Court name
Supreme Court of Zimbabwe
Case number
SC 6 of 2007
Civil Appeal 402 of 2005

Mupotola v Southern African Development Community (402/05) (SC 6 of 2007, Civil Appeal 402 of 2005) [2007] ZWSC 6 (27 May 2007);

Law report citations
Media neutral citation
[2007] ZWSC 6

No. SC. 6/07

Appeal No. 402/05




JANUARY 30, & May 28, 2007

for the appellant

V Hwacha
, for the respondent

ZIYAMBI JA: This is an appeal
against a judgment of the Labour Court setting aside an arbitral
award made in favour of the appellant.

The facts forming the background
of the appeal are as follows-

On 19 October 2001 the respondent
wrote to the appellant in the following terms:

“I am pleased to offer you, on
behalf of the SADC Multi donor hub, the position Trade/SPS /Advisor
effective 1 November 2001 to 31
October 2004. The terms of reference
of the position and the contract are attached.

the duration of this assignment or until otherwise modified, your
duty station shall be based in the SADC Food, Agricultural and
Natural Resources Unit in Harare, Zimbabwe.”

Thereafter, on 21 October 2001,
the parties signed a document which was termed a contract of
employment (‘the first contract’).

Paragraph 4 of the first contract
provided that the appellant’s salary “shall be paid as stipulated
in the letter of appointment”.
However, as will be seen from the
letter of appointment, no salary was stipulated therein. That
notwithstanding, it appears that
the appellant commenced employment
with the respondent on the basis of this letter of appointment.

On 9 January 2002, the appellant
received a second letter of appointment. In that letter she was
offered “a long-term consultancy
appointment as Trade/SPS
specialist of the SADC Food Security and Rural development Hub
(hereinafter referred to as “the Hub”
or “the Multidonor Hub”)
another operating unit of the respondent. The period of employment
stated therein was 1 December 2001
to 30 November 2002. The salary
was stated to be 5 000 United States dollars per month inclusive of
all benefits. The appellant,
on 11 February 2002, indicated her
acceptance of that offer of employment (“the second contract”) by
signing an attached copy
of the letter. It appears that by
agreement, the period of employment was extended to 31 January 2003.
Thereafter the respondent,
citing funding problems, did not further
extend or renew the second contract.

The appellant, dissatisfied with
the respondent’s failure to extend the second contract, reported
the matter to the Ministry of
Public Service, Labour and Social
Welfare, claiming that she had been unlawfully retrenched. The
matter was referred to compulsory
arbitration resulting in the
following award:

“SADCC (sic) HUB is
ordered to pay M Mupotola all outstanding salaries to date and
up to 31 October 2004 as the fixed term contract
to this
date is valid and is still in force.”

The respondent noted an appeal to
the Labour Court, which set aside the arbitral award on the basis
that the second contract had novated
the first contract which was
therefore no longer of any force and effect.

The appellant took two points on
appeal before us. They were as follows -

(a)   That the court a
erred in finding that the second contract had novated
         the first;

(b)     That
the court a quo erred in entertaining  the appeal from
the arbitrator’s           decision when
that appeal was not noted by a person with authority to do

In support of the second
contention Mr Zhou drew the Court’s attention to a letter
from the Executive Committee of the SADCC secretariat which reads as

“Mr M. Taqi Sharif


My letter dated 19 January 2004
on the above refers.

Ms Moono Mupotola has advised me
that you could not pay her as directed because you were consulting
with the Secretariat on the ruling
of the labour tribunal.

As I am not aware of any
consultation between you and the Secretariat on this matter, you are
once again requested to pay Ms Moono
Mupotola according to the ruling
of the Administration Award.

I hope payment will be made to
her without further delay.”

The learned President in the
court a quo dealt with this issue thus:

“When the parties appeared
before me on 18 October 2005, the evidence (the Executive Secretary’s
letter), now being relied on by
the respondent was not part of the
record. The respondent cannot therefore be at liberty to bring new
evidence through submissions.
It was entirely open to the respondent
to apply to this Court to be granted leave to file SADCC Statutes
which would have indicated
the powers of the Executive Secretary and
the limitations of same on the part of the Regional Director. It is
the Regions Office
that dealt with the Respondent’s employment
throughout and the Court is not aware whether or not the Regional
Director’s powers
were only limited to the hiring of staff. The
appeal is therefore properly before the Court and the Executive
Secretary’s letter
of 30 January 2004 did not seek a withdrawal of
the appeal. This Court cannot ask the appellant to withdraw.”

There was indeed no evidence
before the court of the authority structures within SADC and,
consequently, the significance of that
letter. The appellant could
have placed that evidence before the court if it chose to do so.
Having elected not to place that evidence
before the court, it was
improper for the appellant’s legal practitioner to attach to his
closing submissions a letter which did
not form part of the record
before the court in the expectation that the court would take that
letter into consideration. I find
no fault therefore with the ruling
of the learned President on this issue.

I turn to consider the first
issue which is whether or not the first agreement was novated by the
second. Novation means “replacing
an existing obligation by a new
one, the existing obligation being thereby discharged”. See The
Law of Contract in
South Africa Third Ed by R H Christie
at p 498.

The above definition presupposes
that both the existing obligation and the new one arise out of valid
contracts. “When parties
novate they intend to replace a valid
contract by another valid contract”. See Swadif (Pvt) Ltd v
1978 1 SA928 (A) at 940 quoted by Christie in the Law of
Contract in South Africa, supra.

The starting point, therefore,
in determining this issue is to consider whether the first agreement
constituted a valid contract.

The first contract is silent on
the issue of salary. The provision for the salary to be paid to an
employee is a vital and essential
term of a contract of employment.
Failure to provide for the payment of a salary in my view renders the
agreement null and void.

This being so, the first
agreement was a non event and there could be no novation of a
contract which did not exist. Accordingly,
the only agreement which
governs the parties is the second contract which constituted a valid
contract of employment. It is common
cause that the second contract
terminated on 31 January 2003.

I have come to the same
conclusion as the court a quo, namely, that the first
agreement is of no force and effect, although for slightly different
reasons. However, I see no reason to deprive
the respondent of its

In the result, I find no merit in
the appeal and it is hereby dismissed with costs.

GWAUNZA JA: I agree.

GARWE JA: I agree.

Gill, Godlonton & Gerrans,
appellant's legal practitioners

Dube, Manikai & Hwacha,
respondent's legal practitioners