Zimbabwe Broadcasting Corporation (Pvt) Ltd v Irvine Mhlanga

### Preamble
Judgment
No. SC 58/21
Civil Appeal Case No. 1
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DISTRIBUTABLE:		(55)

ZIMBABWE     BROADCASTING     CORPORATION   (PVT)     LTD

v

IRVINE     MHLANGA

SUPREME COURT OF ZIMBABWE

BHUNU JA, MATHONSI JA & CHITAKUNYE AJA

HARARE 9 OCTOBER 2020 & 24 MAY 2021

Ms R. Magundani, for the appellant

Ms R. T. Muchenje, for the respondent

CHITAKUNYE AJA.  		This is an appeal against the whole judgment of the Labour Court handed down on 28 June 2019 dismissing the appellant’s appeal against an arbitral award issued on 21 June 2018.

After hearing arguments from counsel for both parties, we dismissed the appeal with costs on 9 October 2020. We indicated that our full reasons will follow and these are they.

The respondent was employed by the appellant as Legal and Corporate Services Manager. In January 2015, the respondent was dismissed from employment following internal disciplinary proceedings instituted by the appellant. The dispute went to compulsory arbitration. Pursuant to the arbitration proceedings on 14 July 2016 the arbitrator cleared the respondent of all the charges of misconduct levelled against him and ordered his reinstatement. The order for reinstatement provided that respondent was to be paid salary and benefits arrears from the date when they were unlawfully reduced to the date of reinstatement. Neither party appealed against that initial determination by the tribunal.

The respondent was duly reinstated and remained in employment until the expiry of his contract in March 2017. The appellant apparently failed to meet some of the requirements in the order for reinstatement. In pursuance of the unfulfilled terms of the reinstatement order the respondent lodged an application for quantification of the award in respect of the unfulfilled terms before a tribunal. The respondent claimed that the appellant had not paid back pay and benefits using the initial salary scale prior to his ill- fated dismissal.  He further alleged that the appellant had not complied with the initial award which directed it to pay him his salary and benefits arrears from the date they were unlawfully reduced to the date of reinstatement. On the 21 June 2018 an arbitral award quantifying the award was issued in favour of the respondent ordering the appellant to pay US$ 251 653.84 being salary and benefits due from the unlawful downward variation of the respondent’s remuneration package.

The appellant was aggrieved by the determination of the tribunal and lodged an appeal to the Labour Court. Before the Labour Court the appellant raised four grounds of appeal.

In its ruling the court a quo aptly dismissed three of the grounds on the basis that they related to issues determined in the initial award which the appellant had not appealed against or even challenged in any way. Instead the appellant had sought to comply with the award by reinstating the respondent to his former job. It was only because of its alleged failure to fully comply with the terms of that initial order which resulted in the respondent seeking quantification of the award in respect of the aspects that had not been fulfilled. The only ground of appeal that was in tandem with the challenge on the quantification of the award was that:-

“The honourable Arbitrator failed to appreciate that the respondent had voluntarily suspended the operation of the arbitral award in his favour. In suspending the award the Respondent waived his rights and any finding to the contrary by the Honourable Arbitrator was grossly unreasonable and went against precedent.”

The court a quo’s finding on the issue of waiver was to the effect that the respondent had not waived his rights hence it dismissed this ground of appeal as well. In reaching that conclusion the court a quo at p 3 reasoned that:-

“The respondent simply put on hold the enforcement or execution of an award that had already been handed down in his favour. The appellant has not clarified in what manner an extant award issued after a fully contested hearing could be suspended by the respondent.

Delaying execution of an award can certainly not be regarded as a waiver of the judgment creditor’s rights. It can be done for a number of reasons, such as engaging the judgment debtor on mutually acceptable time frames and modalities of compliance. The judgment creditor, having gone through all the litigation processes leading to a judgment in his favour, cannot be said to have waived his rights if he decides to engage the judgment debtor before resorting to the coercive machinery of enforcement available to him at law.”

The appellant was aggrieved by the court a quo’s ruling/determination in this regard hence this appeal. The grounds of appeal were couched as follows:

“1. The court a quo grossly misdirected itself on the facts, which misdirection amounts to an error at law in finding, contrary to evidence on record that there was no basis for the averment that the respondent waived his rights in the arbitral award.

2. Consequently, the court a quo erred in upholding quantification based on an award which had been abandoned and/or on salary scales which the respondent had waived.”

Ms Magundani, for the appellant, submitted that the respondent waived his rights to the arbitral award. To buttress that point counsel referred to the appellant’s letter dated 13 September 2016 to the respondent in which it stated, inter alia, that:

“The Corporation has accepted your decision to set aside the arbitral award pertaining to unilateral variation of salaries pending the outcome of the matter referred to the Labour Court by other staff members and former employees.”

As if oblivious of the fact that this was appellant’s letter and not respondent’s, counsel pitched her argument on these averments as proof that respondent had waived his rights to the award ignoring the contents of respondent’s letter of 12 September 2016.

On the other hand Ms Muchenje, for the respondent, contended that the respondent did not waive his rights to enforce the arbitral award. At the most the respondent’s letter of 12 September 2016 simply referred to suspension, which is not the same as waiver, of part of the award. Counsel also contended that in any case a litigant cannot set aside an arbitral award. Counsel’s contention was in tandem with the finding of the court a quo.

The issue for determination was whether or not the court erred in finding that the respondent did not waive his rights to the award.

The question of whether one has waived their rights is a question of fact which must be evident from the evidence adduced.

The doctrine of waiver, as defined in Black’s Law Dictionary, second edition, is the intentional or voluntary relinquishment of a known right. Waiver is when a person intentionally and with full knowledge, gives away his right to exercise or chooses not to exercise that right which the person would otherwise possess. In Barclays Bank of Zimbabwe Ltd v Binga Products (Pvt) Ltd 1985(3) SA 1041 (ZS) at 1049 B-E DUMBUTSHENA CJ aptly stated:

“I seek, however, to highlight the principle of waiver set out by Lord DENNING MR at 140a-c where he said:

‘The principle of waiver is simply this, if one party, by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted on, intending that the other should act on that belief, and he does act on it, then the first party will not after wards be allowed to insist on the strict legal rights when it would be inequitable for him to do so.’

A party wishing to rely on waiver must allege and prove that the other party clearly waived its rights. In this regard in Chidziva & Others v ZISCO LTD 1997(2) ZLR 368(S) at 385B-C this Court stated as follows:

“In cases where the defendant relies on waiver as a defence, what is required of the defendant is that he must allege and prove a decision by the plaintiff to abandon the right which is being asserted against the defendant. The decision must have been conveyed to the defendant: Traub v Barclays National Bank Ltd 1983(3) SA 619 (A) at 634. It is trite law that the decision to abandon a legal right may be made in one of two ways:

an express abandonment of the right; or

an implied abandonment.”

Where reliance is placed on conduct, the conduct must be clear and not be left to speculation. In Agricultural Bank of Zimbabwe Ltd t/a AgriBank v Machingaifa & Another SC 61/07 at p 6 this court stated as follows:

“The appellant has argued that the court a quo should have dismissed the application on the ground that the respondents had by their conduct waived whatever rights they might otherwise have had.

In terms of common law, there is a presumption against waiver. R H Christie in The Law of Contract in South Africa, 3rd edition states at p 488:

‘Having gone to all the trouble to acquire contractual rights people are, in general, unlikely to give them up. There is therefore a presumption, even in some cases a strong one, against waiver. That means not only that the onus is upon the party asserting waiver to prove it, but that although, as in civil cases, the onus may be discharged on a balance of probability, it is not easily discharged……’

To this it is only necessary to add that it has repeatedly been held that clear proof is required, especially of a tacit as opposed to an express waiver …”

What emerges from the above authorities is that a party must adduce clear proof that the other intended to waive his rights. The intention must be clear and must not be left to speculation.

In casu, the letter that appellant sought to rely on was the appellant’s own letter. The words sought to be relied on were those of the author of that letter. The appellant was at pains to adduce evidence from the respondent showing that he was waiving his rights to the award. In our view the court a quo was on point in finding that there was no waiver. It may be pertinent to note that the respondent’s letter of 12 September 2016, which the appellant responded to on 13 September 2016, did not refer to waiver of rights to the award. The part of the letter which appellant interpreted as waiver states:

‘That I suspend part of the arbitral award specific to unilateral variation of salaries.”

To suspend is essentially to discontinue or cease temporally; to postpone; debarring temporarily from a privilege. In casu, the respondent was postponing the coercive enforcement of the part of the award dealing with unilateral variation of salaries. That postponement cannot surely be termed waiver. As alluded to above, waiver entails abandoning intentionally or relinquishing voluntarily the enforcement of rights in a party’s favour. It is certainly not a deferment or postponement or temporary stay of enforcement of the rights to a future date or awaiting the determination of some other process. Once waived, a right may not be enforced whereas a deferment or postponement entitles one to decide when to enforce the right whose enforcement it had postponed or deferred. A right is not extinguished or set aside by a postponement or suspension of its enforcement.

There is nothing in the respondent’s letter of 12 September 2016 to suggest an intention to waive his rights to the award either expressly or impliedly. It is the appellant who, in its own wisdom or lack of it, decided to interpret the term ‘suspend’ to mean set aside or waive. This was clearly wrong as the respondent’s letter did not convey such a meaning at all.

It is trite that an appellate court will interfere with a lower court’s decision on findings of fact only where such findings are irrational or are in defiance of logic or contrary to the evidence before it. See Hama v NRZ 1996(1) ZLR 664 (S).

In casu, the court a quo did not misdirect itself in its conclusion on this issue. The finding was consistent with the evidence before it and was not irrational in any way.

As regards costs we were of the view that there was no reason for costs not to follow the cause. The appeal was clearly without merit and applicant must bear the costs.

For the above reasons, the appeal was dismissed with costs.

BHUNU JA:   			I agree

MATHONSI JA:      			I agree

Scanlen & Holderness, appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners.