Court name
Supreme Court of Zimbabwe
Case number
SC 107 of 2002
Civil Appeal 220 of 2001

Posts and Telecommunications Corporation v Zimbabwe Posts and Telecommunications Workers' Union and Others ( 220/2001) (SC 107 of 2002, Civil Appeal 220 of 2001) [2002] ZWSC 107 (25 November 2002);

Law report citations
Media neutral citation
[2002] ZWSC 107



















Judgment
No S.C. 107\2002


Civil
Appeal No 220\2001

















POSTS AND
TELECOMMUNICATIONS CORPORATION v ZIMBABWE POSTS
AND TELECOMMUNICATIONS WORKERS’ UNION
AND TWO
OTHERS











SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & GWAUNZA AJA


HARARE
JULY 9 & NOVEMBER 26, 2002








J.C.
Andersen S.C.,

for the appellant





T.
Biti, with him Mr Zhou, for the respondents








CHEDA
JA: The appellant is the Posts and Telecommunications
Corporation, the organisation responsible for postal and telephone
services in Zimbabwe.






The
respondents are the Workers’ Union which represents the employees
of the appellant, and the two others are former workers
of the
appellant who took voluntary retirement packages, represented by one
Emmanuel Kasaki.





Although
the respondents filed different applications at the High Court, the
two cases were dealt with together because of the common
background
and overlapping issues involved.






This
appeal is against the decision of the High Court in which it ordered
the appellant to pay the respondents’ salaries and allowances
in
accordance with the agreement reached by the parties and recorded in
Statutory Instrument No 26 of 2000.





Before
I go into the merits I prefer to set out the background to this case
and the events that led to the dispute.





It
is the practice of the appellant to hold meetings every year and
negotiate with the respondent Union’s representatives, new
salary
increases and other benefits for each coming year in accordance with
section 74 of the Labour Relations Act [Chapter 28:01].





Once
an agreement is reached, it is referred to the National Employment
Council (NEC) of that particular industry. If accepted
by the NEC
the agreement is published in a statutory instrument and forms the
basis of new salaries and other allowances for the
workers in the
following year. The agreement is then binding on all the parties,
that is, the employer and employees.





In
March 1999 the appellant decided that its employees should be paid on
the basis of the median quartile of the market. This
decision was
made by the appellant’s Board.





Following
this decision, negotiations were held between the appellant’s
management and the respondents’ representatives on the
increases to
be made to the various grades of the appellant’s employees.





Several
meetings were held and several issues were raised for discussion.





By
January 2000 the negotiating committee was able to present its
findings to the NEC.






Still in January, the appellant
announced to its employees that agreement had been reached and there
was a new salary structure
based on the median quartile as opposed to
the lower quartile in which they had been before. It was also
agreed that the 1
st
October 1999 was to be the date on which the new salaries would be
made effective.






A
statutory instrument was then published, S.I. 26 of 2000 to record
and make the agreement official.





The
appellant proceeded to pay the respondents, in service, according to
the new salary structure, from October 1999 to March 2000.





In
March, the appellant advised the respondents that it could no longer
continue to pay salaries in accordance with S.I. 26 of 2000
as the
salary bill had proved to be beyond its means.





The
respondents did not accept this and resorted to collective job
action.





The
matter was referred to a Labour Officer who issued an order that the
respondents return to work and the appellant pay them according
to
what was agreed pending new negotiations. The negotiations failed
and the respondents resorted to collective job action once
more.
The matter was also referred to the Minister of Labour and Social
Welfare whose decision I shall deal with later.





When
the appellant would not pay the respondents according to the
agreement, the respondents approached the High Court in order
to
enforce payment by the appellant at the agreed salary levels.





The
High Court ordered the appellant to comply with S.I. 26 of 2000.





In
its appeal against this decision the appellant raised the following
issues:






  1. its
    refusal to pay the respondents on the basis of S.I. 26 of 2000 is
    lawful because of the decision of the Minister who ordered
    that the
    appellant pay the respondents according to the previous salary
    levels with the added 45% across the board;









  1. incorrect figures had been used
    in the negotiations;









  1. the approval of the appellant’s
    Board had not been obtained for the figures used at the
    negotiations.








When the respondents resorted to
collective job action because of the disagreements and the matter was
referred to the Minister,
the Minister responded by issuing a
directive in which she stated:-






“The
Collective Bargaining Agreement as reached to us is very clear and in
all our calculations it will show that the agreement does
not need to
be amended. What seems to be in dispute are the salary figures to
be applied when implementing the Agreement … the
parties to the
agreement are to appear before the Hon. Justice H.B. Hwacha who has
been appointed as an Independent Mediator to resolve
the dispute in
terms of section 100(2). Arbitration costs are to be borne by
P.T.C. Justice Hwacha will contact you directly
on the arbitration
proceedings.






In
the interim, workers will continue to be paid current reduced
salaries. Any further adjustments for the salaries will be done
after the decision of Justice Hwacha.”









The Minister was responding to
a request to amend the agreement on S.I. 26 of 2000. She refused to
amend it. Having so refused
she sought to amend it by directing the
appellant to ignore the contents of the agreement. She was wrong.
She could not direct
the appellant in that way unless she amended the
instrument. She was supposed to act in terms of section 81 which
she did not do.
Accordingly the agreement remained intact and
effective. Her directive was wrong and was properly set aside by
the court
a quo.






The
allegation that the figures used were wrong is not convincing. The
appellant was asked during negotiations to provide the
respondents
with the actual figures instead of just referring to the median
quartile.





The
appellant’s experts and technocrats were tasked to produce the
figures. They did. The figures were accepted by the appellant
and
presented to the negotiating committee.





There
were available by then, figures produced by Lorimak at the request of
the appellant. The appellant chose to work out and
produce its own
figures. It is only when the appellant was faced with an enormous
salary bill that the issue of the figures was
raised. It has not
been explained how the figures are erroneous. There is no
satisfactory explanation on how the error was actually
made. There
is no evidence from the persons who compiled the figures to explain
the error they made, bearing in mind that the appellant’s
experts
were tasked to produce the figures. They acted for and on behalf of
the appellant.






I could even go as far as
saying even if one accepted that the figures were a result of an
error it cannot be regarded as a
justus
error. See
University
of Zimbabwe v Gudza

1996 (1) ZLR 249 and cases cited therein. If it was, it would have
been noticed when the figures were discussed by the negotiating
committee. The error would have been noted when the figures were
discussed with the National Employment Council. It would have
been
noticed by the Board. It would have been noticed when the salaries
of the workers were being prepared.






I
cannot believe that the appellant and its experts could simply agree
on the new salaries without bothering to find out what the
resultant
salary bill would be.





In
fact, during the negotiations, the minutes show that this issue was
raised by one of the participants in the meeting who asked
them to
consider the Corporation’s ability to pay. Another councillor
asked the meeting:-





“… to
consider the fact that in real terms the Corporations payable burden
would increase by 85% if C.B. is put together with the market
adjustment.”










Such issues raised at the
meeting would clearly attract the attention of the appellant’s
experts. It is highly improbable that
such reminders could have
been ignored by the appellant. If this was ignored then it cannot
be said that there was a
justus
error.






The
appellant also raised the issue that the authority of the Board had
not been obtained for the figures presented to the NEC.
There is
nothing to suggest that the authority was a requirement. In any
case, the Board was represented in the negotiations
at a very high
level. The appellant could not have gone as far as presenting the
figures to the NEC, advising the workers of the
result of the
negotiations, publishing S.I. 26 of 2000 and paying the new salaries
for some months without getting the Board’s
approval if such
approval was necessary. I consider that the Board must have known,
and authorised the payments, or if they did
not authorise them, then
such authority was not a requirement.





This
is because, having decided that the workers should be moved to the
median quartile, the Board would have been kept up-to-date
with
discussions and progress made towards what they resolved.





There
is nothing to suggest that the Board complained of anything done
without its authority. I do not believe that management
could
determine new salaries and even pay them without the Board knowing
about them. S.I. 26 of 2000 was gazetted and they would
have seen
it.





The
Minister’s powers on the agreement are regulated by the Labour
Relations Act. She could only exercise powers given to her
by the
Act. I agree with the respondents’ submission that once she
decided that the agreement was correct and did not need to
be
amended, she had no powers to refer to a mediator an agreement which
was correct. What would the mediator be doing if the agreement
was
correct?





The
Minister did not find that the agreement fell under any of the
provisions of Section 81 where she is empowered to amend it.





It
seems to me the proper opportunity to put things right was missed
when the matter was referred to the Minister. Had the Minister
acted in terms of the powers conferred on her by the Act, the
agreement on S.I. 26 of 2000 could have been amended.





A
good opportunity for the appellant to mitigate its problem on the
heavy salary bill was not taken advantage of when parties were
asked
to re-negotiate the agreement. The minutes show that the
respondents did offer certain compromises which were not taken
advantage
of by the appellant. Instead the appellant chose to
unilaterally vary the agreement without authority. In so doing the
appellant
was wrong.





The
voluntary retirees simply want the appellant to pay them whatever was
the difference between what they were paid and what they
should have
been paid. This is because the increases were back-dated to the
time when they were still in service. What it means
is that those
who remained in service were paid better salaries while those who
left were paid less but for the same months, especially
the
back-dated salaries. I see no reason why they should not be paid
that difference. The fact that the decision to increase
the
salaries and back-date them was made when they had left, or left soon
after that, should not be a reason to exclude them.






I therefore see no reason to
interfere with the decision of the court
a
quo
.






Negotiations
were held on the instruction of the appellant’s Board that the
workers be placed on the median quartile. Figures
were worked out
by the appellant’s experts and technocrats. The appellant’s
Board was represented on the negotiating committee.
Agreement was
reached and published in the Statutory Instrument. The new salaries
were paid for several months. It was only
when the appellant
realised the enormity of the resultant wage bill, that it reneged on
the agreement.





It
was only then that the appellant turned round, sought to dispute its
authority and raised the issue of errors in the figures.





It
must be pointed out that having previously asked some consultants to
work out figures for it, the appellant abandoned those figures
and
asked its own experts to produce figures which the appellant then
chose to rely on. The appellant cannot now turn round and
say there
was an error in the figures. The appellant was simply negligent in
not checking what effect the increases would have
on its wage bill
despite the fact that its ability to pay was raised during the
negotiations. Even when the wage bill proved too
high the appellant
continued to pay it for five months until the banks advised that they
would not continue to accept further withdrawals
on the over-drafts.






There was clearly no justus
error in what the appellant did. The point is illustrated by
University of Zimbabwe
v Gudza, supra
.







The same point is dealt with in
Horty Investments v
Interior Acoustics

1984 (3) SA 537. In
George
Fairmead and National and Overseas Distributors v Potato Board

1958 (2) SA 465A at 471 FAGAN CJ stated the following:-







“When
can an error be said to be
justus
for the purpose of
entitling a man to repudiate his apparent assent to a contractual
term?






As
I read the decisions, our Courts, in applying the test, have taken
into account the fact that there is another party involved and
have
considered his position. They have, in fact, said: Has the first
party – the one who is trying to resile – been to blame
in the
sense that by his conduct he has led the other party, as a reasonable
man, to believe that he was binding himself?”









The above is also supported by
the case of
Mabhena v
Harare Polytech College
HB-22-94
where it was held that “… the College could not resile from the
contract on the basis of its unilateral mistake”.






I
see no merits in the appeal and it is dismissed with costs.








SANDURA
JA: I agree











GWAUNZA
AJA: I agree















Coghlan Welsh & Guest,
appellant's legal practitioners


Honey
& Blankenberg
,
first respondent’s legal practitioners


Kantor
& Immerman
, second
respondent's legal practitioners