PATEL JA: This is
an appeal from
the decision of the
High
Court
granting absolution from
the instance in respect of the appellant's claim. The claim was for
US$62,707.12 as the balance owing to him from 2002 to 2008 for unpaid salaries
and allowances and charges for the hire of his truck. The respondent denied
that there had been any agreed reconciliation with the appellant for the sums
claimed. The respondent also averred that the appellant was not employed by it
but by another entity, Tarcon Limitada, which was based in Mozambique.
The High Court held that the claim for salaries and allowances was not
based on any stated account but on a contract
of employment governed
by the Labour
Act [Cap 28:01] and therefore fell outside the jurisdiction of the court
in the first instance. Moreover, the claim had prescribed after the lapse of
two years. It further held that because the payments were to be made to the
appellant outside the country they were not
recoverable as being in contravention of the Exchange
Control Regulations 1996. Additionally, it was held that the proper claimant in
respect of the truck hire charges should
have been the appellant's company, Earthquip (Pvt) Ltd, and that the
proper defendant should have been the entity based in Mozambique. Consequently,
the appellant had no locus standi to
institute that claim. For all of these reasons, the court granted the
respondent's application
for absolution from the instance.
LABOUR
MATTER OR CLAIM ON STATED ACCOUNT
The respondent's
position is that the reconciliation statements relied upon by the
appellant required the approval of its chairman for any liability to arise. As
no such approval was ever obtained, there was no agreed statement of account
and, therefore, the appellant's
claim for unpaid salaries was a purely labour matter subject to the
exclusive jurisdiction of the Labour Court in terms of s 89(1) and (6) of the
Labour Act. Moreover, s 94(1) of the Act stipulates that a labour dispute must
be raised within a period of two years. In the instant case, that period had
expired before the appellant issued summons and, therefore, his claim for
salary and allowances has prescribed.
The two reconciliation statements in question contain the following
identical handwritten appendage signed by
the respondent's financial
advisor (Desmond Nhemachena) on 7 November 2008: “Pending approval by the chairman the above amount will be paid out at
the agreed payment plan attached”. It is not entirely clear from the
record whether or not the respondent's
chairman had in fact approved the payment plans. However, this did
not form any part of the respondent's defence in its
plea.
Rather, it simply contended that the appellant and Nhemachena were not employed
by the respondent but by Tarcon Limitada.
More importantly, the undisputed evidence of the appellant is that after
the reconciliation statements were prepared he received two payments in cash and
fuel from the respondent in respect of leave days due and two months' salary. The
respondent did not at any stage claim any refund in respect of these payments
or endeavour to recover them from the appellant. Equally significantly, the
registration certificate of Tarcon Limitada shows that it was only registered
on 6 February 2009, while Nhemachena signed the reconciliation statements three
months before on 7 November 2008. Thus, the appellant and Nhemachena could not
possibly have been employed by Tarcon Limitada
at the time when the statements were prepared.
In the circumstances, I am inclined to take the view, in the absence of
evidence to the contrary adduced before the court a quo,
that the claim in casu was based on a stated account. There was
an agreed acknowledgement of liability signed on behalf of the respondent. All
that appears to have been required thereafter is its chairman's approval of the payment plan or
method of discharging that agreed liability. As was recognised by the learned
judge, it is competent to sue a debtor on his admission of liability as set out
in an acknowledgement of debt, without founding the action on the original
transaction giving rise to that acknowledgement. See Mahomed Adam
(Edms) Beperk v Raubenheimer 1966
(3)
SA 646 (TPD) and the authorities there cited.
Consequently, the court a quo erred
in holding that the
contractual claim before
it constituted a
labour dispute beyond its
jurisdiction
and within the exclusive domain of the Labour Court by virtue of ss 89(1)(c)
and 89(6) of the Labour Act.
As regards the supposed prescription of the appellant's claim, it follows that the two year
prescriptive period under s 94(1) of the Labour Act has no bearing on the
appellant's
contractual claim founded on a stated account. That provision is confined to
claims or disputes that are subject to the exclusive governance of the Labour
Act. It cannot operate to oust or
override the periods of extinctive prescription applicable under the
Prescription Act [Cap 8:11] in relation to the recovery of
contractual debts in general.
EXCHANGE
CONTROL APPROVAL
The respondent
contends that the appellant's claim is for payments in foreign currency
that required exchange control approval at the relevant time and that that
there is no proof that any such approval was ever obtained. Therefore, they are
entitled to resist any claim for payments that were not duly authorised.
Section 11(1)(a) of the Exchange Control Regulations 1996 prohibits any
Zimbabwean resident from making any payment outside Zimbabwe without the
approval of an exchange control authority. In terms of s 45(1) of the
Regulations, a debtor may avoid payment solely on the grounds that the debt is
not payable without the permission of an
exchange control authority or that any such authority has not granted
permission for payment of the debt.
It is common cause that some of the payments due to the appellant were
made in Zimbabwe while others were to be made to the appellant outside
Zimbabwe. The court a quo found that
no exchange control permission was granted for any of the payments in question.
The court also held that the onus to produce proof of any such approval fell on
the appellant and that, having failed to discharge that onus, he was not
entitled to enforce an illegal contract.
The first point to note is that this defence of illegality was not raised
at any stage in the pleadings. Be that as it may, it is difficult to accept the
finding of the court a quo that no
exchange control permission was ever obtained. A critical piece of evidence
that was before the court is a letter from the respondent's financial director addressed to the
appellant, dated 17 March 2006, requesting him to confirm the balance that was
owed to him by the respondent as at 31 December 2005 in the sum of
US$32,022.50. This request was made to confirm staff liabilities for audit
purposes. Given the unquestionably official purpose underlying this request, it
seems highly improbable that the respondent was operating without the requisite
exchange control approval vis-à-vis the payments made or owing to the appellant
during the relevant period.
Going beyond the facts, it is even more difficult to comprehend the
decision of the court a quo that the onus to prove exchange
control approval lay with the appellant. As a rule of evidence, it is trite
that he who asserts any fact must carry the burden to prove that fact. In the instant case, it is
the respondent that resists payment on the ground that the
necessary permission of
the exchange control
authority was not
granted.
Therefore, just as it behoved the respondent, qua payer in the course of its
transactions with the appellant, to obtain that permission, so was it incumbent
upon it to discharge the burden of proving its assertion that no such
permission was in fact obtained. It is
abundantly clear that the learned judge misdirected himself in this regard.
LOCUS STANDI TO SUE ON TRUCK HIRE CONTRACT
The court a quo found that the
truck in respect of which the appellant sued for hire charges was owned by his company,
Earthquip (Pvt) Ltd, and not by the appellant himself. Additionally, it was
found that the hire contract was concluded between Earthquip and Tarcon
Limitada which was a separate legal entity distinct from the respondent.
Consequently, the appellant had no locus
standi to sue the respondent for the truck hire charges.
The above factual findings are borne out by the appellant's own evidence under cross-examination.
However, it was also his evidence that Earthquip had ceased to operate at that
stage and that, therefore, he personally entered into the truck hire contract
with the respondent. On the other hand, there is nothing in his pleadings to
substantiate the nexus between himself and Earthquip and, more critically,
between the respondent and Tarcon
Limitada. Moreover, notwithstanding his reliance on the stated account, his
cause of action in respect of the truck hire contract is not separately
identified as such and therefore cannot be supported on his own pleadings.
Consequently, it is difficult to find fault with the finding by the learned
judge below rejecting this particular claim. In any event, the appellant's
cause of action
and locus standi relative to
this claim are
interrelated
issues that should be more clearly determined by the court a quo at the conclusion of the trial.
DISPOSITION
Having regard to all of the foregoing, but subject to what I have stated
above in connection with the truck hire contract, it is reasonably clear that
the appellant has a valid cause of action by virtue of the agreed stated
account upon which his claim for salary and allowances is predicated.
Furthermore, he is entitled to payment of the amounts claimed in the absence of
countervailing evidence in rebuttal from the respondent. It follows that the court
a
quo erred in granting absolution from the instance in respect of all
of the appellant's claims without
putting the respondent to its defence.
In the result,
the appeal is allowed with costs and it is ordered that:
1. The
judgment of the court a quo be and is
hereby set aside and substituted with the following:
“The application for absolution
from the instance is dismissed with costs.”
2. The
matter is remitted to the court a quo for
continuation of the trial in this matter.
GWAUNZA JA: I agree.
GOWORA JA: I agree.
Wintertons, appellant's legal practitioners
Ziumbe & Partners, respondent's legal
practitioners
