Lowsign Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/113/16
HELD AT HARARE 10 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/113/16

HELD AT HARARE 10 FEBRUARY 2016			CASE NO LC/H/APP/1062/15

& 4 MARCH 2016

In the matter between:

LOWSIGN NYARUMBU							Appellant

And

SANDVIK MINING & CONSTRUCTION ZIMBABWE (PVT) LTD		Respondent

Before The Honourable F C Maxwell, Judge

Appellant			In person

For Respondent		Mr F Mahere (Legal Practitioner)

MAXWELL, J:

On 7 May 2013 the Supreme Court gave the following order in a matter between the parties;

“1.	The appeal is allowed with costs.

2.	The judgment of the Labour Court is hereby set aside and substituted as

follows-

The appeal is dismissed with costs.

The appellant shall reinstate the respondent to his former position without loss of salary and benefits or pay damages to the respondent in lieu of reinstatement.

3.	The reasons for this order will follow in due course.”

After the Supreme Court order, appellant reported for duty but was advised that he was not going to be reinstated and an option of paying damages had been chosen.  Appellant was by then represented by the National Engineering Workers Union (NEWU).  On 29 June 2013 NEWU sent to the respondent’s representative a quantification of damages in lieu of reinstatement.  In the same correspondence NEWU sent the banking details for the money to be deposited into its account.  The quantification had a grand total of $37 840.98.

On 8 August 2013 respondent’s lawyers replied to NEWU’s quantification letter.  They indicated that their client was offering back pay from 21 February 2008, the date of dismissal, to 7 May 2013, the date of the Supreme Court order.  They further stated

“We are of the view that the back pay adequately compensates your client and the five years and three months salary should suffice as adequate damages to your client.”

On 20 August 2013 respondent’s lawyers requested NEWU for a calculation of appellant’s back pay and benefits.  The calculation was supplied through a letter dated 26 August 2013.  The total amount was $21 652.78.  A breakdown of the amount was attached.  On 9 September 2013 respondent’s lawyers wrote two letters to NEWU.  The first letter disputed appellant’s entitlement to notice pay as they were of the view that it was not applicable in the matter.  The notice pay was $1 254.00.  The second letter stated

“We confirm that our client will pay, in full and final settlement of the matter, back  pay in the sum of US$20 308.78.  Kindly confirm that that (sic) this is in order so that payment can be processed.”

On 1 September 2013 NEWU responded

“Our member is agreeable to the amount stated in your letter (US$20 308.78).  May you kindly process the payment.”

The full amount of $20 308.78 was paid to applicant’s representatives.  What follows thereafter is evidence of applicant trying to undo the out of court settlement.  On 25 March 2014 applicant filed a chamber application for review of Supreme Court order SC/114/12 (sic) in the High Court HC 2457/14.  He alleged that respondent “acted in contempt of court when he paid applicant his salary and benefits but deliberately failed to reinstate applicant as was ordered in the Supreme Court order SC/ 113/12.”

In that application applicant reveals that in his view he is entitled to damages in lieu of reinstatement and therefore respondent should be ordered to pay $16 278.20 in addition to the amount paid as full and final settlement agreed by the parties.

In paragraph 12 of the founding affidavit to the chamber application to the High Court.  Applicant states

“12.	Applicant made their (sic) application to this honourable court after realizing that the National Engineering Workers Union failed to press for the above mentioned terminal benefits which remained entitled to him.”

Respondent responded pointing out that the application was improper, was in the wrong court and the claims are frivolous and should be dismissed.  The chamber application was subsequently withdrawn by applicant on 27 November 2014.

Applicant thereafter took the route of arbitration.  On 19 May 2015 the arbitrator gave an award in which he stated that he had no power to look into non-compliance with a Supreme Court order and therefore claimant should approach the Supreme Court.

On 1 September 2015 applicant filed the present application for quantification of damages in lieu of reinstatement.  In the founding affidavit he states that respondent has not complied with the Supreme Court order to either reinstate him to his former position without loss of salary and benefits or pay damages in lieu of reinstatement.  He further states that

“Respondent has only paid me my outstanding wages for the period I have been on suspension, but did not either reinstate me or pay damages in lieu of reinstatement as per the Supreme Court order SC 113/12.”

In response respondent raised a point in limine that the application was not in the prescribed form.  It went on to state that there is no basis for applicant to claim additional damages as the full amount of US$20 308.78 was paid to applicant’s representatives as the agreed damages in lieu of reinstatement which were negotiated and agreed between the parties.

In heads of argument, applicant states that the amount paid by respondent was never agreed to by the parties.  He submits that there is no tangible evidence that he agreed to such payment and puts respondent to strict proof thereof.  He requests respondent to submit the alleged agreement which he says has to be signed by him.  He further states that if ever those representing him entered into the alleged agreement they were acting without his consent.  He referred to the case of Washaya v Washaya 1989 (2) ZLR 195.  He further says the purported agreement between the Trade Union and the respondent’s legal practitioners is illegal in nature.  Applicant cited the cases of ZUPCO v Richard Christopher Daison 2002 ZLR 86 and Kuda Madyara v Glope & Phoenix Industries (Pvt) Ltd t/a Ran Mine SC 63/2002.

The cases cited do not support the applicant.   In the Washaya v Washaya case (supra) the fact that there was no consent was confirmed on oath by the applicant as well as by the lawyer who represented him.  In casu, for applicant to rely on this case successfully there is need for an affidavit from NEWU confirming that there were no instructions from applicant when the out of court settlement was reached.  The other two cases do not deal with circumstances where an agreement was reached by consent.

Respondent stated in heads of argument that NEWU was assisted in the matter during negotiations by a lawyer, Mr Makururu, who was attached to the Union at the time.  That was not denied.  The words of BHUNU J (as he then was) in Wang & Others v Ranchod N.O. & Another 2005 (1) ZLR 415 at 48 are apposite.  His Lordship stated

“… It is trite in our law that he who does a thing through another does himself.  An agent steps into the shoes of his principal.”

NEWU acted for applicant and agreed that the payment to be made and that was subsequently made was in full and final settlement of applicant’s claim.   Applicant cannot renege on that agreement.

The courts are enjoined to uphold the sanctity of contracts.  As stated by PATEL JA in Kundai Magodora & Others v Care International Zim SC 24/14.

“… It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.  This is so as a matter of public policy… nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms…”

The court will not assist applicant to renege on an agreement that was entered into freely and voluntarily.

For the above reasons I dismissed the application with costs.

Gill, Godlonton & Gerrans, respondent’s legal practitioners