Court name
Supreme Court of Zimbabwe
Case number
SC 80 of 2005
Civil Appeal 358 of 2004

Mwenje v Intermarket Building Society (58/04) (SC 80 of 2005, Civil Appeal 358 of 2004) [2005] ZWSC 80 (20 July 2005);

Law report citations
Media neutral citation
[2005] ZWSC 80
















Judgment
No. SC. 80/05


Civil
Appeal No. 358/04








AARON
MWENJE v INTERMARKET BUILDING
SOCIETY








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA & ZIYAMBI JA


HARARE,
JULY 21, 2005








The
appellant in person





T
Biti
, for the respondent





SANDURA
JA: This is an appeal against a judgment of the Labour Court in
terms of which the appellant’s application for the quantification
of the damages allegedly payable to him in lieu of reinstatement was
dismissed. After hearing the submissions made by the parties,
this
Court dismissed the appeal with costs, and indicated that the reasons
for that decision would be given in due course. I now
set them out.






The
background facts in the matter may be tabulated conveniently as
follows –






1. At the relevant time the
appellant (“Mwenje”) was an employee of the respondent
(“Intermarket”). On 5 January 2000
Mwenje was found guilty
of gross negligence in the performance of his duties and was
dismissed.







2. On 17 January 2000 Mwenje
appealed to the chief executive officer against the termination of
his employment, but that appeal
was dismissed on 28 January
2000. He then appealed to the Labour Relations Tribunal (“the
Tribunal”) (now the Labour Court)
and was successful. The
Tribunal ordered that Mwenje be reinstated without loss of salary and
benefits or, alternatively, that
he be paid damages in lieu of
reinstatement. A subsequent appeal to this Court against that order
by Intermarket was dismissed
on 12 December 2003.







3. On 28 January 2004 the
legal practitioner acting for Intermarket wrote to the legal
practitioner who was then acting for Mwenje
as follows:






“… Our
client is not reinstating yours and is exercising its option to pay
damages. By copy of this letter we so advise your client.






Please
may you kindly have your client’s details with regard to the
damages he suffered, if any.”







4. Thereafter, Mwenje was paid
the sum of $6 964 433.38, which was back-pay for the period
extending from 4 January
2000 to 24 July 2002, the date
when his reinstatement was ordered by the Tribunal.







5. On 12 July 2004, after
negotiations between the parties had been held, the legal
practitioner acting for Intermarket wrote
to Mwenje as follows:







“Further to your letter of the
7th July 2004, I confirm that I forwarded your letter
under discussion to Intermarket who have given us authority to offer
to you
twelve months’ salary as damages, which comes to the sum of
$6 672 097.20. This is the final offer that they are
making
to you and should you decline this, then we will push for a
date in the Labour Court.





No
more further correspondence shall be entertained in this matter.”







6. On 15 July 2004 Mwenje
wrote to the legal practitioner acting for Intermarket as follows:






“Further
to our conversation and offer of 12 months’ salary. I have agreed
to your offer.






Since
you are aware of the problems that I am facing: (1) School fees


(2)
Health





I
was hoping you release the money as quickly as possible so that I can
attend to these problems.”







7. On 21 July 2004 Mwenje
was paid the sum of $3 691 592.65 by cheque. He then
signed the following acknowledgement:






“I,
AARON MWENJE, do hereby acknowledge that I have received a cheque in
the sum of $3 691 592.65 … from my former employer,
Intermarket Building Society, representing twelve (12) months’
salary less deductions. I accept that this is in full and final
settlement of any claims for damages I have as compensation in lieu
of reinstatement.”







The acknowledgement was signed by
Mwenje in the presence of two persons who signed the acknowledgment
as witnesses.







8. Mwenje alleged that after
receiving the cheque and signing the acknowledgement on 21 July
2004 he wrote the following on a
blank sheet of paper:






“Comment






This cannot be said to be the
full and final settlement of my claims for damages like you mentioned
in the acknowledgement. We still
have so many outstanding issues to
settle. However, as you are aware from our previous discussions I
need to pay school fees for
my daughter doing Form Three. The six
months’ salary you are offering is to me a relief, and like what
you suggested let’s
meet in court for further quantification on all
outstanding issues.”







Mwenje alleged that he left the
above-mentioned document with the secretary of the legal practitioner
acting for Intermarket, from
whose office he had collected the
cheque.







9. Subsequently, Mwenje filed an
application in the Labour Court seeking a fresh quantification of
damages in lieu of reinstatement.
That application was dismissed by
the Senior President of the Labour Court on 22 October 2004.







Aggrieved by that decision,
Mwenje appealed to this Court.





In
dismissing the application the Senior President said the following at
pp 6 and 8 of the cyclostyled judgment:






“I have carefully looked at the
applicant’s letter of the 15th July 2004 and the
way the acknowledgement was worded. The contents of the two
documents leave me convinced that a final position
was reached by the
parties and that position was that the applicant would be paid twelve
months’ salary as damages for loss of
employment. The
acknowledgment was drawn up as a result of the applicant’s own
acceptance, in writing, of the respondent’s
offer. That
acceptance, which was made in writing, was not conditional. …





My
finding, therefore, is that there was a binding agreement between the
parties. Apart from telling the court that he was compelled
by need
to sign the acknowledgment, the appellant (applicant) openly admitted
that he freely signed the document at Mr Biti’s
office. That
act of signing the acknowledgment is consistent with his acceptance
of the respondent’s offer as clearly stated
in his letter of the
15th July 2004. The Courts are enjoined to protect
the sanctity of contracts. The appellant (applicant) cannot
therefore be allowed
to pull out of an agreement which he voluntarily
entered (into).”






In
reaching that conclusion the learned Senior President rejected
Mwenje’s allegation that when he collected the cheque from the
legal practitioner’s secretary he left with her a document in which
he disputed that he had received the cheque in full and final
settlement.





I
am in complete agreement with the Senior President. In my view,
this was a hopeless appeal that had no merit whatsoever. That
is
why this Court dismissed it with costs after hearing submissions by
the parties.















CHIDYAUSIKU
CJ: I agree.














ZIYAMBI
JA: I agree.
















Honey & Blanckenberg,
respondent's legal practitioners