Giles M. Masango v Sunway City (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//25
HELD AT HARARE 20 FEBRUARY 2025
CASE NO. LC/H/1311/25
AND 4 MARCH 2025
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO. LC/H//25

HELD AT HARARE 20 FEBRUARY 2025			CASE NO. LC/H/1311/25

AND 4 MARCH 2025

IN THE MATTER BETWEEN:

GILES M. MASANGO						APPLICANT

AND

SUNWAY CITY (PRIVATE) LIMITED				RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant					Mr. S. Chatsama

For Respondent				Mr. P. Dube

MURASI J.,

On 22 November 2024, this Court rendered judgment in which it dismissed Applicant’s application for review. Applicant is dissatisfied with that decision and intends to approach the Supreme Court for relief. This therefore is an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act, (Chapter 28:01) as read with Rule 43 of the Labour Court Rules, 2017. Applicant’s prospective grounds of appeal are couched as follows:

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 the 4th of November 2019 retirement notice but rather freely and voluntarily retired himself through his own letters.

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

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 4th November 2019 and that such rules formed the basis for the retirement.

The court a quo erred grossly (and) 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 1st May 2020 to 31st December 2020 was a form of contractual agreement between the parties that settled the retirement dispute.

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.

Preliminary Issue

At the commencement of the proceedings, Mr. Dube stated that he had a preliminary point to raise. He submitted that Applicant was required in terms of the Rules to file a Chamber Application but instead, had filed a Court Application. He further submitted that the Rule was couched in peremptory terms. After a brief discussion about the provisions of Rule 24 that provides that an adoption of an incorrect form of application does not necessarily lead to the dismissal of an application, Mr. Dube later stated that he would not persist with the submission.

Applicant’s Submissions

Mr. Chatsama stated that he was going to abide by the documents filed of record. In the Founding Affidavit, the following submissions were made:

“Para 17: In dismissing the application this honourable court also held that the letter of 4th November 2019 was not acted upon by the Respondent in retiring Applicant but rather that Applicant voluntarily retired himself.

Para 18: It is submitted that in arriving at the above finding, the court misdirected itself at law. It is evident throughout the record of proceedings for the court application for review that it is indeed the Respondent who retired Applicant. Respondent is all its correspondence to Applicant and actions as expressed in its letters stated this position with emphasis. The court ought to have analyzed evidence submitted by both parties.

Para 19: The notice of retirement of 4th November 2019 was never withdrawn or cancelled and remained valid.

Para 20: The Applicant challenged the legality of the retirement notice which eventually led to his retirement. The court ought to have decided on the legality of the retirement notice and failure to do so was a gross misdirection and an error at law.

Para 22: Further, the court merely stated Clause 7 (a) of the employment contract and did not comment further on it. It is submitted that failure by the court to substantively address this issue is irregular and a gross misdirection at law.

Para 23: Further, the court did not address a critical argument from Applicant that the Sunway City Staff Rules and Regulations, Policies and Procedures were not yet operational as at 4th November 2019.

Para 26: This Honourable court misdirected itself in considering payment of salaries and benefits for the period 1st May 2020 to 31st December 2020 as ‘full and final settlement’ of the retirement dispute.

Para 27: It is submitted that the dispute between the parties was whether it was proper for Applicant to be retired at the age of 60 years as opposed to 65 years and the court judgment does not show that this issue was properly ventilated by this Honourable court in arriving at its decision. Failure to do so is a misdirection at law. I submit that payment of outstanding salaries and benefits cannot be considered as a retirement package.”

The heads of argument filed on behalf of the Applicant follow the trend that has been referred to above in the Founding Affidavit. Case law is cited in support of the averments such as Charles Kazingizi v Revesai Dzinoruma HH 106/06, S v Makawa & Anor 1991 (1) ZLR 142 and others.

The Court also sought clarifications from Mr. Chatsama in the following manner:

“Court:	After the November 2019 letter, the Applicant then made a counteroffer which was accepted by the Respondent?

Answer: That is the position we are disputing.

Court: He made a proposal to the Respondent?

Answer:	Yes. (Would prefer to call an election)

Court:	That election was accepted by the Respondent?

Answer:	Yes.

Court:	The Applicant later agreed to what was offered by Respondent as final settlement of employment relationship?

Answer:	That is what appears on the record. Applicant provided the Account numbers where money was to be deposited.

Court:	Applicant accepted the money?

Answer:	Yes.

Court: He agreed with the amounts as deposited by the Respondent?

Answer:	There was no room for agreement, it was just a deposit.”

Respondent’s Submissions

Mr. Dube also stated that he was going to abide by the documents filed of record. He submitted that Applicant consciously omitted to refer to the letters that he had written to the Respondent as shown by the letter of 27 October 2020 which stated that he accepted the retirement and the payment of salaries from may 2020 to December 2020. Mr. Dube further stated that the letter in question should be accorded its plain literal meaning as it was clearly unambiguous. He argued that the Appellant had accepted the money and this was a compromise between the parties. He further submitted that the Applicant had failed to demonstrate that the findings of the court in this regard were irrational in the circumstances. He also stated that Applicant does not deny receiving the amounts of money deposited into the accounts supplied by himself. He further argued that once there is an admission, there is no requirement to adduce evidence to prove such issue.

In Respondent’s heads of argument, it was argued that Applicant had not shown the extent of the court’s misdirection.

“Para 21: The Respondent contends that there was full and final settlement of the matter which renders the question of the Applicant’s retirement cadet question.

Para 25: The questions of law must demonstrate that the labour court committed misdirections on the facts which are so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. The applicant fails in its intended grounds of appeal to speak to the misdirections.”

Respondent’s heads of argument also cited the following precedents:

ANZ Grindlay Bank (Zimbabwe) (Pvt) ltd v Hungwe 1994 (2) ZLR 1 (S), Muyaka v BAK Logistics (Pvt) Ltd SC 39/17, Reserve Bank of Zimbabwe v Corrine Granger & Anor SC 34/2001, amongst others.

ANALYSIS

It is trite that an appeal to the Supreme Court as provided in section 92 F (2) should be on points law. Both parties have referred to relevant case law as to what amounts to a point of law. It will not be necessary to repeat them here. I will however need to refer to some cases not referred to by the parties. In Sable Chemical Industries Limited v David Peter Easterbrook 2010 (2) ZLKR 342 (S), GARWE JA (as he then was) had this to say:

“The position is also settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law. For an appellant to vail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection, in other words, that the determination was irrational.”

Further, MAKARAU JA (as she then was) cautioned thus in Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20:

“Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this Court to revisit the entire dispute and exercise a fresh discretion in the matter.”

It is also a truism that some legal practitioners are guilty of couching their grounds of appeal so that on the face of it, they appear to raise issues of law when in fact they do not. The words ‘on a question of law’ are added simply to give the impression that what is being raised is a question of law and yet the real issue raised in a particular ground will be clearly an issue of fact. In some instances, it is clear that what an appellant would be requesting the Superior Court to ‘re-consider’ the decision which is an issue which was addressed by MAKARAU JA (as she then was) in the Zimbabwe Institute of Management case (supra). A reading of Applicant’s grounds of appeal shows that they are based on factual findings made by the Court.

In the first prospective ground of appeal, Applicant takes issue with the finding that the retirement was made on the basis of the letter dated 4th November 2019 and not his subsequent letters to the Respondent. The second ground of appeal seeks to contest the finding of whether or not the Industrial Development Corporation of Zimbabwe Pension Fund Rules were part of Applicant’s contract of employment. The same applies to third and fourth grounds of appeal. The fifth ground of appeal is clearly meaningless and does not need any attention from the Court. The four grounds of appeal clearly raise factual issues and no point of law arises for determination by the Supreme Court. In The Trustees of the Leonard Cheshire Home Zimbabwe Central Trust v Robert Chiite & Others S 24/15, MALABA DCJ (as he then was was) made the following observation:

“Once a question requires a court to consider whether certain facts have been established in order to answer it, the court is to determine a question of fact.”

Further, in my view, there is clearly no merit in the intended appeal. This Court’s judgment refers to correspondence from both the Applicant and the Respondent which culminated in the payment of sums of money to the Applicant. I must refer to the correspondence of 27 October 2020 from the Applicant to the Respondent which is referred to on page 3 of the Court’s judgment. It reads in part as follows:

“Reference is made to your letter of 19 October 2020 the contents of which have been noted.

I note your proposal to pay me the full salary and benefits for the 8-month period pending retirement on 31 December 2020 which I accept as full and final settlement.”

Two issues stand out from this correspondence. The first is that retirement is supposed to be on 31 December 2020 and not April 2020. The second is that payment for the 8-month period is in full and final settlement. The ‘retirement date’ is not 30 April 2020 as contained in Respondent’s letter dated 4th November 2019. This is a new retirement date. Applicant agrees to the retirement date which was not the original proposal from the Respondent. The date of retirement proposed by the Respondent in the 4th November 32019 letter was 30 April 2020.

It has been stated in precedent that men/women of full age and competent understanding have the liberty to contract. Where such men/women enter into contract freely and voluntarily, such contracts shall be held to be sacred and enforceable and the courts should shy away from interfering with their freedom to contract. The evidence on the record shows that after the letter of 4th November 2019, Applicant protested but later suggested 31st December 2020 as the new retirement date. This was accepted by the Respondent. As confirmed by Mr. Chatsama in the hearing, Applicant supplied the account numbers for the payment of sums of money from May 2020 to December 2020. These sums of money were paid well after the date proposed by Respondent which was 30 April 2020. The correspondence clearly shows that the new retirement date was 31st December 2020. Applicant does not dispute this. Legally, Applicant is estopped from stating that his retirement was illegal. The courts cannot extricate him from a liability voluntarily assumed. In Magodora v Care International Zimbabwe 2014 (1) ZLR 397 (S), it was stated that it is not open to the courts to rewrite a contract entered into between parties or to excuse any of them from the consequences of that contract voluntarily entered into even if they are shown to onerous or oppressive. Applicant has been unable to explain away the predicament that he finds himself in. He cannot extricate himself from the agreement he entered into with Respondent as regards the payment of the 8-month period pending his going on retirement on 31st December 2020.

In my view, the application for leave to appeal lacks merit. In Thando Ncube v Fidelity Printers and Refineries (Pvt) Ltd SC 62/20, MAKARAU JA (as she then was) cautioned thus:

“In an application for leave to appeal, the Judge considering the application acts as a gatekeeper. The role of the judge is to keep out appeals with no prospects of success.”

The following order is appropriate.

The application for leave to appeal to the Supreme Court, being devoid of merit, is hereby dismissed.

The Applicant to meet Respondent’s costs on the ordinary scale.

SDM Chatsama Law Chambers-		Applicant’s legal practitioners

DMH Law Chambers-				Respondent’s legal practioners.