John Madziya N.O v The IYF Zimbabwe Trust & N. Mapfumo

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/76/24
HARARE 24 NOVEMBER,2023
CASE NO. LC/H/LRA/162/19A
AND 28 FEBRUARY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 24 NOVEMBER,2023

AND 28 FEBRUARY, 2024

In the matter between: -

John Madziya  N.O

Versus

The IYF Zimbabwe Trust

N. Mapfumo

Before the Honourable L. Hove, Judge:

JUDGMENT NO. LC/H/76/24 CASE NO. LC/H/LRA/162/19A

Applicant

1st Respondent 2nd Respondent

For applicant :	No Appearance For 1st respondent :	Mr. S Sadomba

For 2nd respondent :	Mr. J Sinyoro

This is an application for the confirmation of a draft ruling by the applicant. Brief background

The brief background is that the 2nd respondent was engaged by the 1st respondent in terms of various fixed term contracts as a finance director for its project in Zimbabwe.

The project was projected to end in June 2014. The 1st respondent was of the view that it would not be able to get further funding to renew the contracts. The 1st respondent therefore sought to retain essential staff including the 2nd respondent and in anticipation of the project coming to an end in June 2014, offered those of its essential staff a retention allowance. The project was however able to receive additional funding and the project continued with the entire staff. The project did not end as had been projected in June of 2014. The 1st respondent argues that the offer for a retention allowance was given under the circumstances which obtained in December 2013 in anticipation of the project ending in June of 2014 but fell away as soon as additional funding was secured.

The 2nd respondent on the other hand argues that the retention allowance, though offered in December 2013, was only due and payable at the end of the project as indicated in the offer letter. She argues that the project ended in 2017, Her lawyers wrote to the 1st respondent and made the demand for retention allowance after 2017 as follows;

“our client advises that;

She was employed by yourselves as a finance and administration manager.

In terms of her employment contract, a copy of which we have perused, she was entitled to amongst other things, to a retention pay equivalent to two months’ salary

The condition precedent for the payment of the retention pay was that she continues to work for yourselves throughout the duration of the project…”

The matter was reported to a Labour Officer (applicant) who made a draft ruling in favour of the 2nd respondent. The applicant ordered that the retention allowance be paid.

The 1st respondent challenges the confirmation of the draft ruling and argues that, firstly, the contract under which she was offered and was entitled to retention allowance was terminated (it was a fixed term contract) and supplanted by several other contracts. It was further argued that the claim had prescribed.

The 2nd respondent’s argument though compelling is unfortunately unable to carry the day.

She argues that the matter has not prescribed and that she is entitled to the retention allowance because the offer letter had a condition precedent. As such, the retention allowance was only payable or becomes legally enforceable upon the fulfilment of that condition precedent. It was argued that the terms of the offer letter where that the retention allowance would only become payable if she worked for the 1st respondent until the completion of the Zimbabwe Works Project. So, it was argued that the date of the cause of action was the date the Zimbabwe Works Project ended. Prescription would also run from the same date and therefore, the matter had not prescribed by the time it was brought before the applicant. The project was argued to have been completed in December 2017. The offer was in 2013 but the condition precedent was fulfilled when the project ended in 2017. The Court was referred to the cases of Chigodora & anor vs Rodrigues & ors HH 276/10 and Sheterayi Sevy Runatsa and Rumani Estates (private) Limited & ors SC 54/09.

The respondent does not deny that it offered a retention allowance in December 2013. It does not deny that there was a condition precedent that the retention allowance could only be payable at the completion of the Zimbabwe Works Project.

The point of departure is that whereas the 2nd respondent believed the date of the end of the Zimbabwe Works Project was in December 2017, the 1st respondent believed and argued that the end of the Project that was envisaged in the offer letter was June 2014.

The 1st respondent argued that the offer for the retention allowance was in view of the scheduled end of the Zimbabwe Works Project in June of 2014. The 1st respondent was not sure that it would be able to get funding for the project to continue past its projected end in June 2014, and wanting its essential staff to remain in the employment, it made the offer in December 2013 for those of its essential staff which it wanted to retain up until the end of the project in June 2014.

It is not disputed by the 2nd respondent that the project was ending in June 2014. The end of the project that the parties where (at the time of the offer) envisaging was June 2014. The offer for retention was offered if the 2nd respondent was to stay on from December 2013 to June 2014. This was the context of the letter of December 2013 which made the offer for the retention allowance.

When the 1st respondent secured funds for the Project to go beyond the projected end date of June 2014, the parties engaged each other again and signed new fixed term contracts which made no reference to a retention allowance.

The 2nd respondent’s entitlement was thus claimable from the end of the project in 2014, June. She had stayed on or continued to work to the end of the project. Whatever rights she had become claimable upon the end of the project in June 2014.

This would mean, in terms of Section 94 (1) of the Labour Act [chapter 28:01] that the claim would prescribe in or about June 2016.

The offer letter stated in the relevant portion that;

“current funding and program period for Zimbabwe Works Project is scheduled to end in June 2014.”

And she was part of the essential staff that was to be retained to enable a smooth close down. The end of the project in the context of the circumstances that the parties found themselves in was June 2014. This is why the letter spoke of a smooth close down. This is the clear and ordinary meaning of the offer for the retention. The phrase ‘end of the project’ was not indefinite it was within the context of the impending end of project in June 2014.

That the 1st respondent was able to extend the project beyond the scheduled end date because they were able to get extra funding, this was just fortuitous but it was necessary that the parties engage each other again in the fixed term contracts that followed and made no provision for retention pay.

The 2nd respondent’s claim therefore prescribed in or about June 2016. The fixed term contracts which were entered after 2 June 2014 did not provide for the retention allowance and the 2nd respondent’s claim under the contract that gave her that entitlement had prescribed after June 2016. She was no longer entitled to a retention allowance.

The law is very clear, Labour Officers should not deal with claims that are more than 2 years old from date of cause of action. See in this regard the cases of Road Accident Fun v Mdeyide 2011 (2) SA 26 (CC) and Zimbabwe Platinum Mines (private) Limited v Aleck Manyara & 94 others LC/H/579/13 where in the court stated that;

“suffice it to say that the law was clearly stated there in, when a matter has prescribed it is ‘dead’, the court cannot resuscitate something that is dead”

See also Mahommed v Yssel and others 1963 (1) SA 866 where the court stated that

“a non-vigilant creditor may lose his right to enforce his claim in circumstances which evoke great sympathy for him. Prescription laws are absolute and permit no benevolent exceptions of the clear terms of the statute” (in casu, the clear provisions of Section 94 (1) of the Act.

The applicant thus misdirected himself in arriving at the conclusion it arrived at. The draft ruling was a misdirection on the part of the applicant. In the result the following order is made.

Order:

The applicant’s claim has no merit and the court declines to confirm the draft ruling.