Lazarus Jimu v The Cheeseman

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/538/2016
HARARE, 12 JULY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/526/2005
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/538/2016

HARARE, 12 JULY 2016 &				         CASE NO LC/H/526/2005

9 SEPTEMBER 2016

In the matter between

LAZARUS JIMU								APPLICANT

Versus

THE CHEESEMAN								RESPONDENT

Before the Honourable Hove J

For the Applicant     I Mataka  (Legal Practitioner)

For the Respondent  I Chagonda (Legal Practitioner)

HOVE J:

In March 2009 parties in this matter appeared before the Labour Court in an application for quantification of damages due to the applicant for unlawful dismissal.

The court issued an order whose relevant portion reads:

The respondent asked for the matter to be withdrawn from the roll as they are negotiating a possible settlement.

Should either party wish to resuscitate this application they can do so by writing to the Registrar.

Nothing was heard from the parties thereafter until this year 2016. When the applicant wrote to the Registrar seeking to resuscitate this application. The matter was enrolled.

On the date of hearing, the respondent raised preliminary issues.

Firstly, it was submitted that the cause of action arose when the court made its order on 12 March 2009 and therefore the claim had prescribed by the time the applicant sought to resuscitate it. The respondent argued that the matter was withdrawn and as such there was nothing before the court. If the applicant wanted to pursue the matter he ought to have done so within two years from the date of the order of withdrawal.

The court was referred to the following cases in support of this proposition:

Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (HC), LTA Construction Ltd v Minister of Public Works & Land Affairs 1992 (1) SA 837 (C), Desai v Desai 1996 (1) SA 141.

I did not find the cases to be on point on the issue before the court. The cases where not dealing with the argument that is before me, that the cause of action can be the date when a matter was withdrawn with a rider that either party could resuscitate the claim (in the event that the parties failed to settle the matter amicably).

Section 94 of the Labour Act [Chapter 28:01] (“the Act”) talks of the date of cause of action and explains in subsection (3) that a dispute or unfair labour practice shall be deemed to have first arisen on the date when—

The acts or omission forming the subject of the dispute or unfair labour practice first occurred; or

The party wishing to refer the dispute or unfair labour practice to the labour officer first became aware of the acts or omissions referred to in paragraph (a), if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred.

So the cause of action in casu arose on the action of the termination of employment of the applicant. This is so because that is what forms the subject of the dispute or unfair labour practice.

The referring of the matter for conciliation, then arbitration, then an appeal before this court interrupted the running of prescription. So the matter is, in terms of section 94 of the Labour Act, not prescribed as there was interruption of prescription.

I do not accept that the cause of action arose when the matter was withdrawn to facilitate out of court negotiations. The matter was pending before the court since the court had indicated that either of the parties could resuscitate the case. I find that there is no merit in this preliminary point.

The other preliminary point that was raised was that there are now “two” applications before the court.

There are no new matters before the court. The applicant merely filed supplementary submissions and heads of arguments in the old matter filed with the court. The case number remained LC/H.526/05. There is thus no two applications before the court.

The supplementary affidavit could be challenged for perhaps seeking to place before the court issues that had not been placed before the court earlier, when the application for quantification was first placed before the court. But it cannot be argued that the claim is fatally defective because there are two cases before the court.

I find that this preliminary point has no merit.

The next preliminary point raised that I wish to address lastly is that the applicant was not being honest with the court. It was averred that an amount of $3 045-00 was received by the applicant in full and final settlement and that the applicant waived his rights to reinstate the claim or any other claim against the respondent.

The memorials of the said agreement were produced. The first letter dated 11 February 2009 was a without prejudice letter offering a settlement. It was addressed to the applicant and the applicant was to sign in acknowledgement. He signed. He does not deny it. Then there is a second letter which the applicant also signed and he does not dispute signing it. The letter states in part as follows:

“I, Lazarus Jimu, I D number 63-850697 F 63, do hereby accept the sum of US$3 045-00 in full settlement of my claim, against Cheese  Galore (Pvt Ltd t/a The Cheeseman. I accept this amount as an “out of court” settlement.

I hereby state that this matter is now concluded to my satisfaction and I will withdraw my claim from the Labour Court of Zimbabwe. I also confirm that I will, at no date in the future, reinstate this claim or any other claim against Cheese Galore (Pvt) Ltd t/a ‘The Cheeseman’”.

The respondent’s lawyer advised the court that the claim was settled. The applicant appended his signature to the documents. The applicant is thus bound by this settlement and he clearly waived his rights.

The applicant does not explain the circumstances surrounding the signing of the documents. He does not explain why he signed documents that purported to be in full settlement. He merely says I was given $3 045-00 to cushion me against the financial hardships I was facing. The documents that he signed do not talk of cushioning him. But of payment in full.

It was in my opinion, incumbent on the applicant to explain the circumstances that led to him signing the document that gave his rights away, without a plausible explanation, the documents he signed will be taken to represent the truth of the matter.

The applicant also does not explain when the negotiations were initiated and when they failed. He glosses over the most important aspect of his claim.

The fact that he also took long to resuscitate his claim is also unexplained. He just accepted $3 045-00 and kept quiet for several years. The probabilities are that he knew that the settlement was in full and final settlement. His explanation that he had no resources to engage a lawyer are highly improbable because he could still have pursued the matter in person or refused to sign a document he was not in agreement with. Further he had decided to act as a self-actor and represent himself. He could thus have pursued his claim in person as per his own decision in terms of an affidavit he filed that since he could not afford the services of a lawyer, he was going to be a self-actor. See page 21 of the supplementary submissions.

The court has been referred to the case of Halwick Investments v Nyamwanza GS SC 48-09 where the court stated that:

“When one of the parties, by his words, actions or inactions, has evinced an intention not to enforce one or more or all of his rights under the contract we select whichever word seems most appropriate from a list which includes abandonment, acquiescence, release, renunciation, surrender and waiver of these words by far the most commonly used is waiver…”

Waiver is not to be lightly presumed as was stated in Chidziva & Ors v ZISCO Ltd 1997 (2) ZLR 368 (S).

But where it can be shown that the applicant actually signed a document waiving his rights, in fact not once, not twice but three times on the same day although in the third document he signed as a witness.

I am not convinced that the payment of $3 045-00 was to cushion him but was in final settlement of the claim.

Having found so, the preliminary point that the applicant settled with the respondent is upheld, it is found to be one with merit.

Vis a vis the issue of costs, I am not persuade that there has been established a case for punitive costs on the higher scale.

The preliminary point that the matter was settled is upheld.

The application is accordingly dismissed with each party bearing its own costs.

Chambati, Mataka & Makonese, applicant’s legal practitioners

Atherstone & Cooke, respondent’s legal practitioners