Daisy Mhlanga v Zimasco

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/55/25
HELD AT HARARE 29TH OCTOBER 2024
CASE NO. LC/H/766/24&757/24
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 29TH OCTOBER 2024

AND

JUDGMENT NO LC/H/55/25

CASE NO. LC/H/766/24&757/24

In the matter between

DAISY MHLANGA	APPELLANT

And

ZIMASCO	RESPONDENT

AND

ZIMASCO	APPELLANT

And

DAISY MHLANGA	RESPONDENT

BEFORE THE HONOURABLE E. MAKAMURE , JUDGE.

FOR THE APPELLANT : A.MOYO

With him G.Sithole

FOR THE RESPONDENT . S. HASHITI

With him M. Masuku

MAKAMURE J:

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[1]In this matter the parties were aggrieved by a determination made by an arbitrator. An appeal and a cross appeal were therefore respectively noted.

[2] The Court made an order granting the appeal with costs and dismissing the cross-appeal with costs with reasons to follow. The following are the reasons and full order.

[3]Preliminary issues which the parties sought to raise were abandoned at the commencement of the hearing.

[4]This matter arose out of the employer’s (respondent’s) internal memorandum (‘the memo’)to the employee (appellant) on the 24th of August 2023. The memo was couched along the following terms and I quote:

‘…..

DATE :24th August 2023

SUBJECT: RESTRUCTURING

…………………………………………………………………………

Following the restructuring of the Finance Macro, the position of Group Treasury Manager , which you occupy , has become redundant.

In view of this , the organisation has decided to offer you an available position of Internal Auditor at Hay Grade L . You will move to this position with immediate effect.

In the alternative , the company is also open to consider retrenchment in terms of the labour legislation guidelines.

Please revert to me on your decision.

Regards

(Signed)’

[5]The appellant responded, and part of her response reads as follows:

‘1.First and foremost , the finance department did not go through a restructuring as there was no communication received by myself as an employee to that effect . Under normal circumstances when a company restructures this process is formally communicated to all employees in that department and timelines communicated as to when the exercise will be completed and once completed employees are advised . Further to this the outcome of the process is communicated to all employees and positions that are made redundant by this process are also determined and communication is done to the respective employees and an exit strategy proposed of which none of this took place.

2…

3.Thirdly , I was made to do a handover takeover to an employee that was recruited in June 2023 who took over my portfolio and came with a new title.

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4. Fourthly , having noted the above according to your letter the organisation has offered me a position two grades lower than my current grade which to me is a demotion….

…. As far as compensation is concerned I would be happy to receive a once off payment in full and final settlement of USD300 000.00. I would also expect the company to pay my salary and benefits at my current level until negotiations are complete.’

[6]After the above communication the parties engaged each other but failed to reach an agreement. On 4th October 2023 parties signed an agreement to terminate the appellant’s employment as follows:

‘MEMORANDUM OF MUTUAL AGREEMENT TO TERMINATE EMPLOYMENT

An agreement is hereby entered into between

(the Parties)

1. The parties agree to the termination of the employment contract of the Employee and payment of a separation package to the Employee.

2. The parties agree that whilst they are in agreement on the termination of the employment relationship between them and payment of a separation package to the employee, they have failed to agree on the quantum thereof.

3. Parties agree that the exchanges which were being made since the first meeting were on a without prejudice basis on either side . As such neither party shall be bound to such exchanges , except as stated herein , which exchanges remain privileged information of each party.

4. Notwithstanding paragraph 3 above and having failed to agree on the quantum of the separation package payable to the employee, the parties agree to submit themselves to arbitration for the purpose of quantification of the separation package by an Arbitrator nominated by the Commercial Arbitration Centre. The effective date of termination will be the date of the award by the Arbitrator.’

[7]The respondent’s legal practitioners proceeded to refer the matter to the Commercial Arbitration Centre. An Arbitrator was duly appointed. In their letter of reference, the respondent ,among other things, indicated in paragraph 2 of their letter that: ‘2. We advise that Daisy Mhlanga was employed by Zimasco as the Group Treasury Manager . As part of a restructuring exercise, Zimasco disbanded the position of Group Treasury Manager and communicated this change to Daisy Mhlanga and proceeded to offer her the position of Internal Auditor. Daisy Mhlanga did not accept the new position and opted to terminate the employment contract through a mutually negotiated settlement instead.

…

…’

[8]The appellant wrote the Commercial Arbitration Centre objecting to the contents of paragraph 2 referred to above and stated that:

‘2. I however wish to bring to your attention that I am not in agreement to the details outlined in paragraph 2 of their letter. As far as I am concerned there was no

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restructuring conducted nor communicated to myself by ‘Zimasco’. Secondly , according to an internal memorandum attached dated 24th August 2023 , I was offered a lower grade job which I refused to accept. Please refer to the attached memorandum for details.’(Emphasis added).

[9]The respondent on 6th November 2023 withdrew the matter from the Commercial Arbitration Centre. On 8th November 2023 the respondent wrote the appellant terminating her employment on three months’ notice and asked her to stop reporting for work with effect from 10th November 2023. After receiving the letter terminating her employment with the respondent, the appellant approached a labour officer raising the issue of unlawful termination of employment. Conciliation failed and a certificate of no settlement was issued. The matter was referred to compulsory arbitration. Seven issues were identified as terms of reference for the arbitrator. The parties engaged each other further after conciliation and curtailed the seven terms of reference. They signed a ‘Joint Pre- Arbitration Minute’ (the Minute)which reads:

‘WHEREAS :

A. The Employer terminated the Employee’s contract of employment on notice on 10 November 2023 following the parties’ failure to agree on a retrenchment package,

B. The Employee lodged a complaint of unlawful termination of the contract of employment with the Ministry of Labour , Public Service and Social Welfare culminating in the matter being referred to this Tribunal for compulsory arbitration,

C. At conciliation, the parties agreed on seven (7) terms of reference attached to the reference to arbitration form,

D. The parties have engaged with a view to curtail the arbitration proceedings and have agreed to narrow down the issues for determination on the following terms and conditions,

NOW THEREFORE , THE PARTIES HAVE AGREED AS FOLLOWS:

1. Pending a determination of this matter, the Employee shall be paid her full salary and benefits reckoned from 10th November 2023 to the date of completion of these arbitration proceedings. The payments shall be processed starting the month of February 2024 when the employer processes its pay roll.

2. The parties have abandoned the terms of reference agreed to at conciliation and now require the Arbitrator to determine only one new term of reference, namely the quantum of the retrenchment/ separation package to be paid to the Employee.

3. The parties shall file their written submissions in accordance with the following filing time table:

3.1 to 3.4…

4. The Arbitrator shall endeavor to render an arbitral award on the quantum of the retrenchment /separation package by 31 March 2024.

5. If either party is not satisfied with the ruling of the Arbitrator , they can exercise their right of appeal to the Labour Court.’ (My underlining for emphasis).

Parties signed this Pre -Arbitration Minute on 15th February 2024.

[10]On 20th February 2024 the respondent’s legal practitioners wrote the appellant’s legal practitioners indicating that they wanted to correct the contents of the Minute. The appellant

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through her legal practitioners resisted the suggested correction and suggested that there was need for progress in the matter and that any issues could be resolved through submissions and at the hearing. Parties thereafter appeared before the Arbitrator who heard the matter .

[11] Before the Arbitrator the Appellant claimed the total of US$222 189, 00 plus salaries and based on the termination date of 10th November 2023. The respondent on the other hand argued that the employee’s claim should be dismissed or alternatively that the Arbitrator “should calculate the employee’s package in terms of the recently repealed formula of 2 weeks salary for each year of service to give a total of US$25 615.63 for service pay and 3months’ notice pay”.

After considering what was placed before her the Arbitrator determined that it would take the appellant thirty (30) months to secure alternative employment. Thereafter the following order was made:

‘ I therefore order ZIMASCO (Pvt) Ltd to pay Daisy Mhlanga the sum of US$55 620. 00 and RTGS 235 706 340.00 as a separation package. ZIMASCO should also pay the claimant salaries and benefits for the period from the 4th of October 2023 to the 20th of June 2024 (date of this award) in terms of paragraph 4 of the mutual agreement to terminate employment . The RTGS component should be converted to ZiG at official bank rate.

This award should be implemented within thirty (30) days from the date of its issue.’

[12]Both parties were aggrieved by the award , as already indicated. An appeal and a cross-appeal were therefore filed. I will deal with them in turn.

S12C (1)of the Labour Act , Chapter 28:01 (the Act) defines ‘retrench’ 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, reorganising 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;’

[13] From the foregoing it appears that parties never agreed upon separation at all. Rather the appellant resisted the efforts of the respondent’s restructuring exercise. She declined the offer by the respondent for her to occupy the position of Internal Auditor. She indicated that this position was two grades below the position she occupied. The respondent did not challenge the fact that the position which it had offered the appellant was two grades lower than the position which she used to occupy.

The above facts show that the subsequent arbitration arose out of the restructuring exercise which was embarked upon by the respondent. Parties were thus managing their failure to agree.

[14]Before this Court the parties in making their addresses dealt with both the appeal and the cross-appeal.

Mr Moyo who represented the employee (appellant / respondent )outlined the history of the case . He argued that the Arbitrator was supposed to deal with the term of reference that was before her. Instead the Arbitrator went on to consider the termination of 4 October 2023 instead of the employer’s letter of 8th November which led to the compulsory arbitration. He

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submitted that the award does not accord with the Pre-Arbitration Minute It was submitted that the employee was entitled to a retrenchment package as opposed to damages. Mr Moyo drew the Court’s attention to the fact that at the material time there was a lacuna in the retrenchment provisions in the Act in that there was no minimum retrenchment package. In view of this it was argued that in computing the retrenchment package regard had to be had to the common law and precedent by the employer in similar cases. The use of repealed provisions of the Act was resisted. With respect to the restructuring of the respondent organisation, Mr Moyo submitted that it was not done due to incapacity to pay and prayed that the appeal succeeds and the appellant be awarded the amount as claimed.

[15]With respect to the cross appeal Mr Moyo argued that after the respondent had withdrawn the matter from the Commercial Arbitration Centre the respondent proceeded to terminate the employee’s employment contract . Thereafter parties engaged each other leading to the signing of the Minute. Under the circumstances of the present matter the employee had to be paid a retrenchment package. Mr Moyo addressed the issue raised on behalf of the employer on the production of the employee’s pay slip and said that it was produced at the request of the Arbitrator.

[16]Mr Hashiti who appeared on behalf of the employer argued that the Arbitrator did not resolve the issue of what was due to the employee as no evidence was led. It was submitted that since the Arbitrator did not resolve this issue the Court could not determine what the Arbitrator did not determine. Mr Hashiti further argued that a wrong formula was used by the Arbitrator so the Court cannot hear the dispute. On the use of precedent, it was submitted that it was necessary to consider whether the past circumstances were similar to what is now under consideration. Mr Hashiti moved that both the appeal and cross appeal be allowed and the matter be remitted and be dealt with by a different arbitrator.

[17]In response Mr Moyo pointed out that the employer’s prayer was dismissal and not remittal. It was further submitted that the question of formulae to use was debated before the Arbitrator but that this was considered in a wrong way by the Arbitrator hence the appeals.

[18]Both parties referred the Court to authorities for which the Court is grateful.

The Appeal

[19]The following are the grounds of appeal:

‘1.The Arbitrator erred in law in finding that the contract of employment between the parties was terminated by mutual agreement contrary to the parties’ agreed position as per their Joint Pre -Arbitration Agreement.

2.Consequently , the Arbitrator erred in law in failing to award a retrenchment package as prayed for by the Appellant.

3.It being common cause that the parties had failed to agree on the quantum of the retrenchment package, the Arbitrator erred in law in applying the formula for calculating damages in lieu of reinstatement instead of a retrenchment package in her quantification of the package payable to the Appellant.’

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[20]It is clear that the employee lost her job due to restructuring of the respondent organization. The respondent did not follow retrenchment procedures as provided for in the Act. At the time that the dispute between the parties arose the Act did not provide a minimum retrenchment package. This is said in view of the provisions of s12C(2)&(3) which provide:

‘(2) Unless better terms are negotiated and agreed between the employer and the employee or employees concerned or their representatives—

(a) a minimum retrenchment package shall be payable by the employer as compensation for retrenchment not later than days from the date on which the retrenchment takes effect, unless the affected employees agree to a longer or shorter or staggered period of payment of the package; and

(b) if the employees concerned or their representatives, having alleged that the employer has the capacity to pay an enhanced retrenchment package, and having satisfied the Retrenchment Board to that effect, the enhanced retrenchment package shall be payable with effect from the notification of the Retrenchment Board’s decision.

(3) An employer who intends to retrench any one or more employees or has negotiated with his or her employees a retrenchment package better than the minimum retrenchment package (hereafter called the “agreed retrenchment package”) shall—

(a) give fourteen days written notice—

(i) of the intention to retrench in the absence of an agreed retrenchment package to the works council established for the undertaking or, if there is no works council established for the undertaking concerned or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry; and

(ii) of such intention or the agreed retrenchment package, as the case may be, to the Retrenchment Board; and

(iii) of the intention to retrench in the absence of an agreed retrenchment package to the employee or employees concerned;

(b) in the absence of an agreed retrenchment package, provide the works council or employment council, as the case may be, and the Retrenchment Board with details of every employee whom the employer wishes to retrench and of the reasons for the proposed retrenchment.’

[21]In the present matter the respondent advised the appellant that her position had been made redundant by the restructuring exercise that it had undertaken or was undertaking . It did not however follow through the provisions of the Act.

In NEI Zimbabwe (Private) Limited v Zane Brown and Ten Others SC84/04 (NEI Zimbabwe) the Supreme Court had this to say on the definition of retrenchment:

‘It is also clear from the wording of section 2 that retrenchment is termination of employment in clearly defined circumstances. That is to say retrenchment means termination of an

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employee’s employment for the purpose of reducing expenditure or costs. The termination of employment in casu was not for the purposes of reducing expenditure or costs. Retrenchment also means termination of employment for the purposes adapting to technological change. Again, termination in casu had nothing to do with technological change.  Retrenchment can also be effected for the purposes of reorganizing the undertaking in which the employee is employed.’ (My underlining for emphasis).

[22]In the present case the respondent indicated that it was ‘restructuring’. ‘ Restructure’ is defined in the Oxford Advanced Learner’s Dictionary International Student’s Edition, 7th Edition as ‘ to organize something such as a system or a company in a new and different way.’ This in view of the facts, is what happened to the respondent organisation .This is confirmed by the appellant in her memorandum in response to the respondent’s memorandum of 23rd August 2023, in which the appellant indicated that she had handed over to another person who held a different title. This means that the respondent indeed conducted a restructuring exercise or had reorganized itself. The argument on behalf of the respondent that there was no restructuring is therefore not sustainable. Further as soon as the respondent had indicated that the appellant’s position had become redundant, the appellant disagreed that there had been any restructuring at all . She declined the offer by the respondent of a position lower than what she held. Thereafter both parties commendably engaged each other. However, they failed to reach an agreement particularly on the quantum to be paid to the appellant. The matter was referred to the Commercial Arbitration Centre, the appellant challenged the jurisdiction of arbitrator. Thereafter and before filing its submissions, the respondent withdrew the matter from the Commercial Arbitration Centre. It was after this that the respondent wrote the appellant terminating her employment. This resulted in the matter being referred to a labour officer for unlawful termination of a contract of employment and thereafter to compulsory arbitration. As a requirement of the s93 of the Act, conciliation is done and where parties fail to agree a certificate of no settlement is issued, which shows terms of reference to guide the arbitrator. In the present matter the terms were as agreed by the parties in the Pre-Arbitration Minute. Those terms of reference have been noted above.

[23]What the above shows are the stages of disagreement which parties had to deal with. With this background, I am of the view that there was no mutual agreement between the parties to terminate the contract of employment as such. However , parties were eager to conclude the matter. After conciliation they engaged each other to the extent that while initially there seven (7)issues to be arbitrated on , they reduced them to only one as reflected in the Joint Pre- Arbitration Minute. In my view had parties from the beginning decided to part ways and agreed on the separation package or had they agreed to part ways but failed to agree on the separation package, I would consider that to be mutual agreement to terminate the contract or to separate. In the present matter the situation forced the parties to find the best way to have the separation or retrenchment package determined in the face of the appellant having been forced to take a lower post or agree to retrenchment/separation. In Ruturi v Heritage Clothing (Pvt )Ltd 1994 (2) ZLR 374(S)(Ruturi) the Supreme Court had this to say about mutual agreement:

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‘ In the context, the use of the word “mutually” is significant. It underlines the requirement that the assent of the parties to the termination of employment must appear ex facie the document. Put otherwise, that without the need to go beyond or outside the document the existence of an agreement to terminate is reflected. The document must stand on its own feet. It must constitute the sole permissible evidence of termination .’

In ZFC Limited v Furusa SC15/18 the Supreme Court stated that:

“Compromise, or transactio, is the settlement by agreement of disputed obligations, whether contractual or otherwise. If any offer to settle in particular terms is not accepted, the offeree cannot treat an inseparable part of the offer and sue on it. Even a criminal charge may be settled by the process known as plea bargaining and the resulting compromise will be enforceable. It is a form of novation differing from the ordinary novation in that the obligations novated by the compromise must previously have been disputed or uncertain, the essence of the compromise being the final settlement of the dispute or uncertainty.”

What is derived from the above definition is that a compromise is a settlement of a disputed obligation through another agreement which then replaces the principal agreement. In casu, the appellant accepted the deed of surety signed by Lazarus Nyakudya but did not cancel the first deed executed by the respondent. Consequently there was no compromise because as already highlighted, the appellant had to cancel the deed of suretyship in writing to make it valid. That this is a correct reflection of the true status between the parties is borne out by the evidence of the respondent himself and Nyakudya.’

[24]In the present matter clearly ,there was no mutual agreement to terminate the contract as envisaged in the Ruturi case (above).The parties did not agree from the beginning. Special note should be taken of the employee’s letter to the Commercial Arbitration Centre objecting to the contents of the employer’s letter. The facts also show that while the employer had terminated the employee’s contract of employment the subsequent engagements changed the date from which the termination was to be considered to have happened. I therefore hold view that the Arbitrator fell into error by making a finding that the contract of employment between the parties was terminated by mutual agreement. I therefore find that there is merit in the first ground of appeal.

[25]Since the appellant lost employment due to the restructuring exercise by the respondent, retrenchment procedures ought to have been followed . They were not. However ,it is not in dispute that at the time of the appellant’s retrenchment, the Act did not have a minimum retrenchment package as the provisions of the Act show above. The appellant through her legal practitioners computed the retrenchment package on the basis of precedent. I find this to be equitable under the circumstances. This is consistent with the purpose of the Act ,that is , among other things ‘ 2A….to advance social justice and democracy at the workplace by-…(f) securing the just , effective and expeditious resolution of disputes and unfair labour practices ’.

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The submission on behalf of the respondent was that repealed provisions of the Act ought to have been followed to compute the appellant’s package if at all the appellant was to be awarded any amount otherwise the claim ought to have been dismissed. The respondent computed the amount due to the appellant in terms of repealed provisions of the Act. The use of repealed provisions of a statute is inappropriate. Andrew Ranganai Chigovera v Minister of Energy and Power Development and Another SC115 /21.However there was an appreciation that the appellant was retrenched . This means that the Arbitrator ought to have used a formula for retrenchment in calculating what was due to the appellant. Further the parties having signed the Pre -Arbitration Minute , that minute cancelled the previous termination and the computation was to be in terms of the date as agreed in that Minute which is the 10th November 2023.ZFC v Furusa (above).I therefore find merit in the second ground of appeal. The issue raised in the third ground is much the same as what was raised in the 2nd ground. Since there is merit in the 2nd ground , I also find merit in the 3rd ground of appeal on the same basis as I did with respect to that ground .

In view of the foregoing the appeal succeeds.

[26]It was in view of the foregoing that the following order was made:

THE APPEAL BE AND IS HEREBY GRANTED WITH COSTS.

The full order is as follows:

1.THE APPEAL BE AND IS HEREBY GRANTED WITH COSTS.

2.The arbitral award handed down by the Arbitrator Ms M Dare , dated 20June 2024 be and is hereby set aside and substituted with the following:

“ The employer ,ZIMASCO (Pvt) Ltd , be and is hereby ordered to pay to the Employee, Mrs Daisy Mhlanga , the following:

(i)Full salary and benefits reckoned from 10 November 2023 to the date of finalization of the matter.

(ii)Payment of a retrenchment package in the sum of US$222 189.00 (Two hundred and twenty-two thousand one hundred and eighty-nine United States Dollars ).

(iii) Re-imbursement of all legal costs incurred by the employee.”

The Cross-Appeal

[27]The following are the grounds of (cross -)appeal.

‘1. The arbitrator aquo erred at law in disposing of a contested issue of fact ,namely the applicable period of compensation in the calculation of damages due to the respondent, in the

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absence of any evidence when the law requires the leading of evidence to resolve the contested issues of fact.

2.The arbitrator aquo erred at law in relying on evidence , in the form of a pay slip when contrary to the law, the said evidence was furnished by the respondent after the hearing of the matter and was considered by the arbitrator without affording the appellant an opportunity to rebut it.

3. The arbitrator seriously misdirected herself on the facts in finding that the respondent requires 30 months to find suitable alternative employment in the absence of a prayer to that effect from the respondent and in the absence of sufficient evidence from the respondent on the period she would require to find suitable alternative employment.’

[28]It is my view that the separation was a result of the restructuring which the employer did. That amounted to retrenchment. NEI Zimbabwe (above) What was therefore supposed to happen was for the Arbitrator to assess a retrenchment package for the appellant. It is appreciated that the appellant might not find employment of the same level quickly, however the manner in which the parties separated was due to the restructuring exercise which the employer undertook. It is for that reason that the employee lost employment. Thus ordinarily, the Arbitrator ought to have been guided by the provisions of the Act on retrenchment. It is however common cause that the Act in its form at the time of separation of the parties did not have a minimum package for retrenchment. This means that the Arbitrator ought to have been guided by precedent . In the result the Arbitrator fell into error when she calculated the package as damages in lieu of reinstatement.

[29] An attack is directed at the lack of evidence before the Arbitrator. The Arbitrator made a determination on the basis of what was placed before her on behalf of the parties by their legal practitioners. It is up to parties to present before the court or quasi -judicial tribunal evidence in support of their respective cases or ask that such evidence be led. It is trite that he who alleges must prove. Nyahondo v Hokonya& Ors 1997(2)ZLR 457. On record there is correspondence showing that the appellant’s legal practitioners submitted a copy of the appellant’s pay slip to the Arbitrator ‘as directed’. There was no adverse comment on behalf of the respondent regarding this particular correspondence. Further in his address to the Court Mr Moyo submitted that the pay slip was produced at the request of the Arbitrator. In the circumstances, the respondent cannot raise the propriety of the production of the pay slip in question as a ground of appeal. The appellant was directed to do so. I therefore find no merit in this ground. The respondent takes issue with how the Arbitrator computed the sum due to the appellant without evidence. While the ground is that there was no evidence on how the amount was arrived at by the Arbitrator, I have already made a finding that the Arbitrator ought to have found that the appellant was retrenched. The question of damages as computed by the Arbitrator is not consistent with retrenchment. The formula for calculating the quantum in damages in lieu of reinstatement , which appears to be what the Arbitrator used, is different from the one used when calculating a retrenchment package . Further still the submission on behalf of the employee which sounds probable, was that the issue of formulas was debated before the Arbitrator. Further and at the pain of repeating , it was up to the parties to call for evidence in support of their respective positions. There is therefore no merit in the 3rd ground.

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[30]The employer ’s prayer is that the Arbitrator’s award be set aside and be substituted with the dismissal of the employee’s claim. This prayer means that the employer abandoned the position which parties adopted during discussions leading to the matter being referred to compulsory arbitration. The Pre- Arbitration Minute guided the Arbitrator to calculate the retrenchment/separation package and not to dismiss the claim. The Arbitrator was obviously free to make a finding that there was nothing due to the employee but given the circumstances of this case the Arbitrator was to compute the retrenchment/separation package as agreed to by the parties. The alternative prayer by the employer was to award the appellant an amount calculated on the basis of repealed provisions of the Act. This is inappropriate as noted earlier. It is for these reasons that I find that there is no merit in the cross-appeal. It fails.

[31]It was in view of the foregoing that the following order was made:

THE CROSS-APPEAL BE AND IS HEREBY DISMISSED WITH COSTS.

KANTOR AND IMMERMAN , APPELLANT’S LEGAL PRACTITIONERS.

MAWERESIBANDA COMMERCIAL LAWYERS, RESPONDENT’S LEGAL PRACTITIONERS.

AND

MAWERESIBANDA ,COMMERCIAL LAWYERS

KANTOR AND IMMERMAN , LEGAL PRACTITIONERS