Shelton Zinyemba v Dohne Construction

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/265/2013
HELD AT HARARE ON 12 JUNE, 2013
JUDGMENT NO. LC/H/265/2013
---------




IN THE LABOUR COURT OF ZIMBABWE     		JUDGMENT NO. LC/H/265/2013

HELD AT HARARE ON 12 JUNE, 2013			CASENO./LC/H/488/2012

In the matter between:-

SHELTON ZINYEMBA						-	Appellant

And

DOHNE CONSTRUCTION					-	Respondent

Before The Honourable L. Hove: President

For Appellant 	-	M.M. Ndebele(Legal Practitioner)

For Respondent 	-	R. Matsikidze (Legal Practitioner)

HOVE L.:

The brief facts to this dispute are as follows;

On 6 June 2012 Honourable Arbitrator M.C. Kare gave an award the effect of which was that the employer was to pay Appellant a total sum of US$6 422, 00 for unlawfully dismissing him.

On 21 June 2012, the Appellant approached the Arbitrator seeking an additional award. On 2 July, the Arbitrator turned down the request and advised the Appellant to appeal to the Labour Court if he was dissatisfied with the award.

On 11 July 2012 the Appellant noted an appeal against the award with the Labour Court.

On 13 November 2012, Appellant entered into an agreement with the Respondent.  In that agreement, it was agreed that the amount awarded by the Arbitrator be paid.  It was to be paid in three installments the last of which was to be in January 2013.

This was a compromise position of settlement.  Both parties agreed that this would constitute the entire agreement between the parties and that after payment of the agreed amount as had been agreed, no further claims would be made against either of the parties.

The facts reveal that the first installment was paid as agreed; the second installment was not paid as agreed.  The third installment was not paid as agreed.

When the appeal came up for hearing on 8 May 2013.  The employer had not paid up in terms of the agreement.  The court postponed the matter to enable the employer to pay the outstanding second installment.

When the matter came up for hearing again on 22 May 2013 the final amount had been paid.

The Appellant accepted the payments and did not refuse on the basis that the Respondent had breached the terms of the settlement agreement.  The result is that there is a valid settlement between the parties.

The law is clear as to the effect of a settlement in the case of

Van Zyl vs Niena 1964(4) SALR 661 it was held that

“a settlement has the same effect as res judicata.  Accordingly, it excluded an action on the original cause of action except where the settlement expressly or by clear implication provides that on non compliance of the provisions thereof, a party may fall back on the original cause of action”

There was no such clear provision in casu.  Nothing was stated in the settlement as to what would happen should the employer fail to meet the terms of the agreement.

The parties must therefore he held to be bound by the terms of the settlement.  The Appellant cannot seek to bring any further claim after agreeing to a compromise position.  The effect is that the Appellant cannot fall back on the original cause of action.

See also Chidziva vs ZISCO Steel 1997(2) ZLR 368.

I must therefore agree with the Respondent that the Appellant waived his right to challenge the arbitral ward or to bring any further claims against the employer.

There is nowhere in the agreement that says the payments are part payments pending the challenge filed with the court against the arbitral award.

The appeal was noted after the Arbitrator had refused to make an additional award.  Also the settlement was after the noting of the appeal and yet in agreeing to receive the money and also in agreeing that there would not be any further claims, the Appellant was alive to the Arbitrator’s refusal to make the additional award and the fact that he had not included backpay; but inspite of that knowledge, he proceeded to sign a declaration that he would not bring any further claims.  He must be taken to have knowingly waived his rights.

See Sterling Product International Limited vs Jean Zulu SC182/88.

In the result, the appeal must fail.  I accordingly order as follows;

The appeal be and is hereby dismissed.

Each party will bear its own costs.

Chadyiwa and Associates– Appellant’s Legal Practitioners

Matsikidze and Mucheche– Respondent’s Legal Practitioners