KUDYA J: The plaintiff, a
former financial director of the defendant company, filed summons on
8 July 2009 seeking payment of the capital sum of US$72,334-00 and
interest at the rate of 10% per annum from the date when the amount
fell due to the date of the issue of summons in the sum of
US$12,658-00, payment of interest on the capital amount at the rate
of 10% from the date of the issue of summons to the date of payment
in full and costs of suit.
The defendant contested the matter.
The plaintiff's cause of action was disclosed in para(s) 3, 4 and 5
of its declaration in these terms:
3. The defendant became indebted to the plaintiff in respect of
arrear salaries and other benefits arising from a contract of
employment concluded between the parties on or about 21 September
2004 that was terminated by the plaintiff's resignation from
employment on 7 March 2007.
4. During the month of April 2007, the defendant partly liquidated
the amount claimed by the plaintiff by delivering to the plaintiff a
motor vehicle and a laptop computer whose agreed values totaled
US$30,000-00.
5. On or about 18 July 2007, the Group Chief Executive Officer of the
defendant, Mr Hamish Rudland acknowledged liability for the sum as at
that date of US$70,000-00 which would attract interest at the rate of
10% per annum.
The defendant raised a plea in bar based on two grounds before
pleading over to the merits. Its plea reads as follows:
1. As appears from plaintiff's
declaration:
1.1 The cause of action is
predicated on a contract of employment concluded by the parties on 21
September 2004.
1.2 The claim is for payment of alleged arrear salaries and benefits
consequent upon resignation.
1.3 The payment of salaries and
benefits during and upon termination of a contract of employment is
governed by the provisions of the Labour Act [Cap
28:01].
1.4 Accordingly and in terms of s89(6) of the Labour Act, this
Honourable Court has no jurisdiction to hear and determine this
claim.
2. Additionally but without
prejudice to the above, the defendant avers that:
2.1 The contract of employment between the parties provided for
payment of salaries and benefits in Zimbabwe dollars, being the
lawful legal tender.
2.2 The plaintiff's claim is denominated in foreign currency,
namely the United States dollars.
2.3 At the material time, the payment of salaries and benefits in
foreign currency without exchange control approval was illegal and
unenforceable by virtue of:
2.3 1. The Exchange Control Act
[Cap 27:05].
2.3.2. Exchange Control Regulations, 1996, SI 110/1996.
2.3.3. The Labour Act [Cap
28:01].
2.4. In the premises, the plaintiff's claim is bad and
unsustainable at law and ought therefore to be dismissed with costs.
In pleading over to para(s) 3, 4 and 5 of the plaintiff's
declaration the defendant denied these averments and put the
plaintiff to the proof thereof and reiterated that the mode of
payment sought was unlawful.
In his replication, the plaintiff averred that his cause of action
was premised on an acknowledgment of debt signed by a representative
of the defendant and not on the terms of employment.
He also averred that the defendant was obliged to obtain the
necessary foreign currency exchange approvals to pay him in foreign
currency using its free funds.
At the pre-trial conference that was held on 8 April 2010, the
following four issues were referred to trial:
(a) whether or not this
Honourable Court and in the light of s89(6) of the Labour Act [Cap
28:01] has
jurisdiction to adjudicate over the dispute between the parties;
(b) whether the contract of
employment between the parties provided for payment to the plaintiff
in United States dollars and the amount thereof;
(c) whether the plaintiff's
claim was lawful at the material time; and
(d) what amount if any is due to
the plaintiff.
The trial in this matter was held on 14 June 2010. The plaintiff
called the evidence of two witnesses and produced a 40 paged bundle
of documents as exh 1.
After the close of the plaintiff's case the defendant elected to
open and close its case without calling any evidence.
My findings of fact are based on those aspects of the evidence called
by the plaintiff that survived cross examination.
The plaintiff holds a Bachelor of Law (Honours) degree from the
University of Zimbabwe (1983) and is a chartered accountant (1988).
He was the Group Financial Director of the defendant from 1 June 2004
until his resignation on 7 March 2007. His contract of employment
with the defendant is covered in pages 2 to 6 of exh 1. The relevant
sections fall under the headings Remuneration and Benefits. I set
them out below.
“3.
REMUNERATION
As remuneration for services rendered, the Contractor shall pay the
contracted person during the subsistence of this agreement the sum of
$21 million per month, payable monthly in arrears. The salary will be
subject to taxation in line with the rules and regulations of the
Zimbabwe Revenue Authority. As you are on a fixed term contract the
company is not liable to pay any further sums of money, which may be
required of you by operation of law. This shall be reviewed every
quarter.
4. BENEFITS
In addition to the salary stated above, you will be entitled to the
following:
4.1 Cimas Medexec Medical Aid for
you and your family.
4.2 Use of a company vehicle and
200 liters per month. Such allowance is for monthly usage and shall
not accrue.
4.3 School fees for two children,
but any change in school requires the authority of the CEO.
4.4 Cafeteria/entertainment
allowance to be agreed annually by CEO.
4.5 Any other amounts will be
deducted from the cafeteria allowance.”
The plaintiff indicated that his claim was based on the contents of
pp7 and 8 of exh 1. It is an e-mail dated 13 July 2006 which the
plaintiff dispatched to himself and copied to his website. It was
signed and dated at the bottom of each page by Hamish Rudland, the
acting chief executive officer of the defendant at the time. The
purported acknowledgment of debt was sandwiched between a set of
seven actions plans on the first page and another set of seven action
plans on the second page. The acknowledgments read:
“HR acknowledges outstanding
balance to KPM of US70K subject to update of figures.
HR acknowledges 10% interest per annum calculated monthly.
HR acknowledges salary US6K per month inclusive of local salary.”
The plaintiff stated that HR referred to Hamish Rudland while KPM
referred to the plaintiff. He stated that the defendant was to
promote a company in Mauritius which would be used as the vehicle to
pay top management in Zimbabwe in foreign currency and pay his
outstanding debt.
It was common cause that the vehicle and laptop were sold to the
plaintiff as indicated in the letter by HR of 10 September 2007 on
p18 of exh 1. He averred that the two items were valued at
US$30,000-00 and abated the outstanding capital sum and interest.
On pages 19 and 20 are the
purported minutes that he wrote on 15 January 2008 of a meeting he
held with HR and the plaintiff's wife in which he recorded inter
alia his demand for
payment of the outstanding debt by Pioneer Corporation Africa (PCA)
and the reluctance to pay by HR until he had received a return on his
investment and an undertaking that payment would be made at a later
date.
He was the only one who signed those minutes.
He also relied on the minutes he authored on 18 March 2009 between
HR, EM Warhurst (EMW) and himself on pp 29-30 of exh 1. They were
signed by EMW and the plaintiff only.
They indicate that PCA owed EWW US$15,000.00 and the plaintiff just
over US$80,000.00. While they show that HR was unwilling to pay the
debt, they record that he had signed the plaintiff's contract of
employment and acknowledgment of debt in July 2006.
Pages 38-39 show that from October 2003 to February 2007 the
defendant was entitled to receive from the plaintiff US$215,000-00 in
salary. He was paid a total of US$157,251-00 between October 2003 and
March 2007. The capital outstanding in salary arrears was
US$57,749-00. The amount due as interest from December 2005 to June
2009 was in the sum of US$26,462-00.
He was cross examined.
He based his claim on an acknowledgement of date of 17 July 2006. The
acknowledgment arose from the failure to pay salaries during the
period extending from October 2003 to February 2007.
He stated that he did not sue the defendant for arrear salaries that
were incurred between October 2003 and July 2006 because during that
period he was a member of the plaintiff's management team.
He accepted that at that time legal tender in Zimbabwe was the local
dollar.
He was referred to s12A of the Labour Act.
He was evasive on whether his claim was founded on a contract of
employment or not. He was evasive on whether payment in United States
dollars was payment in kind or not. He stated that in 2006 there were
no exchange control prohibitions against the payment of salaries in
foreign currency but conceded that during the period of his
employment with the defendant he was never paid in United States
dollars. He further acknowledged that at that time the defendant did
not pay any of its employees in foreign currency.
He said the United States dollar was used to index the payment in
kind in the form of air tickets that he received for holidays outside
Zimbabwe.
He admitted that he could not claim in United States dollars before
February 2009.
He accepted that the e-mail of 18 July 2006 was made when HR had
taken over as the Acting chief executive officer of the defendant but
denied that it was a mere update of the company's affairs and hand
over/take over summary sheet. He said it was not an exchange of
information document but a contract between the plaintiff and the
defendant.
He accepted that it was not in the usual mode of an acknowledgement
of debt that is drawn up by legal practitioners.
He averred that at the time the defendant was obliged to pay him in
the Zimbabwe dollar equivalent of US$70,000.00 at the prevailing
parallel market rate of exchange.
He called Edward Mark Warhurst, a practicing legal practitioner who
at the time was the Group Company Secretary and Managing Director of
Clan Transport (Pvt) Ltd, one of the subsidiaries of the defendant.
Warhurst confirmed the accuracy of the minutes written by the
plaintiff at the meeting of 18 March 2009 found in exh 1. He said HR
sought to refute indebtedness on the basis that the plaintiff had
given poor service to the defendant but he accepted that the
defendant owed the plaintiff arrear salaries in foreign currency for
which it was unable to pay.
He was cross examined.
He was a workmate of the plaintiff during the period 2003 to 2006
when he worked for the defendant. He was owed arrear salaries in
foreign currency for the period September 2005 to August 2006. He was
invited by the plaintiff to the meeting of 18 March 2009 because both
were creditors to the defendant.
He confirmed that his salary was paid in local currency.
It is on the basis of the evidence led that I proceed to determine
the issues referred to trial.
(a)
Whether or not this Honourable Court and in the light of s89(6) of
the Labour Act [Cap 28:01] has jurisdiction to adjudicate over the
dispute between the parties
Mr Moyo,
for the defendant, submitted that this court did not have the
jurisdiction to deal with this matter as it is a labour dispute. The
plaintiff conceded in his replication that were the present matter a
labour dispute he
would have had to file it out of the Labour Court.
It seems to me, notwithstanding that this court is a superior court
imbued with inherent jurisdiction, that all labour disputes must be
dealt with in terms of the relevant provisions of the Labour Act.
It was common cause that s89(6) of the Labour Act ousts the inherent
jurisdiction of this court to hear labour disputes, in the first
instance. Put in other words, the High Court cannot be the first port
of call to any party in a labour dispute.
The dispute, being one of right and not interest would perforce be
dealt with in terms of s93 of the Labour Act by a labour officer who
could refer it to arbitration from whence it would find its way to
the Labour Court.
Mr Magwaliba,
for the plaintiff, submitted that this court had the jurisdiction to
determine this matter because the plaintiff's case was found on an
acknowledgment of debt and not on a contract of employment.
It is correct that in our law, an
acknowledgment of debt can found a cause of action. See Chimutanda
Motor Spares (Pvt)
Ltd v
Musare & Anor 1994
(1) ZLR 310 (H) at 311G; Gondwe
v
Bangajena 1988 (1) ZLR
1 (H) at 2A and Salisbury
Municipality v
Partington & Anor
1961 (3) SA 218 (SR) at 222A.
Mr Moyo
contended that the plaintiff pleaded his cause of action as the
contract of employment. He argued that reference to an acknowledgment
of liability by the defendant's acting chief executive officer in
the declaration did not shift the cause of action to that of an
acknowledgment of debt. He further contended that the document
purported by the plaintiff to be an acknowledgment of debt was merely
an update of the company's affairs and a hand over/take over sheet.
Mr Magwaliba
contended that the statements sandwiched between other unrelated
action plans constitute an acknowledgment of debt. His contention
appears to be borne out by the sentiments expressed by McNALLY J in S
v Manyere 1984 (1) ZLR
104 (H) at 107 C to the effect that an “I owe you” left in a cash
box would constitute an acknowledgment of debt.
It is correct that the defendant did not call evidence to dispute the
facts set out by the plaintiff and his witness or offer an
alternative version of events.
It is also correct that subsequent to the acknowledgement of debt two
sets of minutes were written by the plaintiff that the defendant's
acting chief executive officer refused to sign which show that he
acknowledged the defendant's indebtedness to the plaintiff in the
amount claimed. Again, the plaintiff's version was supported by
Warhurst, who was a forthright and credible witness.
It seems to me, notwithstanding
the failure by the defendant to lead evidence, that Mr Moyo's
contention that the plaintiff's cause of action was predicated on a
contract of employment is correct.
In my view, paras 4 and 5 of the plaintiff's declaration are
explanatory averments of how he arrived at the capital sum and
interest claimed. The legal foundation of the claim lies in the
contract of employment. Para 3 of the declaration is the basis of the
plaintiff's claim.
I understand him to be averring that the debt for which he seeks
redress arose from unpaid salary arrears.
This is confirmed in the further particulars supplied by the
plaintiff as read with the information supplied to the defendant's
chairman on pages 31 to 39 of exh 1 in which he collated the
outstanding salaries from October 2003 to February 2007 and
outstanding interest due from December 2005 to June 2009.
The failure by the defendant to plead that his claim was based on an
acknowledgment of debt executed on 18 July 2006 further confirms that
he found his claim on unpaid arrear salaries. Accordingly, I uphold
the exception raised by the defendant and dismiss the plaintiff's
claim on the basis that this court lacks the jurisdiction to
determine the matter by virtue of the provisions of s89(6) of the
Labour Act.
However, in the event that I am wrong, and the cause of action was
properly pleaded in terms of para 5 of the declaration, I proceed to
deal with the other issues that were referred to trial.
(b)
whether the contract of employment between the parties provided for
payment to the plaintiff in United States dollars and the amount
thereof
The plaintiff confirmed in his testimony that the contract of
employment did not provide for payment in United States dollars or
any foreign currency. He alleged that payment in United States
dollars was incorporated as a cafeteria benefit. He agreed that the
contract did not delineate the United State currency as the currency
of account for the cafeteria allowance. He did not produce a document
in writing and signed by both parties to demonstrate that the
contract of employment was varied as contemplated by para 14 of the
contract of employment. The second issue is determined in favour of
the defendant.
(c)
whether the plaintiff's claim was lawful at the material time
The time referred to is the period from October 2003 to 7 March 2007.
Mr Moyo
submitted that it was unlawful at the time for a Zimbabwean
registered company to pay its employees in foreign currency for work
performed in Zimbabwe without exchange control authority. He relied
on the provisions of s4(1)(a)(ii) of the Exchange Control Regulations
SI 109/96.
Mr Magwaliba
submitted that the exchange control legislation was not violated by
an agreement to pay a salary in foreign currency to the plaintiff in
Zimbabwe for work done in Zimbabwe. He relied on a case in which the
claim was based on an acknowledgment of debt that the defendant did
not sign but was reduced to writing by the plaintiff's legal
representative which reflected the terms of the oral agreement
reached of Macape (Pty)
Ltd v
Executrix Estate Forrester
1991 (1) ZLR 315 (SC) at 320B-C where McNALLY JA dealing with ss7 and
8 of the Exchange Control Regulations 1977 the precursor to the
present ss10 and 11 of the Exchange Control Regulations 1996 stated:
“The essential point to be
noted is that there is a clear difference between ss7 and 8. The
former proscribes only the actual payment. The latter proscribes both
payment and the underlying agreement to pay.
In other words, when one is
concerned with payments inside
Zimbabwe it is
perfectly lawful to enter into the agreement to pay. But, without
authority from the Reserve Bank, the actual payment may not be made.
By contrast, when dealing with payments outside
Zimbabwe, it is
unlawful even to enter into the agreement to pay, without first
obtaining the authority of the Minister, whose powers have been
delegated to the reserve Bank.”
The case dealt with the payment in local currency in Zimbabwe of a
foreign resident by a Zimbabwean resident.
The facts in Macape,
supra, differ with
those in the present case in that in the former case payment was made
by a local resident for the account of a foreign resident in local
currency. In present case a local resident was to pay another local
resident in foreign currency. The former concerned an outflow of
foreign currency while the present matter concerned the in flow of
foreign currency.
It seems to me that the payment of an employee's salary in foreign
currency, at the time, would have contravened s4(1)(a)(ii) of the
Exchange Control Regulations.
Both CHINENGO J and GOWORA J held
in separate cases of Jumvea
Zimbabwe Ltd & Anor v
Matsika 2003
(1) ZLR 71 (H) at 74G and Gambiza
v
Tavaziva HH109-08 at
p4 of the cyclostyled judgment, respectively, that payment of foreign
currency whether inside or outside Zimbabwe would amount to an
exchange and thus be in violation of s4(1)(a)(ii) of the Exchange
Control Regulations.
In the present case the defendant did not make any payment but
entered into an agreement to pay.
Mr Magwaliba
was therefore correct that such an agreement was not prohibited by
the exchange control regulations.
This is what McNALLY JA had in
mind in the Macape
case, supra,
when he said at p 321A-B:
“The contract to pay is lawful.
Actual payment in pursuance of the contract is unlawful, without
permission. There is no reason why the court should not order
payment; subject to the condition that authority is obtained. I must
make it clear that this judgment in no way inhibits the Reserve bank
in the exercise of its discretion. It is entirely for the Reserve
bank to decide whether or not to authorise the payment. If it decides
not to do so the payment may not be made. The contract remains
lawful. Payment will then have to await a change either in the law or
in the policy of the Reserve Bank.”
I hold that the contract to pay the plaintiff in foreign currency did
not contravene any exchange control regulations.
Mr Moyo
further contended that payment in foreign currency contravened
s12A(1) of the Labour Act. Mr Magwaliba
countered by arguing that s12A(2) allowed for the payment of
employees in foreign currency.
Section 12A(1) and (2) read:
“12A Remuneration
and deductions from remuneration
(1) Remuneration payable in money shall not be paid to an employee by
way of promissory notes, vouchers, coupons or in any form other than
legal tender.
(2) Remuneration may be payable in kind only in industries or
occupations where such payment is customary, and shall be subject to
the following conditions —
(a)
any such payment shall be appropriate for the personal use and
benefit of the employee and the employee's family;
(b)
the value attributed to such payment shall be fair and reasonable;
(c)
equipment or clothing required to protect the health and safety of
the employee shall not be computed as part of the remuneration of the
employee;
(d)
no payment shall be made in the form of liquor or drugs;
(e)
remuneration in kind shall not substitute entirely for remuneration
in money.”
Mr Moyo
argued that at the time of employment legal tender was constituted by
local banknotes and coins. He submitted that though foreign currency
was money, at the time, it was not legal tender in Zimbabwe.
Mr Magwaliba
did not controvert
this argument.
Rather, he ingeniously contended that the fact that the Exchange
Control (Payment of Salaries by Exporters in Foreign Currency for
Critical Skills Retention) Order SI 127/2008 introduced for the first
time the need for an exporter to seek exchange control authority to
pay salaries in foreign currency showed that the payment of salaries
in foreign currency was not proscribed before its promulgation. He
went on to argue that as this subsidiary legislation did not have
retrospective effect, it did not affect the plaintiff whose contract
of employment ended in March 2007.
I, however, agree with Mr Moyo's
rebuttal that the introduction of SI 127/08 into our law was the
first inroad made against the restrictive provisions of s12A(1)
against the payment of salaries in any currency other than local
currency.
Subsections (1) and (2) of s12A
of the Labour Act,
supra, recognize the
payment of remuneration in cash or in kind.
Subsection (1) restricts those employers who remunerate their
employees in money to the use of legal tender to the exclusion of
other modes of payment such as promissory notes, vouchers, coupons or
any form other than legal tender.
I understand the phrase 'any form other than legal tender' to be
of wide application.
In my view, it restricts payment to the use of legal tender and
excludes payment in kind or money that is not legal tender.
Subsection (2) permits employers who are in occupations or industries
that customarily pay remuneration in kind to do so.
Paragraph (e) of subs (2) of s12
puts it beyond doubt that remuneration in kind is not the same as
remuneration in money. This same paragraph, in my view, is clear
prove that in the mind of the legislature legal tender in s12A(1) was
another euphemism for money. See Rhodes
Motors (Pvt)
Ltd v
Pringle-Wood NO 1965
(4) SA 40 (SRA) at 42D where legal tender is considered and treated
as money; S v
Zakana 1976
(2) SA 248 (R) where SMITH J by reference to The Shorter Oxford
English Dictionary defined legal tender to be inter
alia “the money of a
country in actual use.'”; and McNALLY JA in S
v
Bennett-Cohen 1985 (1)
ZLR 46 (SC) at 51B defined legal tender as currency or money. The
same LEARNED JUDGE OF APPEAL in S
v
Mafarachisi 1990 (1)
ZLR 118 (SC) at 121E approved the definition by Cowen in The
Law of Negotiable Instruments in South Africa
5ed vol I at p47 that legal tender was “the medium legally
authorised by the State for the payment of debts.”
Mr Moyo's
submission that foreign currency did not constitute legal tender at
the time of the plaintiff's contract of employment with the
defendant is borne out by the views of textbook writers and case law.
The definition of legal tender is provided by Mann in The
Legal Aspect of Money
4th
ed at p41 in these words:
“Legal tender is such money in
the legal sense as the legislator has so defined in the statutes
organizing the monetary system. Chattels which are legal tender have,
therefore, necessarily the quality of money, but logically, the
converse is not true,--- not all money is necessarily legal tender.
The question what money is to be considered legal tender is usually
answered by the statutes organizing the monetary system”.
Again at p186 the learned author states:
“Where these principles lead to
foreign money being regarded as money, the conclusion is in no way
affected by the established rule that foreign money is not legal
tender, for not all money is legal tender, but all legal tender is
money. Legal tender is such money as is 'current coin of the
realm'. This does not mean more than that foreign money cannot be
tendered in discharge of a debt to pay pounds sterling, but it does
not touch the question of the manner of discharging in England a debt
expressed in foreign money.”
Willis in Banking
in South African Law
Juta 1981 at p200 observes that in terms of the SA Mint and Coinage
Act 75 of 1964 the South African Reserve Bank has the power to issue
and make bank notes and coins and that these coins and banknotes
constitute legal tender in South Africa. At p191 Willis confirms that
in South Africa foreign money is not legal tender. He writes:
“The definition of foreign
currency has since been amended to mean 'any currency which is not
legal tender in the Republic'”.
Christie in The
Law of Contract in South Africa
3rd
ed at p458 is in agreement with the observations made by Willis.
Morse in Vol 1 of A
Treatise on the Law of Banks and Banking
3rd
ed (1888) at para 312 at p536 recognizes the sovereign right of every
state to define what is legal tender within its jurisdiction in these
words:
“The right of the depositor is
not, however, necessarily to the gold or silver coin of the country;
but only to such money as is by the law of the land legal tender at
the time.”
In Vol 2 in para 447 at p736 the learned author defined legal tender
in these words:
“At present, in our country,
the treasury notes of the United States have been made by Act of
Congress a legal tender, and payment, or offer of payment, in them
satisfies the duty of the bank; though it has bound itself by a
specific agreement to pay in gold or silver coin”.
And in para 637 at p 978 he wrote:
“Bank bills are not money, in
the strict sense of the term; that is to say, they are not legal
tender, even to pay debts due to the bank itself.”
The textbook writers have equated legal tender with currency and
noted that what constitutes legal tender in any country is governed
by the legislation of that country.
In Zimbabwe the term is used,
inter alia,
in s12A of the Labour Act, supra;
s41(1), 42(1), 44(2) and s44A of the Reserve Bank of Zimbabwe Act
[Cap 22:15],
and in the definition sections of the Balance of Payments Reporting
Act [Cap 22:16]
(Act No. 4/2004) and the Exchange Control Regulations SI 109 /1996.
At the time the acknowledgment of debt was entered into the legal
tender for the payment of salaries in Zimbabwe was local currency and
not foreign currency. The defendant could not under s12A(1) of the
Labour Act agree to pay the plaintiff in foreign currency.
That the plaintiff was aware that it was unlawful is shown by his
failure to invoke the provisions of s13 of the Labour Act for the
payment of the purported arrear salaries when he left employment; and
his failure to write into the terms of his contract of employment
payment of part of his salary in foreign currency.
Formal acknowledgments of debt
that are usually prepared by legal practitioners contain renunciation
clauses such as the one highlighted by YOUNG J in Caltex
(Africa) Ltd v
Trade Fair Motors (Pvt)
Ltd & Anor 1963
(1) SA 36 (SR) at 36H like non
numeratae pecuniae,
non causa debiti,
errore calculi,
revision of accounts, de
duobus vel pluribus reis debendi.
There were no such renunciation clauses in the acknowledgment of debt
in issue.
In Macape's
case, supra,
at 321G McNALLY JA held that a court could go behind the making of an
acknowledgment of debt to test its legality. He stated that:
“There is no evidence before
the court to show that the underlying cause of the acknowledgement of
debt was illegal, and the acknowledgment itself was not illegal.”
I am satisfied that the
underlying cause of the acknowledgment of debt that was relied upon
by the plaintiff was illegal. A court cannot enforce an illegal
contract. See Dube v
Khumalo
1986 (2) ZLR 103 (SC) at 109D.
There are other features of the case which were revealed by the
plaintiff during cross examination which militate against the
enforcement of the acknowledgment of debt against the defendant.
(i) The first was that he was
never paid in foreign currency during his time of employment but was
paid a salary in local currency that was indexed to the United States
dollar at the parallel rate of exchange to preserve the purchasing
power of the local currency.
The acknowledgment of debt that was executed erroneously referred to
the currency of indebtedness as the United States dollar. The
acknowledgment of debt therefore told a lie about itself.
(ii) The second disquieting
feature was that the plaintiff averred that he was to be paid in
foreign currency by an offshore sister company to the defendant
called PXL that was to be set up in Mauritius in which the
defendant's acting chief executive officer would have an interest.
He did not disclose whether this company was ever set up.
It seems to me that he should have sought payment from that company
rather than the defendant.
I determine the third and fourth issues referred to trial in favour
of the defendant.
Accordingly, it is ordered that:
1. The exception raised by the
defendant be and is hereby upheld.
2. The plaintiff's claim be and
is hereby dismissed.
3. The plaintiff shall pay the defendant's costs of suit.
Magwaliba & Kwirira, plaintiff's legal practitioners
Kantor & Immerman, defendant's legal practitioners
