Naphtan Makaka Tembo v Masimba Construction Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/663/13
HELD AT HARARE 20TH NOVEMBER 2013
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO LC/H/663/13

HELD AT HARARE 20TH NOVEMBER 2013	           CASE NO LC/ORD/H/26/13

AND 6TH DECEMBER 2013

NAPHTAN MAKAKA TEMBO				Applicant

MASIMBA CONSTRUCTION				Respondent

ZIMBABWE

Before The Honourable G Musariri, Judge

For Applicant		Mr N.M. Tembo, Applicant

For Respondent		Mr G Guvamombe, Manager

MUSARIRI, G:

At the start of the hearing the parties agreed that the citation of Respondent be amended.  With their consent, the Court deleted the name “Murray & Roberts Construction Zimbabwe” and substituted it with the name “Masimba Construction Zimbabwe”.  Applicant titled the proceedings as “Application For An Order.” The application is supported by his affidavit.  The critical part reads as follows,

“4.  I am against payment of USD$700.00 as accrued salary (July 2005, March 2006), 13th cheque, 3 months notice pay and leave

pay.  Payment was done after I had taken the matter to Labour Relations Bindura.  I cannot understand how they arrived at USD$700.00 as full settlement.  This falls far short of statutory requirements i.e. Notice pay alone us USD$900.00.

5. I accepted the money out of desperation and to cover medical

expenses for my wife who suffered a major stroke (CVA) a month after my second contract with Murray and Roberts Construction Limited was terminated.  She is yet to recover.”

During the hearing it emerged through Respondent that Applicant filed his claims with a Labour Officer (L.O.) at Bindura.  The total claim amount to US$1,500.00.  After conciliation, the parties reached an agreement which is embodied in a Certificate of Settlement.  A copy of the Certificate is filed of record.  The relevant part reads thus,

“The agreement is that Murray and Roberts will pay Mr N.M. Tembo US$700.00 by the 23rd November 2011 as full and final settlement of his claims.”

It is dated 21st November 2011 and signed by both parties.  Applicant admitted that he was paid the amount of US$700.00 a few days after the settlement.

This is a classic case where the maxim caveat subscriptor applies.  Applicant signed or subscribed to a document which compromised his claims.  He was offered and accepted payment in terms of the compromise.  He now says he did so only because he was desperate.  He was not forced to sign.  He had a choice, albeit a difficult one. He could refuse the offer. He chose to

compromise.  Therefore he must live with the consequences.  His claims were extinguished by the compromise.

Wherefore it is order that,

The application for an order is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E