Giles M. Masango v Sunway City (Private) Limited

### Preamble
Judgement No. SC 97/25
1
Chamber Application No. SC 186/25
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REPORTABLE	(97)

GILES     M.     MASANGO

v

SUNWAY     CITY     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

HARARE: 4 APRIL 2025 & 29 OCTOBER 2025

S. Chatsama,for the applicant

P. Dube with B. Dube, for the respondent

IN CHAMBERS

CHIWESHE JA:	This is an opposed chamber application for leave to appeal made in terms of section 92 F (3) of the Labour Act [Chapter 28:01] (the Act) as read with r 60 (2) of the Supreme Court Rules, 2018 (the Rules).  The applicant intends to appeal against the whole judgment of the Labour Court (the court a quo) sitting at Harare dated 22 November 2024, dismissing his application for review.  The court a quo also dismissed his application for leave to appeal its decision, hence the present application.

THE FACTS

The applicant was employed by the respondent as its chief finance officer. On 4 November 2019 the respondent served the applicant with a notice of retirement advising him that he was to be retired with effect from 30 April 2020 on attaining the age of 60. The applicant challenged the notice arguing that he was entitled to retire at the age of 65, being the retirement age fixed by the rules of the applicable pension fund. Despite his protestations, on 31 March 2020, he was placed on forced leave pending retirement on 30 April 2020. In addition, he was barred from entering his office to perform his duties.  However, the parties appeared to have found each other when the respondent accepted the applicant’s proposal that he be retired on 31 December 2020 and not in April 2020, as originally suggested.  To that end the applicant was paid his salary up to December 2020 plus retirement benefits.

Despite that development, the applicant approached the court a quo with an application for the review of the respondent’s decision to retire him before the age of 65.

SUBMISSIONS IN THE COURT A QUO

The respondent operates a pension fund called the Industrial Development Corporation of Zimbabwe Pension Fund (the Fund).  The applicant averred that he became a member of the Fund upon joining the respondent’s employ, and, according to the rules of the Fund and the terms of his contract of employment, he was entitled to retire at the age of 65.  On the other hand, the respondent’s stance was that the applicant’s contract of employment was governed by its Staff Rules and Procedures (the Staff Rules) and that reference in the Staff Rules to the Fund did not mean that the rules of the Fund would apply.   The respondent was adamant that since the Staff Rules provided for retirement at the age of 60, the applicant could not seek to retire at the age of 65.  The respondent further contended that in any event, the applicant had accepted the retirement package in terms of which he was to retire on 31 December, 2020.  It averred that the applicant had accepted the package as the full and final settlement of the dispute between the parties.

DECISION OF THE COURT A QUO

The court a quo perused some correspondence between the parties in terms of which the parties agreed that the applicant would retire in December 2020.  It noted that it was not the letter of 4 November 2019 that terminated the contract of employment but the proposal by the applicant who elected to retire at the end of 2020.  It noted that if the contract had been terminated through the notice of 4 November 2019, the applicant would not have been paid after 30 April 2020, the date of retirement set in terms of that notice.  It found that the applicant had accepted his benefits as the full and final settlement of the dispute in a letter he penned on 27 October 2020.  The court a quo noted that the applicant had conceded that letter but had not related to it in his founding affidavit.  It further noted that the Staff Rules were part of the applicant’s contract of employment which set the retirement age at 60 and not 65.  It thus dismissed the application before it.

Aggrieved, the applicant applied before the court a quo for leave to appeal to this Court.  He did so on 20 December 2024.  The court a quo dismissed that application.  The applicant has now approached this Court with the present application.

SUBMISSIONS BEFORE THIS COURT

In the main, the applicant’s argument is to the effect that the court a quo misdirected itself on the facts which misdirection amounted to a misdirection at law.  He contends that the court a quo erred in finding that the retirement date was provided for when there was no provision to that effect.  He also argued that the Staff Rules upon which the respondent relied in terminating the contract were not in force as at 4 November 2019 when the notice to retire him had been issued.  As at that date his retirement was governed by the rules of the Fund.  He submits that consequently, the intended appeal raises issues of law.

By way of relief, the applicant prays that this application be granted and that he be given leave to appeal the judgment of the court a quo.  He also prays that the costs of this application be reserved for determination at the hearing of the appeal.

On its part, the respondent reiterated its arguments a quo, namely, that the applicant’s age of retirement was governed by its Staff Rules and not the rules of the Fund.  It insisted that in any event, the dispute had been resolved when it accepted the applicant’s proposal to retire on 31 December 2020 and that all benefits had been paid accordingly, in full and final settlement of the applicant’s claims.

THE LAW

This application is brought in terms of r 60(2) of the Supreme Court Rules, 2018 which provides as follows:

“(2) An appeal from a decision of the Labour Court in terms of s 92 F of the Labour Act [Chapter 28:01] shall be delivered and filed with a registrar within 15 days from the grant of leave to appeal by the Labour Court or where such leave is refused, within 15 days from the grant of leave by a judge:

‘Provided that where leave to appeal is refused by the Labour Court, the applicant shall apply for leave to appeal to a judge within 10 days of the refusal to grant leave.’”

In terms of s 92 F of the Act, an appeal from the Labour Court to this Court ought to be on a question of law.  It is specifically provided as follows:

“92 F (1) An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.”

The primary considerations in an application of this nature are:

Whether or not there is a question of law.

Whether or not the applicant has prospects of success on appeal.

ANALYSIS

Whether or not there is a question of law

In casu, a reading of the grounds of appeal shows that the applicant raises both factual and legal issues.   The grounds that raise issues of fact only stand to be struck out.  However, the applicant raises issues to do with the sufficiency of the evidence adduced a quo.  That is a question of law.  He also avers that in arriving at its decision the respondent relied on the wrong or non-existent regulations.  That point raises a question of both law and fact.

2. Whether or not the applicant has prospects of success on appeal.

The applicant raised five grounds of appeal as follows:

“1. The court a quo grossly misdirected itself on the facts, which misdirection amounts to a point of law, in finding contrary to the evidence on record, that the appellant was not retired from employment by the respondent in terms of 4 November 2019 retirement notice but rather freely and voluntarily retired himself through his own letters.

2. The court a quo erred and seriously misdirected itself at law and on the facts in finding contrary to the evidence, that the Industrial Development Corporation of Zimbabwe Pension Fund Rules, which set the retirement age at 65 years, did not form part of the appellant`s contract of employment that governed retirement as at 4 November 2019 when the retirement notice was issued.

3. The court a quo seriously misdirected itself on the facts which misdirection amounts to a point of law in finding contrary to the evidence on record, that the Sunway City Staff  Rules, Regulations, Policies and Procedures on retirement were operational as at 4 November 2019 and that such rules  formed the basis for the retirement .

4. The court a quo erred and grossly misdirected itself on the facts which misdirection amounts to a point of law in finding that the letter accepting payment of salaries and benefits for the period of 1 May 2020 to 31 December 2020 was a form of contractual agreement between the parties that settled the retirement dispute.

5. The court a quo erred at law in dismissing the application for review despite there being no basis for the respondent`s decision to retire applicant at the age of 60 years.”

In my, view the third ground of appeal is liable to be struck out as it raises purely factual issues and not questions of law.  The fifth ground of appeal is repetitive.  It is likely to face the same fate.  The remaining grounds raise only one issue, namely, whether the applicant should have been retired at the age of 60 in terms of Staff Rules or at the age of 65 in terms of the rules of the Fund.  That was the crux of the dispute between him and the employer.  The court a quo held that the dispute was resolved when the applicant, by way of his letter dated 27 October 2020, elected to retire at the end of 2020, before he attained the age of 65.  Once that election had been accepted and acted upon by the respondent through payment of the full retirement benefits, the applicant`s case was resolved.  In my view, the decision of the court a quo cannot be faulted.  The respondent wrote to the applicant on 4 November 2019 indicating that he was due to retire in April 2020 upon attaining the age of 60.  The applicant did not challenge that position.  Instead, the applicant wrote to the respondent requesting that his retirement be extended to December 2020.  The respondent acceded to that request and offered to pay the applicant for the extended period of eight months calculated from April 2020 (when he should have been retired) to 31 December 2020, the agreed date of retirement.  The applicant accepted this arrangement as the full and final settlement of the retirement package.  That way, the applicant waived his right to challenge the early retirement.

A waiver of rights must not be lightly presumed.  It is however trite that a waiver of contractual rights can be effected either expressly or implied by conduct.  In Chidziva & Ors v ZISCO (Pvt) Ltd 1997 (2) ZLR 368 (S) at 383E this Court, per Korsah JA, held as follows:

“The conduct of the majority of the retrenched employees, by accepting the retrenchment package, was inconsistent with the enforcement of the right to have the matter referred, in terms of s 3(6) of the Regulations, to the retrenchment committee and clearly evinced an intention to surrender that right.  The respondent acted upon their intention to accept the retrenchment package and paid to them the benefits of the agreed package.  With acceptance of such payments the rights of the appellants perished.”

In the same case, Ebrahim JA at 385 C-E concurred as follows:

“In cases where the defendant relies on waiver as a defence, what is required of the defendant is that he must allege and prove a decision by the plaintiff to abandon the right which is being asserted against the defendant.  The decision must have been conveyed to the defendant: Traub v Barclays National Bank Ltd 1983 (3) SA 619 (A) at 634.  It is trite law that the decision to abandon a legal right may be made in one of two ways:

An express abandonment of the right; or

An implied abandonment.  See Hepner v Roodepoort – Maraisburg Town Council 1967 (4) SA 772 (A); Borstlap v Spangeberg & Anor 1974 (3) SA 695 (A). ……

In the instant case, the conduct of the appellants can only lead to the conclusion that they waived their rights.”

I would conclude therefore, that in the instant case, the applicant expressly abandoned its right to retire at 65 by accepting the retirement benefits based on terms he himself had proposed, despite not having attained that age.  Accordingly, the applicant cannot now seek to resile from that contractual agreement, more-so as the respondent has, in good faith, performed as agreed by paying out the benefits due to the applicant.

The applicant insists, however, that his acceptance of the retirement package as agreed did not constitute an abandonment of his right to retire at the age of 65. In his view, the notice originally issued by the respondent retiring him at the age of 60 remained invalid and tainted with illegality. That illegality could not be cured by his acceptance of the retirement package. This argument is premised on the applicant’s belief that his retirement age was fixed by the rules of the Fund.

However, the position of the law was clearly stated by this Court in Misheck Mubvumbi v City of Harare SC 64/18 wherein Makarau JA (as she then was) held, at pp 4 and 5 of the cyclostyled judgment, as follows:

“The legal position presents itself clearly to me that the regulations of any pension fund do not fix the age at which the employee will retire from employment unless, expressly or impliedly, the employer and the employee agree that this be so.

The setting up and administration of pension funds in this jurisdiction is governed by the provisions of the Pensions and Provident Funds Act [Chapter 24:09].  The Act provides for pension and provident funds to make their own rules or regulations.

It is trite that the rules and/or regulations of a pension fund, provided for in s 7 of the Act, invariably fix the age at which contributors retire from making contributions to the fund.  The Local Authorities Pension Fund, the fund in issue in this appeal, did.  This age is also referred to as the retirement age.  The Act however clearly provides that such an age may be attained with or without the termination of employment.

I therefore read the Act in this regard as providing that one may be regarded as having retired for the purposes of the Act and therefore eligible to receive a pension, without necessarily having retired from employment.  In other words, retiring from the pension fund does not always mark an employee’s retirement from employment.  The two retirements can occur on different dates.

Thus, in my view, one may clearly and lawfully attain retirement age for the purposes of the Act whilst still in employment. Whilst my understanding of the law in this regard is not directly relevant to the facts of this appeal, in my view, it underscores the clear legal position that the retirement age fixed by the pension scheme is not, in the absence of consent by both parties to that effect, necessarily the same age at which one must retire from employment.

Where, therefore, the employer intends to apply the retirement age that is fixed by the pension fund for the purposes of retiring employees from employment, it must import this age, with the consent of the employees, into the conditions of service.”

From the above, it is clear that an employee may retire from employment before or after his pensionable age unless his contract of employment stipulates that his age of retirement be as fixed by the rules of the pension fund. In casu, the applicant has not shown that his conditions of service provide accordingly or at the very least, that the parties have agreed such an arrangement. That being the case, the applicant was properly and lawfully required to retire at the age of 60 in terms of the Staff Rules, notwithstanding that his pensionable age had been fixed at 65 in terms of the rules of the Fund.

DISPOSITION

In my view, the applicant does not enjoy reasonable prospects of success on appeal.  For that reason, the application must be dismissed. Costs will follow the cause.

In the result, it is ordered as follows:

“The application be and is hereby dismissed with costs.”

S. D. M. Chatsama Law Chambers, applicant’s legal practitioners.

Dube Manikai & Hwacha, respondent’s legal practitioners.