upholding the decision of the Retrenchment Board. In my view, none of the grounds of appeal mounted by the appellant is legally or factually sustainable.

It is accordingly ordered that the appeal be and is hereby dismissed with costs.

CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

Section 12C of the Labour Act [Chapter 28:01] was repealed and substituted as follows: “12C Retrenchment and compensation for loss of employment on retrenchment or in terms of section 12(4a) (1) An employer who wishes to retrench any one or more employees shall - (a) Give written notice of his or her intention - (i) To the works council established for ...

Section 12C of the Labour Act [Chapter 28:01] was repealed and substituted as follows:

“12C Retrenchment and compensation for loss of employment on retrenchment or in terms of section 12(4a)

(1) An employer who wishes to retrench any one or more employees shall -

(a) Give written notice of his or her intention -

(i) To the works council established for the undertaking; or

(ii) If there is no works council established for the undertaking or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; or

(iii) If there is no works council or employment council for the undertaking concerned, to the Retrenchment Board, and, in such event, any reference in this section to the performance of functions by a works council or employment council shall be construed as a reference to the Retrenchment Board or a person appointed by the Board to perform such functions on its behalf; and

(b) Provide the works council, employment council or the Retrenchment Board, as the case may be, with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment; and

(2) Unless better terms are agreed between the employer and employees concerned or their representatives, a package (hereinafter called 'the minimum retrenchment package') of not less than one month's salary or wages for every two years of service as an employee (or the equivalent lesser proportion of one month's salary or wages for a lesser period of service) shall be paid by the employer as compensation for loss of employment (whether the loss of employment is occasioned by retrenchment or by virtue of termination of employment pursuant to section 12(4a)(a),(b) or (c)), no later than the date when the notice of termination of employment takes effect.

(3) Where an employer alleges financial incapacity and consequent inability to pay the minimum retrenchment package timeously, or at all, the employer shall apply, in writing, to be exempted from paying the full minimum retrenchment package or any part of it to -

(a) The employment council established for the undertaking or industry; or

(b) If there is no employment council for the undertaking concerned, to the Retrenchment Board:

which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted).

(4) In considering its response to a request for exemption in terms of subsection (3) the employment council or Retrenchment Board –

(c) May inquire from the employer whether he or she has considered, or may wish to consider, specifically or in general, the alternatives to termination of employment provided for in section 12D.”…,.

It is a recognised principle of labour relations reflective of social justice that when employment is terminated, for reasons other than misconduct, compensation for long service rendered is paid. Payment of a severance package based on length of service to an employee whose contract was terminated for a reason other than misconduct has always been viewed as a means of ensuring that the employee has a soft and safe landing after losing employment.

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

The plaintiff issued summons on 25 March 2011 for the payment of a sum of USD$8,936=56, being the balance due to him from the defendant in terms of an agreed early retirement package. The defendant adopted the stance that it had paid all the amounts due to the plaintiff in terms of the parties' agreement. The issue ...

The plaintiff issued summons on 25 March 2011 for the payment of a sum of USD$8,936=56, being the balance due to him from the defendant in terms of an agreed early retirement package.

The defendant adopted the stance that it had paid all the amounts due to the plaintiff in terms of the parties' agreement.

The issue that the court must determine is whether the amounts paid to the plaintiff by the defendant for October, November and December 2010 constituted notice pay in terms of the early retirement package; and whether the additional payment of cash in lieu of leave and other benefits paid during October -December 2010 also formed part of the early retirement package. If they did not, then the plaintiff's claim must succeed....,.

From the evidence adduced during the trial, the pleadings, and the documentary evidence submitted to the court, the following facts are common cause;

The plaintiff is a former employee of the defendant who requested that he be given an early retirement package, three months before the date on which he was due to reach retirement age. In October 2010, in response to the plaintiff's request, a retirement package was negotiated between the parties. It was agreed that the plaintiff would be paid a sum of USD$25,873=12 by 31 December 2010.

On 5 October 2010, the parties signed an agreement which was titled 'Innocent Chitiki: Early Retirement Package'. Under 'statutory benefits', the plaintiff was to be paid a total of USD$11,148=, which was made up of three (3) units of notice pay, cash in lieu of leave, leave bonus, housing benefits during notice plus one month up to 31 October, full benefits except business allowances during notice period, telephone allowances. 'Other' benefits totaling USD14,725=12 included a vehicle, annual bonus, fuel up to one month after notice, Term 1 school fees, service pay, and additional gratuities such as relocation to Gokwe rural home at the defendant's expense.

It is common cause that it was part of the early retirement package that; all salaries and monthly benefits were to be paid as and when due up to 31 December 2010; all other benefits were to be paid in December 2010; the vehicle was to be released immediately.

It is common cause that the defendant was told to stay at home during the notice period and that the fact that he was not required to report for duty was the defendant's standard practice for retiring employees who worked in sensitive areas that were vulnerable to security breaches.

It is common cause that the plaintiff wrote a letter to the defendant asking for payment of his package to be deferred until after 31 December 2010, the date when he officially reached retirement age, in order to avoid incurring punitive tax obligations. It is common cause that the plaintiff initially wanted to be paid a package of USD$50,000= and that he felt shortchanged by the final sum of the negotiated package.

The plaintiff's claim appears to be premised on the supposition that he ought to have been paid notice pay as well as his monthly salary and benefits for the three month notice period during which he did not report for duty at the defendant's specific instance and request. The plaintiff understood that he would be paid the 'full package' on 31 December 2010. The monthly salary that he received in September, October, and November 2010 was not part of his three month notice pay, in his view.

Is this claim supported by the evidence or by the agreement between the parties? If it is, the plaintiff is entitled to be paid the sum of USD$8,936=56 which he is claiming from the defendant.

The plaintiff told the court that his contract of employment with the defendant terminated on 31 December 2010 and that the payments made to him prior to that were his normal monthly salaries and benefits and did not form part of the retirement package.

This evidence was directly controverted by the evidence of the two defence witnesses, Cindirella Masimbe and Effort Lungu.

The defendant's witnesses told the court that it was the defendant's policy to pay cash in lieu of service of the notice period especially for senior executives, such as the plaintiff, who worked in sensitive positions. They explained the payments made to the plaintiff in terms of exhibit 7, the gross amounts, and the net amounts paid. Their evidence was that the plaintiff was paid a slight excess of the agreed sum in the early retirement package.

Mr. Lungu was emphatic that the entire retirement package was reduced to writing and signed on the 5^th of October 2010, and pointed to the notes on exhibit 7 which clearly stated that; “…, all elements that were outstanding from previous meetings have been resolved and agreed…,.;” and “…, all salaries and monthly benefits to be paid as and when due up to 31 December 2010.”…,. This referred to the notice pay, which, according to the defendant, was to be paid in monthly installments to avoid the punitive tax regime prejudicing the plaintiff who only attained the retirement age in December 2010.

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but if the probabilities are equal it is not.”

See Milner v Minister of Pensions1947 2 All ER 372…,. and Thulisani Dube Nyamambi v Bongani Ncube HB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC), the court said that:

“…, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book SA Law of Evidence, 4ed…,state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.”

In JOUBERT, The Law of South Africa, vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.”

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's or vice versa. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said and did while they were in the witness stand.

The plaintiff did not come across as a person who deliberately set out to mislead the court. What was clear was that he felt that the defendant had misled him into accepting less money than what was due to him, what he was entitled to, and what he wanted - which was USD$50,000=. What was equally clear was that the plaintiff was under the mistaken impression that the word 'package' referred to a lump sum - one off payment.

Operating under that misapprehension, he happily accepted the equivalent of his monthly salary for September - December 2010, while carefully planning how he would spend his 'package' once he got to his rural home in Gokwe. He suffered a rude awakening when he was paid his 'package' less three months cash in lieu of notice.

He was angry and confused.

The defendant told him that because he did not report for duty during those three months he was not entitled to a monthly salary, only cash in lieu of notice – but, it was the defendant's policy not to allow senior executives to report for duty during the notice period.

The defendant may have been crafty, or devious, in its negotiations with the plaintiff. But, if the unwittingly plaintiff agreed to be short-changed, is it our place, in these proceedings, to make that right when he agreed and signed for what he believed he was entitled to?

The evidence supports the fact that the plaintiff asked the defendant to defer payment of his package until January 2011 after he had reached the official retirement age to avoid paying punitive tax. There is no evidence that the parties agreed that the 'full package' would be paid in January 2011. The payment plan which appears on page 9 of exhibit 7 supports the contention made on behalf of the defendant that the cash in lieu of notice pay and the cash in lieu of leave were to be paid to the plaintiff on a monthly basis in October, November and December 2010. Although in terms of exhibit 1 the plaintiff made it clear that it was his intention to serve notice from October – December 2011, in reality that is not what transpired. The plaintiff did not report for duty during that period. He was aware of the defendant's policy. His evidence that other senior executives who did not report for duty during the notice period were paid their full salaries as well as cash in lieu of notice was bald, and unsubstantiated.

There is no evidence that the parties agreed that the whole package would be paid in December 2011 when the early retirement agreement itself contains contrary evidence.

The plaintiff failed to discharge the onus on him to prove his case on a balance of probabilities.

The probabilities raised by the evidence, coupled with the facts which are common cause, do not support the plaintiff's version of events and do not entitle him to the relief that he seeks. On the contrary, the probabilities support the defendant's version especially on the crucial point of whether there was ever any agreement between the parties that the package be paid as a whole at the end of January 2011 and whether the plaintiff had been given assurances that, despite not being required to report for duty, he would be paid his normal salaries and benefits until December.

For these reasons, the plaintiff's claim is dismissed with costs.

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE
Ruled By: MATHONSI J

The procedure for retrenchment of employees is provided for in section 12C of the Labour Act. Section 13 provides: “Wages and benefits upon termination of employment (1) Subject to this Act or any regulations made in terms of this Act, where any person - (a) Is dismissed from employment or his employment is otherwise terminated; or (b) Resigns from his employment; or (c) Is ...

The procedure for retrenchment of employees is provided for in section 12C of the Labour Act. Section 13 provides:

“Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, where any person -

(a) Is dismissed from employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacity or death, as the case may be, including benefits in respect of any outstanding vacation and notice period, medical aid, social security and any pension and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.

(1a) Wages and benefits payable to any person or to his or her estate in terms of this section shall not form part of or be construed as a retrenchment package which an employee is entitled to where his or her employment has been terminated as a result of retrenchment in terms of section 12C.

(2) Any employer who, without the Minister's permission, withholds or unreasonably delays the payment of any wages or benefits owed in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or both such imprisonment.”...,.

Section 8(e)(iv) of the Labour Act,.., provides that an employer commits an unfair labour practice if he fails to comply with a determination or direction which is binding upon him in terms of the Labour Act.

It is clear that a retrenchment package is provided for in the Labour Act. It is an entitlement of an employee whose employment is terminated in terms of section 12C of the Labour Act. Where an employer does not pay a retrenchment package or delays making payment, an employee has a remedy - including criminal sanction. Indeed, failure to pay constitutes an unfair labour practice. There are remedies available for unfair labour practices.

View Appeal
HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The procedure set out in section 12C of the Labour Act [Chapter 28:01], for retrenchment, is that the employer who wishes to retrench more than four (4) people, must, within six months, give written notice of its intention to the Works Council for the undertaking, and, in its absence, to an Employment Council, and, in its absence, to the Retrenchment Board. The employer is enjoined to provide the names of the employees and reasons for the proposed retrenchment to the Council or Board where the notice is given….,.

Section 12C(ii) of the Labour Act, in my view, appears to allow the majority of the employees, by agreement, to supersede referrals to other Councils. The Retrenchment Board is certainly permitted to perform the functions of these Councils.

Section 12C(2)(3) and (4) provide the reason for referrals to the Councils. It is to secure agreement between the employer and employees on the need to retrench and the conditions for such retrenchment. The overall duty of the Retrenchment Board is to recommend to the Minister whether to approve or reject the retrenchment. The Minister, in terms of section 12(9), then approves or rejects the retrenchment exercise….,.

Section 2 of the Labour Act defines the word retrench, in relation to an employee, as follows:

“'Retrench', in relation to an employee, means terminate the employee's employment for the purpose of reducing expenditure or costs, adapting to technological change, re-organising the undertaking in which the employee is employed, or for similar reasons, and includes the termination of employment on account of the closure of the enterprise in which the employee is employed;”…,.

Paragraph 4(p) of the Third Schedule to the Income Tax Act [Chapter 23:06]…, exempts from income tax:

“An amount accruing by way of the first US$5,000, or one third, whichever is the greater of the amount of any severance pay, gratuity or similar benefit, other than a pension or cash in lieu of leave, which is paid to an employee on the cessation of his or her employment, where his or her employment has ceased due to retrenchment under a scheme approved by the Minister responsible for Labour or the Public Service:
Provided that the exemption provided in this subparagraph shall apply only in respect of the first forty-five thousand United States dollars of any such pay, gratuity or benefit payable to him in any one year of assessment.”

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

This is an appeal against part of the judgment of the Labour Court setting aside an arbitral award in terms of which the respondent was ordered to pay the appellant the sum of US$17,500.THE BACKGROUNDThe appellant was employed by the respondent as a Secretary General. On 2 June 2012, the ...

This is an appeal against part of the judgment of the Labour Court setting aside an arbitral award in terms of which the respondent was ordered to pay the appellant the sum of US$17,500.

THE BACKGROUND

The appellant was employed by the respondent as a Secretary General. On 2 June 2012, the National Governing Council (the Council) of the respondent held a meeting in which Council members expressed concerns regarding the performance, by the appellant, of her work. As a result, it was recommended that the appellant be suspended from work pending investigations into her conduct, or, alternatively, that she be given the option to resign.

The appellant elected to resign and did so by letter dated 3 June 2012.

On the same date the resignation was acknowledged, in writing, by the respondent's Acting President. The following was set out in the letter;

“The Board resolved that in the event of you resigning, instead of a suspension with pay, that you will be entitled to all your benefits. Outlined hereunder are all your benefits; Leave days accrued; Gratuity One month's notice salary; Toyota Prado registration number ABH3278 that you have been using; Phone handset; Laptop you are currently using.”

On 6 June 2012, the Honorary Treasurer of the respondent, one Mr Gotora, who was tasked with overseeing the handover takeover process between the appellant and the new office bearer, wrote a letter to the appellant stating that the respondent was to meet the costs related to the change of ownership of the vehicle.

As a result, the appellant made a claim of US$17,500, being the residual duty payable to ZIMRA upon the disposal of the vehicle by the respondent, that is, the cost of the change of ownership.

On 2 March 2013, the Council convened a meeting to deliberate on the appellant's claim.

Mr Gotora was reprimanded for generating the communication as he had no authority to do so. It was stated that considering the level of the employee in issue, communication was to be done by either the President or the Secretary General.

On 5 March 2013, Mr Gotora wrote a letter to the Acting President and copied same to the appellant, retracting the statement that he had made regarding the respondent meeting the change of ownership costs for the motor vehicle. He also conceded that he had acted without the mandate of the Board.

Following the retraction, the appellant referred the matter to a Labour Officer claiming the sum of US$17,500 from the respondent.

Conciliation failed and the matter was referred to an arbitrator who ordered the respondent to honour the undertaking made on its behalf by the Honorary Treasurer. The arbitrator held that the Honorary Treasurer's undertaking remained valid and binding on the respondent. He referred to the case of Royal British Bank v Turquand (1856) 6 E & B 327, ER 886 and reasoned that the appellant was not supposed to know the legitimacy of the undertaking made by the Honorary Treasurer on behalf of the respondent. As such, the Honorary Treasurer bound the respondent.

Aggrieved by the arbitral award, the respondent appealed to the Labour Court.

It challenged the decision of the arbitrator on the basis that the communication in issue had been made without the approval of the Board, and that, in any event, the communication had been retracted and could not be given effect to. The respondent further argued that there was no basis for the arbitrator to rely on the letter by Mr Gotora as it could not give benefits not outlined in the initial letter by the Acting President wherein all the benefits due to the appellant had been expressly stipulated. Further to that, the practice was that employees who received such a benefit would meet their own costs of transfer.

The respondent also expressed the view that the Turquand Rule was inapplicable because the appellant knew or ought to have reasonably known that the Honorary Treasurer was not an executive member and could not make binding decisions on behalf of the respondent.

The respondent also averred that, should the amount be due, it was payable to the Commissioner or ZIMRA and not to the appellant.

The respondent also contended that the arbitrator had cast upon it an obligation cast by law on a transferee of property.

The appellant opposed the appeal.

She contended that the respondent sought to interfere with the findings of fact made by the arbitrator. She argued that the arbitrator correctly found that the undertaking was never retracted and remained valid. The appellant further contended that the undertaking to pay the transfer costs was an employment benefit, and, as such, arguments on the law of transfer or taxation were irrelevant.

DETERMINATION OF THE COURT A QUO

The court a quo found that the appellant was not entitled to the transfer costs of the motor vehicle. It held that the communication by the Honorary Treasurer could not bind the respondent. It found that the turquand rule was in-applicable and neither could it be said that Mr Gotora had ostensible authority to bind the respondent.

The court reasoned that the appellant was not some innocent third party but occupied the highest post in the respondent and was aware or ought to have been aware of the authoritative communications in the organisation.

The court further explained that even if it was to be assumed that Mr Gotora was acting under delegated authority, there was no evidence of such delegation.

In any event, Mr Gotora had also confirmed that he had made the communication without the required authority.

The court also noted that the letter of 3 June 2012, by the Acting President, which set out all the benefits the appellant was to get, made no mention of transfer costs. As such, Mr Gotora's letter could not be read to vary or supplement the package already offered to the respondent by the Board and properly transmitted to the respondent by the Acting President.

The court further held that the transfer costs were payable to the Zimbabwe Revenue Authority and not the respondent.

It also found that there was no law that precluded parties to deviate from the provisions of the Customs and Excise Act [Chapter 23:02] by paying another's transfer costs since what the law requires is that the transfer costs be paid.

The appellant, dissatisfied with the outcome, launched the present appeal based on the following grounds:

GROUNDS OF APPEAL

1. That the court a quo erred in granting the respondent's appeal as regards the award of US$17,500 and thus upsetting, without legal basis, the arbitrator's factual finding that the evidence furnished by the respondent to prove the Treasurer's lack of authority was stage-managed.

2. That the court a quo grossly erred in interfering with the arbitrators discretion to award the appellant US$17,500 as evidence placed before him showed that there was never any valid retraction on the respondent's commitment to pay the US$17,500.

3. That the court a quo grossly erred in granting the respondent's appeal with respect to award of US$17,500 as the finding by the arbitrator that the undertaking to meet the costs of transfer was validly made cannot be faulted given that the respondent accepted provisions in the letter of undertaking by the Honorary Treasurer.

4. That the court a quo grossly erred in granting the respondent's appeal with respect to the award of US$17,500 as it erroneously made a finding that the mention of ZINARA cost instead of transfer costs in the letter of retraction by the Honorary Treasurer was an error by the respondent when no such evidence of a mistake or error was alleged or argued before it by the respondent or any of the parties.

5. That the court a quo erred by making a finding that the US$17,500 should have been paid to the Zimbabwe Revenue Authority and not to the appellant when such issue was not properly before the court a quo in terms of the grounds of appeal that were before it, and, when such issue did not affect the appellant's eventual entitlement to the benefit.

SUBMISSIONS IN THIS COURT

I now turn to the arguments of the parties on the merits.

Counsel for the appellant made the following submissions;

The court a quo dealt with the matter afresh and re-assessed the evidence and made its own determination. The court a quo, in setting aside the arbitral award, upset the arbitrator's factual findings. In particular, the arbitrator's finding that the treasurer had the authority to make the communication as the treasurer's lack of authority was stage-managed. The arbitrator's finding could only be upset on the basis of gross unreasonableness. Once the arbitrator held that the turquand rule applied in the circumstances of the matter, the court a quo was not at liberty to re-hear the matter but to assess whether the factual findings of the arbitrator were grossly unreasonable. This does not feature anywhere in the judgment of the court a quo.

In considering the turquand rule, the court a quo ignored one fundamental aspect - that the employer communicated through its Honorary Treasurer. Thereafter, the organisation was silent for a year. It then retracted the offer after a meeting where the appellant did not attend. The respondent allowed the appellant to have no doubt that the transfer costs would be met by the respondent. The turquand rule was designed to protect the appellant in the circumstances. The appellant was now an outsider on the basis of her resignation. Her ability to relate to the internal mechanism had been cut.

Counsel for the respondent, on the other hand, contended that there were no factual issues which arose in the appeal before the court a quo. She argued that the full list of benefits due to the appellant were approved by the Board and communicated by the Acting President. These benefits did not include transfer costs of the motor vehicle. She also contended that the court a quo properly identified the issue for consideration as to whether the turquand rule was applicable in the circumstances of the case. Counsel for the respondent further submitted that a person in the position of the appellant could not claim the benefits of the turquand rule since the appellant knew how the respondent was run. Had the benefits been revised, the Acting President, being the person who had communicated the benefits, was the one to communicate the change in those benefits.

ISSUES FOR DETERMINATION

From the grounds of appeal, and the submissions above, two issues fall for determination and these are;

1. Whether or not the court a quo's finding that the Honorary Treasurer lacked authority to make the undertaking unduly interfered with the arbitrator's factual findings.

2. Whether the undertaking made by the treasurer is binding on the respondent by virtue of the provisions of the turquand rule.

THE LAW

It is settled law that an Appellate Court can only interfere with the findings of fact made by a lower court in exceptional circumstances.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:

“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

In Susan Rich v Jack Rich SC16-01, EBRAHIM JA cited with approval the remarks in HOFFMAN and ZEFFERT, The South African Law of Evidence, 4th ed…, that:

“There are no rules of law which define circumstances in which a finding of fact may be reversed, but, as a matter of common sense, the Appellate Court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanor of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility.

The Appeal Court has rather more latitude in criticizing the reasons which the court a quo has given for its decision.

The reasons given for accepting certain evidence may be unsatisfactory, eg. they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, eg. a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact.

Where there has been no misdirection of fact by the trial court, the Appeal Court will only reverse it when it is convinced that it is wrong.”…,.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a mis-direction on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision; and, a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

In Zvokusekwa v Bikita Rural District Council SC44-15 this Court clarified this obvious but often misunderstood position. It said;

“[20] It is correct, as submitted by the appellant, that an appeal to this Court must be based on a point of law.

What constitutes a point of law has been stated and restated in a number of decisions of this Court. See for example Muzuva v Limited Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S); Hama v NRZ 1996 (1) ZLR 664; RBZ v Granger & Anor SC34-01.

[21] It is also correct that in RBZ v Granger & Anor (supra), this Court stated that if an appeal is to be related to the facts, 'there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who has applied his mind to the facts would have arrived at such a decision. And a mis-direction of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.'

[22] In my view, the remarks made in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form.

Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.

If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led, or was not supported by such evidence, such a ground cannot be said to be improper merely because the words 'there has been a misdirection on the facts which is so unreasonable that no sensible person…, would have arrived at such a decision' have not been added thereto.

If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective. After all, there is no magic in the above stated phrase and very often the words are simply regurgitated without any issue of law being raised. See, for example the case of Sable Chemical Industries v David Peter Easterbrook SC18-10 where it was noted that the words 'erred on a question of law' are sometimes included in grounds of appeal but without any question of law actually being raised.”

See also Kukwenge v Clan Transport Co. 2001 (1) ZLR 199 (S) and Mutsuta and Another v Cagar (Pvt) Ltd 2009 (2) ZLR (S).

APPLICATION OF THE LAW TO THE FACTS

The court a quo properly identified the issue to be determined as follows:

“The issue that falls for determination in this appeal is whether the Honorary Treasurer of the appellant had ostensible authority to bind the appellant. In other words, the issue is whether the Turquand Rule applies in the circumstances of this matter.”

This was an issue of law which the court a quo dealt with based, as it is, on facts that are essentially common cause.

In light of the authorities cited above, one can conclude that failure to appreciate a fact at all or a finding of fact contrary to evidence actually presented constitutes a misdirection which warrants interference by an appellate body.

The arbitrator found that the treasurer had authority by virtue of occupation of that post; his attendance in meetings involving important decision making by the respondent; that the authority had been delegated to him by the Acting President; and that the letter of retraction was 'stage managed', as it came nine months after the initial letter, in anticipation of a civil suit.

These findings were not based on evidence presented before him but were based on suppositions.

The fact that someone occupies what he termed an important position in the organisation does not clothe that person with authority to make decisions on behalf on the organisation. No evidence was led to confirm that the Acting president had delegated his functions to the Honorary Treasurer. His finding regarding the letter of retraction is a clear indication that he did not appreciate that the respondent was run by a Board which met when the need arose.

It is my view that the arbitrator's findings, that the treasurer had authority, in light of the evidence presented before him, was a misdirection.

In making that finding, he completely ignored the fact that it was not in dispute that “all the benefits” due to the appellant upon her resignation were outlined by the Acting President in a letter dated 3 June 2012 as follows:

(i) Leave days accrued.

(ii) Gratuity.

(iii) One-month notice salary.

(iv) Toyota Prado that you have been using.

(v) Phone handset.

(vi) Laptop you are currently using.

It is apparent that the benefits did not include the costs of transfer.

It is also not in dispute that, the letter by which the Honorary Treasurer stated that the respondent was going to meet the cost relating to change of ownership of the motor vehicle awarded to her was not authorised. This emerged from the meeting of 2 March 2013. The Honorary Treasurer acknowledged that he had no authority to do so and took “full responsibility” of the mistake.

Once the statement was duly retracted, its validity and enforceability necessarily fell away.

The communication made by the Honorary Treasurer could not bind the respondent neither could it be enforced against it.

Further to that, no Board meeting was convened neither is there a resolution on record authorizing Mr Gotora to make the undertaking he made.

The subject matter of the communication being a significant financial undertaking by the respondent, it was obligatory for Mr Gotora to obtain the approval of the Board. Further to that, Mr Gotora's letter highlighted that the communication was a “follow up” on the Acting President's letter of 3 June 2013. There was no approval by the Board or the Acting President who had initially communicated to the appellant nor was there ratification after it had been made. He also rejected the established precedent, that the respondent did not pay for such costs, without any justification.

Accordingly, it is my view that the decision of the court a quo was well founded. The arbitrator's decision was a misdirection in that he made findings contrary to evidence actually presented.

WHETHER THE UNDERTAKING MADE BY THE TREASURER IS BINDING ON THE RESPONDENT BY VIRTUE OF THE PROVISIONS OF THE TURQUAND RULE

Having found that the undertaking by the Honorary Treasurer was not binding on the respondent, it is necessary to determine whether the turquand rule can aid the appellant's case.

I am of the view that it cannot.

The arbitrator invoked the principles of the turquand rule to show that the respondent was liable to pay the costs of transfer. It is also the appellant's argument that where a person is dealing with another, in fair dealing, the turquand rule should apply.

In Mills v Tanganda Tea Company Ltd HH12-13, which is almost on all fours with this case, in the following instructive dictum, it was stated…,;

“…,. I do not think that there is any basis for invoking ostensible authority in relation to Beaumont's actions. Firstly, the fact that he was the Group Chief Executive of Meikles Limited does not mean that he had the requisite ostensible authority, by virtue of that position, to negotiate and conclude severance packages on behalf of respondent. There is nothing in the papers to suggest that he normally exercised that function in that particular capacity…, the applicant was not some third party dealing with an agent or employee of the respondent. He was its Managing Director, and, given that position, I can see no justification for extending the doctrine of ostensible or apparent authority to the facts of this case.”

The turquand rule is a company law principle emanating from the old case of Royal British Bank v Turquand (1856) 6E & B327. Simply put, the rule states that where a person conducts the affairs of the company in a manner which appears to be perfectly consonant with the Articles of Association, those so dealing with him, externally, are not to be affected by irregularities which may exist in the internal management of the company.

The turquand rule was aptly captured in the case of Victoria Falls Steam Train Co (Pvt) Ltd v Wankie Colliery Co Ltd HH03-04, where the court stated the following:

“The rule in Royal British Bank v Turquand (1856) 6E & B327, 119 ER 886, which prevents a corporation from relying on non-compliance with its internal procedures to avoid contractual liabilities towards a third party, applies only where the third party was a genuine outsider acting in good faith, and where the transaction was carried out in good faith and was a legitimate one within the powers of the corporation though lacking completeness in terms of the corporation's internal arrangements.

The rule does not apply in cases where there has been a forgery, nor should it apply in the analogous case where the transaction has been carried out in deliberate violation of the internal procedures of the corporation.”…,.

H.S CILLIERS and M.L BENADE in their book Company Law, Practitioner's edition…, state the rationale behind the rule as put across in Royal British Bank v Turquand (1856) 6E & B327 as follows:

“For third parties, it is an impossible task to investigate all the internal proceedings of a company in order to ascertain whether someone, who could potentially be a representative in terms of the Articles, in fact had the necessary authority. He would not find any prohibition of the relevant act - an authority to act subject to compliance with certain formalities but nevertheless a clear authority.”

The turquand rule has since been codified in our company law as section 12 of the Companies Act [Chapter 24:03] which provides that:

“12. Presumption of Regularity

Any person having dealings with a company or with someone deriving title from a company shall be entitled to make the following assumptions, and the company and anyone deriving authority title from it shall be estopped from denying their truth;

(a) That the company's internal regulations have been complied with;

(b)…,.

(c) That every person whom the company, acting through its members in general meeting or through its board of directors or its manager or secretary, represents to be an officer or agent of the company, has been duly appointed and has authority to exercise the functions customarily exercised by an officer or agent of the kind concerned;

(d)…,.

(e)…,.

Provided that -

(i)…,.

(ii) A person shall not be entitled to make such assumptions if he has actual knowledge to the contrary or if he reasonably ought to know the contrary.

(iii)…,.”

From the above cited authorities, it is clear that the turquand rule is meant to protect genuine outsiders who deal with a company in good faith, and where the transaction was carried out in good faith and was a legitimate one within the powers of the corporation.

In casu, the appellant was clearly not some third party dealing with an agent or employee of the respondent but occupied the highest post in the respondent as its Secretary General.

As at 6 June 2012, the appellant was still an employee given that her contract terminated on 8 June 2012. She knew how the respondent was run. She had the letter from the Acting President outlining all the benefits approved by the Board. She could not have assumed, and had no basis, for assuming that the Board had met again inside the two days to revise the benefits as already offered. Even if it did, the revision would have been communicated by the person who communicated the benefits to her in the first place.

In any event, in her position as Secretary General, she must have known that any decision in that regard would require a Board resolution from the respondent authorising the Honorary Treasurer to generate the communication to her.

Further to that, the rule does not operate where the transaction has been carried out in deliberate violation of the internal procedures of the corporation.

What can be derived from the papers filed of record is that the communication was carried out in breach of the internal procedures of the corporation in that, the Honorary Treasurer had no mandate to generate such communication, which role was the preserve of the Acting President or the Secretary General pursuant to a Board meeting.

By virtue of this, the binding nature of the communication fell away.

What further militates against the application of the rule is the fact that the Secretary General had actual knowledge, or was reasonably expected to know, that the internal procedures of the company had not been met. This is so because having worked for the respondent for a period of eleven years, the appellant was well aware of how the internal procedures of the respondent were carried out. It therefore follows that, due to the fact that the Honorary Treasurer had not been given the mandate to make the communication, there is no justification for the application of the turquand rule.

I also associate myself with the court a quo's decision that there is no basis for invoking ostensible authority in relation to the Honorary Treasurer's actions.

(a) Firstly, the fact that he was the Honorary Treasurer did not confer him with the requisite ostensible authority, by virtue of that position, to make an offer for the payment of the transfer costs on behalf of the respondent without the mandate from the Board to do so.

(b) Secondly, there is also nothing on the papers to suggest that he normally exercised that function in that particular capacity. See Mills v Tanganda Tea Company Ltd HH12-13.

In light of the above, the court a quo cannot be faulted for holding that the appellant was not entitled to the transfer costs as the Honorary Treasurer's undertaking did not bind the respondent. It had no legal effect.

Neither the turquand rule nor the principle of ostensible authority aid the appellant's case.

The appellant has failed to establish a basis for interfering with the decision reached by the court a quo. The appeal must fail.

Both parties prayed for costs but the respondent put a rider that “to the extent that the appeal is indubitably vexatious, the court is at large to consider an award of costs on the higher scale.”

The appeal cannot be described as indubitably vexatious. There is therefore no basis for awarding costs on a higher scale.

In the result, l make the following order:

The appeal be and is hereby dismissed with costs.

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD
Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

On 12 October 2015, the first respondent declined jurisdiction to quantify the appellant's retrenchment package upon the termination of his employment with the second respondent.

Aggrieved by the decision, the appellant brought a review application before the Labour Court, seeking among other relief, to have the first respondent's decision set aside. He was unsuccessful.

This is an appeal against the entire judgment of the Labour Court handed down on 4 November 2016 dismissing, with costs, the application for review.

Background Facts

The appellant was employed by the second respondent as General Manager (Risk). By letter dated 6 March 2014, the second respondent advised the appellant of its intention to terminate his services by way of retrenchment. The termination of services was to be effective on 31 March 2014.

A dispute arose between the parties as to the package payable to the appellant upon retrenchment. On 3 April 2014, the second respondent referred the dispute to the first respondent.

The first respondent heard the referral on 26 June 2014. It declined to determine the matter which it referred back to the employer, the second respondent. The first respondent's reasons for declining jurisdiction and referring the dispute back to the employer are not on record. They are not necessary for the determination of this appeal.

Subsequently, the second respondent issued the appellant with a “notice to retrench” after reinstating his salary in full. The dispute relating to the package payable to the appellant upon retrenchment remained unresolved and was referred back to the first respondent. Through a process that has not been fully explained in the papers filed of record, the matter was escalated to and was resolved by the Minister of Public Service, Labour and Social Welfare who, on 2 March 2015, authorised the second respondent to retrench the appellant. It is common cause that before approving the retrenchment of the appellant, the Minister received recommendations from the first respondent.

It is further common cause that the appellant's retrenchment was approved on condition the second respondent paid a gratuity equivalent to one month's salary for every year of service, a stabilisation allowance equivalent to two month's salary and a severance payment equivalent to 13,5 month's salary.

In implementing the retrenchment, the second respondent used the appellant's pensionable salary to quantify the total package payable. This dissatisfied the appellant who contended that the second respondent ought to have used his total guaranteed monthly salary as the basis of the quantification. He referred the matter back to the first respondent, seeking determination of the dispute as to what would constitute an accurate computation of his package.

This referral would constitute the third referral of the dispute to the first respondent.

The first respondent did not set the matter down for hearing. In a letter addressed to the parties, and dated 12 October 2015, it declined jurisdiction in the following terms:

“Kindly be advised that the Retrenchment Board has no jurisdiction over disputes arising from terms and conditions of employment. Please refer the matter to a labour officer as per section 93 of the Labour Act Chapter 28.01.”

Contending that the first respondent had acted irregularly in abdication of its statutory duty by declining jurisdiction in the matter, the appellant filed an application for review in the court a quo. As indicated above, the court a quo dismissed the application with an appropriate order of costs.

The proceedings a quo

In his application for review, the appellant alleged that the first respondent had acted irregularly in, inter alia, declining jurisdiction in the matter when the statute setting it up empowered it to act as requested. It was his argument that the issue of the correct formula to be used in computing his retrenchment package had remained undetermined notwithstanding that it was one of the deadlocked positions that had been referred to the first respondent in March 2015 before the Minister approved the appellant's retrenchment. It was his further contention that the first respondent had irregularly and incompetently directed that the dispute be referred to a Labour Officer, who, in the circumstances of the matter, had no jurisdiction over the retrenchment of the appellant.

The first respondent did not oppose the application.

The second respondent did.

It contended that the first respondent was correct in declining jurisdiction in the matter. In the main, and against the main thrust of the appellant's contentions, it contended that once the first respondent had made its recommendations to the Minister, on the retrenchment package, it became functus, having discharged its statutory duties. It further argued that the decision to retrench was ultimately that of the Minister, and, if the appellant was unhappy with the implementation of the Minister's decision, his relief lay in appealing against or bringing that decision on review.

After finding that the grievance by the appellant was against the Minister, who made the final computation of the retrenchment package, the court dismissed the application for review with an appropriate order of costs.

Aggrieved by that decision the appellant noted this appeal.

The Appeal

The appellant raised two grounds of appeal as follows:

1. The court a quo grossly erred and misdirected itself on the facts and the law by failing to determine whether or not the first respondent's decision to decline jurisdiction was proper.

2. The court a quo erred on a point of law and further grossly erred and misdirected itself on the facts which error amounts to an error of law by dismissing the appellant's application for review, inter alia, on the following grounds:

“(a) That the Minister had made '…, the final computation of the package…,' on the recommendations of the first respondent, hence, it was the Minister's decision which should have been challenged;

(b) That the decision which the applicant is not happy with is that of the Minister when it is common cause that the appellant was not happy with the second respondent's unilateral interpretation of the word 'salary' and upon representations thereto, the first respondent declined jurisdiction.”

The issue that arises in this appeal is, therefore, whether the court a quo erred in failing to determine the issue that was before it, or, alternatively, in determining the issue after misdirecting itself on the facts.

The Law

It is a settled position at law that failure to determine a material issue that is before the court is a gross irregularity that vitiates the decision made.

The broad position of the law was recognised by UCHENA JA in Nzara and Ors v Kashumba and Ors SC18-18 where he had this to say:

“A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.”

Thus, the general and trite position of the law, that requires no further debate, is that a court cannot go on a frolic of its own and determine the dispute before it by raising its own issues or facts and resolving the dispute on such.

Looking at the basic role of the court from a slightly different angle, GOWORA JA, in PG Industries v Bvekerwa SC53-16, observed that:

“The position is settled that where there is a dispute on a question, be it a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.”

Whilst GOWORA JA, in PG Industries v Bvekerwa SC53-16, was dealing with a case where the lower court had failed to deal with a preliminary issue that arose in the matter before it, the position still holds that even where there is a sole issue to be determined and the court does not determine that issue, but focuses on irrelevant or incorrect issues, the failure to deal with the correct issue is fatal to the proceedings.

There are a number of other legal principles that converge to discourage a court from going on a frolic of its own and determining a matter on an issue that is not raised by the parties in their papers and arguments. These include the duty of the court, where it is of the view that a certain factual or legal position is dispositive of the matter before it, to invite the parties to address it on the point before resolving the dispute wholly or partly on the point. A detailed discussion of this and other principles is not necessary in this appeal as there was no dispute as to the applicable law.

Analysis

As stated above, the issue before the court was whether the refusal by the first respondent to exercise jurisdiction in the third referral of the dispute to it by the appellant was irregularly made.

A reading of the judgment a quo indicates that the court appears to have laboured under the erroneous understanding that the review before it related to the second referral of the matter to the first respondent, which led to the Minister of Public Service, Labour and Social Welfare Minister stepping in and approving the retrenchment of the appellant on 2 March 2015. This appears from the passage in the judgment a quo containing the ratio of the decision, which reads:

“Page 154-155 of the record shows that the Minister eventually made a decision after the Retrenchment Board recommendation. Section 12(8) of the Labour Act states that even where the Board fails to make a recommendation, the Minister can still get relevant documentation and still make a decision. In this case, it is the Minister who made the decision after recommendations from the Board. It is this court's view that the grievance in this case is against the Minister who made the final computation of the package…,. The Minister made the decision and thus the complaint should be raised against the Minister and not the Board which merely made recommendations.”…,.

With respect, the decision of the first respondent that was under the spotlight was not on the second referral of the matter in March 2014 but on the third referral, which decision was communicated to the parties on 12 October 2015.

I note that the court a quo does not, at any stage, advert to this decision in its judgment.

Having made this first error, the court a quo fell into the second and more serious error which vitiates its decision. It formulated its own issues for determination.

(a) Firstly, it formed the view that the issue before it was “the computation of the retrenchment package” due to the appellant.

Whilst the computation of the package was at the centre of the dispute between the parties, it was not the immediate issue that fell to be determined in the review application a quo. As indicated above, the immediate issue to be determined was whether the second denial of jurisdiction by the first respondent over the matter was properly arrived at.

(b) Secondly, and as building up to its ratio, the court a quo raised and determined an issue that was not an issue for the parties.

It made a finding that the final package had been computed by the Minister. This finding was against the common position of both parties. It was common cause that the computation of the package had been done by the second respondent and not by the Minister. Therefore, the identity of who made the final computation of the appellant's retirement package was not in issue and was therefore not a point on which a finding by the court was necessary.

I further note, in passing, that had the court a quo canvassed with counsel its view of the turning point in the application for review and the facts which it thought were in dispute between the parties, an eminently prudent practice for any court, this appeal may have been obviated.

However, this was not so.

I find merit in the appellant's grounds of appeal. The court a quo failed to determine the issue that was before it. It raised its own and gravely misconstrued the facts giving rise to the dispute in resolving the issue it had raised for itself.

Disposition

Having fallen into error in not only formulating the incorrect issue for its determination but in basing its decision on incorrect facts, the decision of the court a quo cannot stand. It must be set aside and the matter remitted for fresh determination.

Costs of this appeal will follow the cause. I see no reason for departing from this general position in this appeal.

In the result, I make the following order:

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted to the court a quo for determination de novo.

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.

The background facts may be tabulated conveniently as follows:

1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.

2. On 18 January 2005 the Hotel wrote to Vimbai informing him that his contract of employment had been terminated. The letter reads as follows:

“Please be advised that effective 1 January 2005 your employment contract with Sheraton Harare Hotel and Towers has been terminated. You are no longer required to register for duty physically, on standby, or in any other form.

The decision has been taken by management as a last resort after futile attempts to resolve the matter amicably and through further attempts to settle the matter through arbitration. Management and yourself are of the opinion that the employment relationship has deteriorated to non-productive levels.

As a way forward, Sheraton Harare Hotel is willing to resolve the matter through arbitration provided both parties agree on terms of reference to be presented before the arbitrator.”

3. Vimbai took the letter to his trade union, the Zimbabwe Catering and Hotel Workers Union (“the Union”) which, on 20 January 2005, wrote to the Hotel indicating that Vimbai's dismissal would be challenged.

4. On 21 January 2005, the Hotel wrote to the Union as follows:

“Vimbai Mbisva's contract of employment has been terminated due to deterioration in the working relationship between Sheraton Harare Hotel and himself. As stated in our previous correspondence, we are willing and able to engage in dialogue that will result in the resolution of this matter. We are, in addition, willing to accept a determination from a body with appropriate authority to settle the matter.

The hotel welcomes intervention from the Zimbabwe Catering and Hotel Workers Union provided such intervention assists in a settlement of the above matter.”

5. Thereafter, the Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected that proposal.

6. Subsequently, the Union and the Hotel entered into negotiations on the best way forward, but, the negotiations did not yield any positive results.

7. Then, on 25 January 2005, Vimbai went to the Hotel where he signed a Memorandum of Agreement (“the MOA”) which reads as follows:

“I, Vimbai Mbisva, hereby acknowledge that I have entered into an agreement with Sheraton Harare Hotel, under the following terms of which I have agreed:

1. To accept payment of the sum of Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) as full and final settlement of all claims that I have against Sheraton Hotel Harare, its directors, subsidiaries, associated companies, and operations. I acknowledge that I have received Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) in full.

2. To withdraw all claims, complaints, and statements made (by) me relating to Sheraton Hotel Harare, whether with my legal advisors, any legal advisors, any Government body, any court, tribunal or to (sic) any other organisation.

I acknowledge that I have no further claims against Sheraton Hotel Harare, its directors, subsidiaries, associated companies and operations, whether for damages or otherwise. I have entered into this agreement of my own free will and I confirm that my signature appears on this agreement. I undertake to file a copy of this agreement with my legal advisors and any other organisation whose assistance I had sought.”

8. On 2 February 2005, Vimbai's legal practitioners referred the issue of Vimbai's unlawful dismissal to a Labour Officer for conciliation. The Labour Officer failed to settle the dispute, and, accordingly, on 15 April 2005, issued a Certificate of No Settlement.

9. On 9 May 2005, the Labour Officer referred the dispute to compulsory arbitration, and identified the issues for arbitration as:

“(1) Whether the agreement of 25 January 2005, between V Mbisva and Sheraton Hotel, is valid or not.

(2) If not, what damages are payable to Mr Mbisva.”

10. On 3 June 2005, Vimbai and the Hotel's Human Resources Director (“Makoni”) appeared before the arbitrator with their legal practitioners. Both Vimbai and Makoni gave oral evidence and were cross-examined. After addresses by the legal practitioners, the arbitrator reserved his decision.

11. On 18 July 2005 the arbitrator gave his decision, which was that the MOA signed by Vimbai on 25 January 2005 was not binding on the parties because it was not an agreement in the legal sense.

12. Aggrieved by that decision, the Hotel appealed to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01] (“the Act”).

13. On 5 April 2007, the Labour Court allowed the appeal and set aside the arbitral award granted on 18 July 2005.

14. Dissatisfied with that result, Vimbai appealed to this Court, leave to appeal having been granted in terms of section 92F(2) of the Labour Act [Chapter 28:01].

The grounds of appeal set out in the Notice of Appeal are as follows:

“1. The court a quo grossly erred as a question of law overturning the decision of the arbitrator on ordinary common law (principles) and not on the (principles) of public policies (enunciated) and captured in Article (34) of the UNCITRAL Model Law as incorporated in our Arbitration Act [Cap 11:15]. Put simply, (in) overturning the decision of the arbitrator, the court was obliged to consider whether the award in itself offended public policy.

2. Even assuming that the matter had to be determined purely and squarely on the basis of section 98(10) of the Labour Act [Cap 28:01], the court a quo grossly erred (in) overturning (a) finding of fact by the arbitrator. Put simply, there (were) no questions of law in the appeal pending before the Labour Court, and, for that reason, the Labour Court had no good reason to interfere with the finding of fact that (had) been made by the arbitrator.

3. Put simply, the Labour Court grossly misunderstood its functions, the court dealing specifically with questions of law under section 98(10) of the Labour Act [Cap 28:01].

4. Even assuming, without conceding, that (there were) questions of law in the appeal before the Labour Court, the Labour Court itself grossly erred in holding that (the) document executed on the 25th of January 2005 was binding, and ignored that the same had been executed under protest. In any event, to show that the appellant was not agreeing with the same he had left a settlement cheque with the respondent.”...,.

WAS THE MEMORANDUM OF AGREEMENT BINDING ON VIMBAI?

In the fourth ground of appeal, it is submitted that the Labour Court erred in holding that the Memorandum of Agreement (MOA) was binding on Vimbai, and ignored the fact that it was signed under duress.

However, this ground of appeal was not dealt with in the heads of argument filed on behalf of Vimbai. Nevertheless, I will deal with it.

The issue raised in this ground of appeal is whether the Memorandum of Agreement (MOA) was signed under duress.

As already stated, both Makoni and Vimbai gave evidence before the arbitrator and were cross-examined. After consideration of that evidence, the arbitrator said the following:

“In one way or the other, after the dismissal of the claimant, the parties contacted each other, resulting in the claimant and Mr Makoni (from Sheraton) meeting to 'finalise' the matter. At this penultimate meeting, the employer presented a document that would put the matter to rest. The claimant knew that if he continued to challenge his dismissal, he would get nothing from the employer. He therefore pretended to be accepting his terminal benefits, but requested that they be split into two parts, with the first part incorporating largely the January salary and (the) other part the rest of the other terminal benefits.

The claimant then wrote “U.P.” after his signature to signify that he was accepting the benefits 'Under Pressure'.

This was not explained to the employer.

The employer acknowledges that he (it?) was not aware that the claimant had signed the document under pressure.

The claimant hoodwinked the employer into believing that he was consenting to the termination of employment and to the acceptance of terminal benefits. This was done with the sole aim of accessing the January salary.

The claimant's conduct is deplorable.

He was understandably desperate for cash but he used unorthodox methods to get what he wanted.

He lied that he was accepting the benefits of his own free will, and that his acceptance was in full and final settlement of (the) claims that he had against the respondent.

No wonder the respondent's agent kept referring to him as a trickster.

Had it not been for my findings regarding the Memorandum of Agreement (MOA) I would have ruled that the claimant be bound by (his) signature, never mind the invented 'U.P'.”

It is quite clear, from what the arbitrator said, that, he was satisfied that Vimbai had not signed the Memorandum of Agreement (MOA) under duress.

The Labour Court was of the same view and said the following:

“It may very well be true that he was under financial pressure which forced him to accept a deal that he did not like. But, the fact remains that he need not have accepted the deal. It is not like his will was overborne by (the) appellant's to the extent that he had no choice in the matter. He had a choice. He could have rejected the whole deal and pursued other remedies. The fact that he now feels that he should have got more than the deal offered is no ground for breaking the deal.”

The finding by the Labour Court, that Vimbai did not sign the Memorandum of Agreement (MOA) under duress, is a finding of fact, which is not appealable unless it can be said to be irrational in the sense set out in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, where this Court said:

“The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 951A-B; PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.”

In the present case, I am not prepared to say, that, having regard to the evidence placed before the arbitrator and the Labour Court the finding complained of is irrational in the sense set out above.

Consequently, the finding that Vimbai did not sign the Memorandum of Agreement (MOA) under duress is not appealable, and the fourth ground of appeal, therefore, falls away.

In my view, the Labour Court correctly determined the matter.

The Memorandum of Agreement (MOA) was a declaration by Vimbai that the dispute between him and the Hotel had been settled on the terms and conditions set out in the Memorandum of Agreement (MOA).

That conclusion is logically consistent with what happened in this case before 25 January 2005.

Vimbai was dismissed by the Hotel. He reported the matter to the Union and a labour dispute ensued. Negotiations aimed at settling the dispute commenced between the Union and the Hotel. The Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected the proposal. As he badly needed some money, Vimbai went to the Hotel, on 25 January 2005, and signed the Memorandum of Agreement (MOA), declaring that the
labour dispute had been settled on the terms and conditions set out therein.

In my view, that declaration is binding on him.

In the circumstances, the appeal is dismissed with costs.

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

After perusing papers filed of record and hearing counsel in this matter we allowed the appeal with costs. We indicated therein that our reasons would follow in due course. These are they.

The respondent was formerly employed by the appellant. Sometime in September 2012, the appellant obtained approval from the Ministry of Labour to send a number of employees on retrenchment.

The respondent was one of those affected by the exercise.

On 23 August 2012, the parties agreed a retrenchment package to be paid to the employees. The appellant, for reasons not germane to these proceedings, did not pay out.

On 19 March 2014, the respondent, under Case No. HC627/14, filed a chamber application to have the retrenchment package thus agreed registered by the High Court in Bulawayo. On 3 April 2014, the High Court issued an order against the appellant as follows:-

1. The Registrar of the High Court is directed to register the Retrenchment Award made in favour of the applicant as an order of this court.

2. The respondent shall pay to the applicant the sum of US$34,318=52 due to him in terms of such award.

3. The respondent shall pay the costs of this application.

The respondent then caused a writ of execution to be issued by the High Court. The Deputy Sheriff executed the writ and attached properties belonging to the appellant in satisfaction of the debt.

Upon service of the writ, the appellant attempted negotiations with the respondent to stay execution of the writ - to no avail. On 9 May 2014, seven days after being served with the writ, the appellant filed an urgent application to have the writ of execution stayed.

The application was dismissed by the High Court on the grounds that it was not urgent.

This appeal lies against that dismissal.

In sum, the appellant attacks the judgment on the grounds that the Court erred in the following respects:

(a) In holding, that, the appellant was aware of the registration of an award when in fact there was no such award;

(b) In failing to appreciate, that, the writ was premised on an order obtained ex parte without notice to the appellant;

(c) In failing to appreciate, that, the appellant only became aware of the order on 2 May 2014 upon service of the writ, and, that, consequently, the appellant had acted speedily in filing the application for stay of execution;

(d) In holding, as it did, that the application was prompted by, firstly, the imminent removal of its goods, and, secondly, the appellant's inability to pay its obligations in terms of the award when there was no award;

(e) In holding, as it did, that, the fact that the appellant might have owed the respondent was the only decisive factor and that the procedure by which the payment was sought was inconsequential.

The court a quo concluded, that, the application for a stay of execution of the writ was not urgent on two bases:

(i) The first was the appellant was aware, not only of the existence of “the award” but also of its registration and yet took no action in relation thereto.

(ii) The second basis was that the appellant had, as far back as September 2012, been aware of its financial obligations viz a vis the retrenchment packages and had made no effort whatsoever to pay the retrenchees.

The court therefore reasoned, that, due to the above circumstances, the only motive for the application was the appellant's inability to pay and its desire to postpone the imminent removal of its property in execution of the writ.

I intend to dispose, first, of the question of the registration of the award.

The order in relation to the said award was issued by the High Court on 3 April 2014. The order was premised on a chamber application filed on 19 March 2014.

It is common cause, that, the application itself was never served on the appellant.

The contention is made, that, the learned judge who granted the application had raised a query on the failure to serve the application on the appellant. It is further common cause, that, in answer to the query the respondent's legal practitioner informed the judge that the application was procedural and therefore there was no need to serve the application.

As is evident from the record, this was inaccurate.

The order granted dealt with substantive issues, including an order for the payment of a specified sum of money to the respondent. Thus, the application could not, in any circumstance, be termed procedural.

Although an application for the rescission of the order in question has been filed and is still pending, the court a quo made certain findings relating to the order in disposing of the application for a stay which make it necessary to comment briefly on the order.

The first relates to the conclusion that the appellant was aware of the retrenchment award.

There was in fact no award.

What was in place was an agreed retrenchment package which was subsequently approved by the Retrenchment Board in the Ministry of Public Service Labour and Social Planning. It was this package that was placed before the High Court for registration as an award.

It is this registration that the appellant contends was irregular.

Indeed, from the record, it is not clear upon what premise the High Court was requested to register the said award, and, in addition, how it was empowered to do so.

In basing the perceived lack of urgency on the said award, the High Court misdirected itself.

I turn next to the finding by the court a quo that there was no urgency in the application due to the awareness by the appellant, as far back as September 2012, of its financial obligations, and, that, as a result, there was no urgency.

The retrenchment package in question does not reflect the name of the respondent.

It was an agreement between the representatives of the appellant, as employer, and the representatives of non-managerial employees of the appellant. The agreement sets out the modalities of calculating the packages. It does not set out specific amounts for payment as retrenchment dues. Nor does it spell out any individual packages for payment by the appellant.

The monetary value for payment to the respondent appears to have been compiled by ZIMRA.

No explanation for its origin is evident on the application.

It therefore begs the question how the appellant could have been aware of a specific obligation to the respondent personally, or any of its employees, under these circumstances.

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

On 19 June 2002, the applicants and the respondent entered written into a retrenchment package agreement (agreement). The pertinent terms of the agreement were as captured in LC/H/70/2005 by MAKAMURE J where she stated the following:

“The retrenchment undertakes to pay the employees who have been retrenched the following retrenchment package:

(a) Payment in lieu of notice;

(b) Abolition of office – per staff rules;

(c) Cash in lieu of leave;

(d) Stabilization/gratutity - 25 months gross salary times the number of years served including fraction thereof;

(e) Long service awards;

(f) Relocation allowance - $10,000 across the board;

(g) Medical aid support on current terms up to 31 December 2003, except for those who get employment and have a medical aid cover;

(h) Pension - in terms of pension regulations;

(i) Licence fees to be paid as per the following categories:

Less than 3 years - 1 year up to 31/12/03

3-10 years - 1 year up to 31/12/04

11-15 years - 1 year up to 31/12/05

16-20 years - 1 year up to 31/12/06

21-30 years - Life exemption

31 years + - Life exemption

(j) Preferential recalls (temps/etc);

(k) ZBC accommodation – up to 30 December 2002.”

Disputes arose regarding the implementation of the agreement. Among other reasons, the respondent argued that payment of the pension could not be constructed as part of the agreement. The parties took their dispute for arbitration. The arbitrator found in favour of the respondent and ordered that the applicants honour the agreement.

Aggrieved by the decision, the respondent appealed to the Labour Court and the matter was heard by MAKAMURE J who upheld the appeal. She found that the respondent had entered into the agreement freely and that it had chosen to be bound by the terms of the agreement. She also found that the agreement was the sole memorial of the parties intention and that there were no special circumstances warranting interference with what the parties had agreed.

The respondent then appealed to the Supreme Court and that appeal is still pending.

The parties continued to engage each other through various correspondence. In the engagements arose the issue whether the retrenchment package had been paid in full or not. The respondent argued that the applicants benefits, including pension, had been paid in full up to December 2003.

The applicants then approached this court seeking a declaratur.

The matter is opposed and the respondent took three points in limine, viz:

1. Absence of jurisdiction on the part of this court.

2. The matter is lis alibi pendenis.

3. The fact that the applicant sued a non-existing entity.

I will first of all determine the points in limine.

Jurisdiction

Counsel for the respondent submitted, that, what is before the court, that is a dispute of right, as is defined in terms of section 2 of the Labour Act [Chapter 28:01] (the Act). One must consider section 8 of the Labour Act which defines what an unfair labour practice is. The dispute between the parties is therefore a labour issue and can be resolved in terms of section 94 of the Labour Act.

Counsel for the applicants submitted that the applicants are proceeding in terms of section 14 of the High Court Act [Chapter 7:06].

A dispute arose between the parties and the applicants seek a declaratur. He further submitted that section 14 of the High Court Act is complementary to section 89(2) of the Labour Act.

He submitted that the Labour Court is a creature of statute. Its powers and functions are provided for in the Labour Act, and, in exercising those powers, it cannot go beyond what the Labour Act provides. He relied on the authority of NRZ v Zimbabwe Artisan Union & Ors 2005 (1) ZLR 341 (S).

The issue is, looking at the dispute between the parties, which is the appropriate foraie, the High Court or the Labour Court, to deal with the matter?

The law is settled, and the parties are agreed on the position of the law regarding the granting of declaraturs and the exclusivity of the jurisdiction of the Labour Court.

In NRZ v Zimbabwe Artisan Union & Ors 2005 (1) ZLR 341 (S)…, ZIYAMBI JA…, had this to say:

“Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application 'in terms of this Act or any other enactment.'

This necessarily means that the Act, or any other enactment, must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring: see PTC v Chizema SC108-04. In that case, it was pointed out that an application brought in terms of section 93(7) of the Act would correctly be termed an application 'in terms of the Act'.

Thus, the application and the remedies obtainable thereby must be authorised in the Act or the enactment authorising the application to the Labour Court.

Nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo, nor have I been referred to any enactment authorizing the Labour Court to grant such an order.

The court went further had earlier on p346G stated;

There is, I think, judging from the cases which have come before us, a misconception, generally held by the Labour Court, namely, that, it is, in terms of section 89 of the Act, endowed with jurisdiction to entertain all applications brought before it.”

The same was restated in UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S)…, in respect of seeking a declaratur in the Labour Court:

“So, too, in this case, there is no provision in the Act (nor have I been referred to any provision in any other enactment) authorizing the Labour Court to issue the declaratory order sought by the respondent. It is therefore my view that the Labour Court ought to have dismissed the application for want of jurisdiction. Accordingly, the appeal succeeds on this point.”

The converse to the above can be found in Tuso v City of Harare 2004 (1) ZLR 1 where it was held that all labour matters, unless specifically excluded, must be dealt with by the Labour Court.

In that case, BHUNU J…, gave an analogy which clearly sets out the position regarding labour matters, and the Labour Court powers, when he stated:

“To draw an analogy, a labour dispute is essentially a civil dispute over which the Magistrates Court ordinarily has jurisdiction in terms of its limited jurisdiction. A magistrate cannot arrogate to himself jurisdiction under the Magistrate Court Act and not the Labour Act.

By the same token, the High Court exercises review powers which have been expressly excluded under the pretext that it will be exercising its general powers of review under the High Court Act.”

The next question would be: what is the nature of the dispute between the parties?

The respondent contends that it is a dispute of right.

Dispute of right is defined in section (2) of the Labour Act [Chapter 28:01] as follows:

“means any dispute involving legal rights and obligations occasioned by an actual or alleged unfair labour practice.”

What constitutes an unfair labour practice is defined in section 8 of the Labour Act.

“An employer…, commits an unfair labour practice if, by act or commission he…,-

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Fails to comply with or implement -

(i) A collective bargaining agreement; or

(ii)…,.

(iii) A decision or finding made under Part XIII; or

(iv) Any determination or direction which is binding upon him in terms of the Act.”

The respondent contends, that, for the enforcement of such rights one looks at section 89(2) as read with section 93(7)(ii) of the Labour Act. It further contends that section 93(7)(ii) cross references itself with section 89(2) with the result that an application for the pronouncement of an order stemming from a dispute of rights, is easily actionable. The respondent concluded by saying the issue before the court can therefore be determined by the Labour Court.

The applicants contend that, although the dispute bears elements of a labour dispute, the Labour Court cannot exercise jurisdiction over matters not specifically provided for in the Labour Act such as declaraturs.

This contention by the applicants gives away the true nature of the dispute between the parties.

It is a labour dispute.

What one needs to look at, in terms of section 89(1) as read with section 89(6) of the Labour Act is the nature of the application itself and not exclusively the relief sought as seems to be suggested by the applicants.

I would want to agree with the respondent, that, the dispute that is between the parties is a dispute of right.

The applicants are complaining about the respondent's failure to comply with its obligation in that it failed to implement an agreement in terms of a determination made by the Labour Court which is binding upon it. This complaint fits squarely in the definition of an unfair labour practice.

Such a dispute is a dispute of right.

An application can be founded for a pronouncement or enforcement of such a right by reason of section 89 and 93 of the Labour Act.

It would be contrary to the intention of the legislature to allow a party whose case is plainly a dispute of right to circumvent the exclusive jurisdiction of the Labour Court by labelling their order a 'declaratur' when in truth and substance it is not.

In view of the above finding, I will uphold the point in limine and decline jurisdiction in this matter.

Having made that finding, it will not be necessary for me to deal with the other points in limine.

In the result, I will make the following order:

(1) The application is dismissed.

(2) The applicants to pay the respondent's costs.

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order....,.

The factual background to the matter is as follows:

The first appellant was, at the time of the institution of these proceedings in the court a quo, said to be the 'owner' of the second and third appellants. In legal terms he was the director and sole shareholder thereof.

The second and third appellants were companies duly registered in terms of the laws of Zimbabwe.

The respondents were employed by the second and third appellants, and, due to viability constraints, a decision was taken to retrench them.

A notice to retrench, dated 15 April 2008, was duly issued, and bore the names of those affected by the decision to retrench.

Efforts were made to negotiate a retrenchment package but no agreement was reached, prompting the parties to seek the assistance of the relevant National Employment Council (“NEC”).

The National Employment Council (NEC) gave the parties up to 15 May 2008 to reach a compromise, failure of which the matter would be referred to the Retrenchment Board.

The parties reached an agreement before this deadline.

As required by section 12C(3) of the Labour Act [Chapter 28:10] (“the Act”), approval for the retrenchment of employees was signed by the parties and sent to the Retrenchment Board, which, in turn, gave its approval in terms of the same section of the Labour Act.

When the appellants were about to implement the approved settlement, the respondents changed their minds and approached the Labour Court with a chamber application for an interdict whose effect would be to stop the appellants from implementing the retrenchment package that was approved by the Retrenchment Board.

The respondents also cited irregularities in how the retrenchment agreement came about, in particular, that it was not agreed upon because some members of the Workers Committee had not signed it. They further alleged, that, the approved settlement was not ratified by the affected employees and neither was it approved by the Minister.

In the same urgent chamber application, the respondents were seeking a final order that the agreement for the retrenchment package be declared null and void and the Retrenchment Board's approval thereto set aside. The final order would allow reinstatement of the respondents without loss of wages or benefits.

A provisional order was granted on 23 May 2008. It interdicted the first appellant from paying out retrenchment packages to the respondents without an order of court.

The main matter on the final order sought was set down for hearing on 4 July 2008 but was not heard on that day.

The parties negotiated further and signed another settlement document. When the appellants sought to implement the new agreement, the respondents refused to accept the package.

The matter was then heard on 18 January 2010 and the learned judge essentially held, that, the retrenchment itself was not done procedurally and was therefore a nullity.

In the judge's view, this was a consequence of the fact that the Minister did not approve the retrenchment - despite the agreement of the parties thereto.

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

Section 12C(2) of the Labour Act [Chapter 28:01] provides, that, unless better terms are agreed between the employer and the employees concerned or their representatives, a package (“the minimum retrenchment package”) of not less than one month's salary or wages for every two years of service as an employee (or ...

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Employment Contract re: Termination iro Retrenchment and Severance Agreements

SC23-11 : MUKUNDI PLASTICS (PVT) LTD vs ELIJAH CHASEKWA and THIRTEEN OTHERS
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

SC06-15 : BALLANTYNE BUTCHERY (PRIVATE) LIMITED t/a DANMEATS vs EDMORE CHISVINGA & OTHERS
Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

HH12-13 : ANDREW MILLS vs TANGANDA TEA COMPANY LIMITED
Ruled By: PATEL J

HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED
Ruled By: MAKONI J

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED
Ruled By: MTSHIYA J

SC16-13 : FREDA REBECCA GOLD MINE HOLDINGS LIMITED vs M NHLIZIYO and 180 ORS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE
Ruled By: MATHONSI J

View Appeal
HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD
Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

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Law Portal Zimbabwe

Employment Contract re: Termination iro Retrenchment and Severance Agreements

SC23-11 : MUKUNDI PLASTICS (PVT) LTD vs ELIJAH CHASEKWA and THIRTEEN OTHERS Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS Ruled By: MTSHIYA J

SC06-15 : BALLANTYNE BUTCHERY (PRIVATE) LIMITED t/a DANMEATS vs EDMORE CHISVINGA & OTHERS Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

HH12-13 : ANDREW MILLS vs TANGANDA TEA COMPANY LIMITED Ruled By: PATEL J

HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED Ruled By: MAKONI J

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED Ruled By: MTSHIYA J

SC16-13 : FREDA REBECCA GOLD MINE HOLDINGS LIMITED vs M NHLIZIYO and 180 ORS Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED Ruled By: MAKONESE J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS Ruled By: GARWE JA, PATEL JA and MAKONI JA

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED Ruled By: CHIGUMBA J

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE Ruled By: MATHONSI J

View Appeal HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS Ruled By: MAKONI J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

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Zimbabwe

SC23-11 : MUKUNDI PLASTICS (PVT) LTD vs ELIJAH CHASEKWA and THIRTEEN OTHERS
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

SC06-15 : BALLANTYNE BUTCHERY (PRIVATE) LIMITED t/a DANMEATS vs EDMORE CHISVINGA & OTHERS
Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

HH12-13 : ANDREW MILLS vs TANGANDA TEA COMPANY LIMITED
Ruled By: PATEL J

HH27-13 : ARNOLD SIKHUMBUZO MAHLANGU vs C Z L INCORPORATED (PRIVATE) LIMITED
Ruled By: MAKONI J

HH187-14 : CHRISTMAS MAZARIRE vs OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED
Ruled By: MTSHIYA J

SC16-13 : FREDA REBECCA GOLD MINE HOLDINGS LIMITED vs M NHLIZIYO and 180 ORS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

HB253-16 : MBERIKUNASHE MASVIBO and 14 OTHERS vs TN HARLEQUIN LUXAIRE LIMITED
Ruled By: MAKONESE J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

HH152-14 : RESERVE BANK OF ZIMBABWE vs PRIVILEDGE MATURURE
Ruled By: MATHONSI J

View Appeal
HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD
Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC