Zvidzai Mawere & 2 Others v Mbada Diamonds

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/89/2014
HELD AT HARARE ON FEBRUARY 7, 2014
CASE NO. LC/CON/H/12/13
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IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/H/89/2014

HELD AT HARARE ON FEBRUARY 7, 2014		CASE NO. LC/CON/H/12/13

And 14th FEBRUARY, 2014

In the matter between:-

ZVIDZAI MAWERE & 2 OTHERS				-	Applicants

And

MBADA DIAMONDS						-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Applicants	-	Mr H. Siziba

For Respondent 	-	Mr A. Marara (Legal Practitioner)

CHIVIZHE J,

The matter was placed before me as an application for condonation of late noting of appeal.  Respondent took a point in limine to the effect that the application was no longer valid in view of a settlement agreement reached between the parties.  The court upheld the point in limine and dismissed the application.  It was indicated that the reasons for the decision would follow.  These are they.

The material background facts are that the Applicants were all ex-Gecko employees who were later absorbed into Mbada Diamonds operations.  The letter so transferring the employees is dated 5th of June, 2012.  The Respondent then in September 2013 in order to incorporate all ex-Gecko employees asked the employees to sign employment contracts.  It was Respondent’s allegation that the Applicantsthereafter disrupted operations at the mine by inciting other employees not to sign their contracts but instead to demand for permanent contracts.  The Applicants were consequently suspended from employment on the 19th of September, 2012.  A disciplinary hearing based on charges of unlawful collective job action under Section 6(n) of the relevant Code i.e. Statutory Instrument 165 of 1992 was then held on the 20th of September, 2012.  The Applicants were found guilty on the charge and a penalty of dismissal was imposed.  The Applicant then noted an appeal which appeal hearing was held on the 9th of October 2012.  The appeal was dismissed and Applicants’ dismissal from employment was confirmed.  Aggrieved the Applicants initially referred the matter for conciliation based on a claim of unfair labour practice.  The matter was later referred to Arbitrator upon failure to settle.  The Applicants then withdrew their matter from the Arbitrator and proceeded to file an applicationfor condonation of late noting of appeal with the Labour Court.

At the commencement of the hearing the Respondent took a point in limine to the effect that the application was no longer valid before the Labour Court in view of the settlement agreements reached by the Respondent individually with all the three Applicants.  The Respondent counsel then tendered copies of the settlement agreements which were marked as Annexure “A”.  The three settlement agreement which are identified in form reflects that on the 10th of May, 2013 the parties negotiated and agreed to settle the labour dispute between them.  The Respondent undertook to pay to each Applicant amounts for the following items:

Remainder of contract being 11 months at specified amounts.

Leave days value

Overtime and

Gratuity at 7.5%

Each agreement indicates that it constitutes the full and final payment between the parties in respect of a claim for unfair labour practice.  No other claims regarding the case would be instituted.  Each agreement further shows that the Appellant individually entered their full names, national I.D. and address, and endorsed that the amount received constituted full and final payment of any moneys owed to them by the Respondent.  EachAgreement indicates that the Appellant also confirmed that they signed the documents with full knowledge and without fear, intimidation and were not under any form of duress.  The Applicants individually endorsed their names signed and inserted the date being 17th May 2013.

The Applicants in response were opposed to the point in limine.  It was submitted by their spokesperson that although they conceded to signing the settlement agreement on the 17th of May 2013, they had been forced to sign because of economic hardships having gone for 10 months without a salary.  It was also Applicant’s contention that the Respondent, contrary to the agreement reached,had deposited the money into their old accounts against which they had previously obtained loans from the banks.  As a result the payment had been swallowed up to off-set the particular loans.  The Respondent according to Applicants ought to have deposited the money into new accounts furnished by the Applicants.

The Respondent in reply submitted that the Applicants were bound by the “caveat subscripto rule”.  On the aspect of economic duress the Respondent referred the Court to the decision in Vimbayi Mbisva vs. Rainbow Tourism Group Limited t/a Rainbow Hotel & TowersSC 32/09 in which the Supreme Court dismissed a similar argument raised that an agreement had been signed under duress.

I was satisfied after listening to submissions by both parties that indeed the point in limine was merited.  It was very clear that the Applicants had freely and voluntarily entered into an agreement with the Respondent to settle the labour dispute between them.  I rejected the argument by the Appellants that the agreement had been signed under duress albeit economic duress.  It may be true that the Applicants were laboring under financial strain at the material time they ought however to have made their position clear to the Respondent. They were not under any pressure from the Respondent to accept the payment.  The Applicants clearly did not sign the agreement under duress.

It was also clear that the Applicants were only pursuing the appeal because they felt shortchanged because the payouts had been swallowed up in their accounts and they came out of the deal with very little or nothing.  It is unfortunate that the Applicants were forced to pay up their loans at the material time.It would clearly be unfair and unjust for the Applicantsto expect the employer to pay for loans as well as terminal benefits.  It was on this basis that I found that the Applicants having freely and voluntarily entered into the settlement agreement and having thereafter appended their signatures to the agreement accepted the terms and conditions of the agreement. The Applicantshad under the agreement clearly waived their rights to any future claims against the Respondent. They could not turn around and claim that they were duped. It was for these reasons that at the end of the proceedings I handed down an order in the following terms;

The point in limine is hereby upheld.

The application for condonation of late noting of appeal be and is hereby dismissed.

Mutamangira & Associates – respondent’s legal practitioner