REPORTABLE
(31)
Judgment
No. SC 35/04
Civil
Appeal No. 98/03
GOROMONZI
RURAL DISTRICT COUNCIL
v
TIRIVANHU GODWIN MUDZIMU
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
CHEDA JA & GWAUNZA JA
HARARE,
JANUARY 26 & JUNE 10, 2004
T
Bhatasara, for the
appellant
G
E Mandizha, for the
respondent
CHEDA JA: The appellant is a
District Council constituted in terms of the Rural District Councils
Act [Chapter 29:13].
The respondent was employed by the appellant in 1995 as its chief
executive officer. On the respondent being appointed the
appellant
sent a letter to him, advising that his appointment was with effect
from 1 December 1995. The letter read in relevant
part:
Council
is pleased, therefore, to formally offer you the post of Chief
Executive Officer on the following general terms and conditions
and
in conformance with its approved conditions of service.
The
letter then went on to list items such as the probation period,
salary, bonus and others, but said nothing about retirement.
On 3 January 2000 the
appellant sent a letter to the respondent worded as follows:
RETIREMENT
FROM COUNCIL
After
consultations with relevant people, and knowing that you are going to
reach the age of sixty in February 2000, also as per our
Conditions
of Service, we wish to give you three months notice to retire from
Councils service.
The notice period will take
effect from 3 January 2000 to 30 March 2000. Your
terminal benefits will be arranged by the
Treasury Department.
We would like to thank you for
the good service you have rendered to council and wish you well for
the future.
It
was signed by O T Juru as chairman.
On seeing this letter the
respondent protested and said, among other things, that his
retirement age was sixty-five and not sixty.
The respondent eventually took
the matter to court, challenging the retirement age of sixty and
seeking a declaration that the letter
of notice was a nullity. The
High Court decided the matter in his favour. The appellant has now
appealed against that decision.
The main issue to be determined
is whether the retirement age for the respondent was sixty or
sixty-five.
The
appellant filed its grounds of appeal in which it stated:
1. The
learned judge erred in her determination that the letter
sent to the applicant (now the respondent) in January 2000 is a legal
nullity on the basis that the termination of employment by
way of
retirement by virtue of old age was being done on notice.
2. The learned judge erred in her
determination that there was no pre-determined date for the
retirement of the respondent.
3. The learned judge erred in her
determination that the guidelines conditions of service as approved
by the Minister did not validly
set the retirement age of all
employees at sixty.
4. The learned judge erred in her
determination that the conditions of service, assuming that they were
approved after the respondent
was engaged, would not apply in
retrospect.
5. The learned judge erred in her
determination that there was no glaring absurdity to hold that the
conditions of service should
not apply in retrospect.
On
ground 1, it does not make any difference whether the letter of
notice to retire was merely to advise the respondent, or just
to
remind him, of his pending retirement. The only problem is that the
date given for such retirement was disputed and the appellant
then
tried to enforce it.
On grounds 2 and 3, the
question is whether, in the absence of any clearly pre-determined
date, sixty was the age for the respondents
retirement.
The respondent filed a copy of
the appellants Conditions of Service, which he says was made
available to him when he was engaged
by the appellant. It stated on
p 5:
PENSIONABLE
AGE AND RETIREMENT AGE
(1) Officers
and employees shall retire at sixty-five years of age provided early
retirement can be taken in line with the relevant
terms and
conditions of each pension fund.
(2)
.
The
document concerned is not dated, and the appellant has not shown that
this document is not applicable to the respondent.
In fact the appellant seems to
suggest that the Minister of Local Government and National Housing
(the Minister) approved
new Conditions of Service which were
proposed and drafted by the respondent himself in 1996.
There is nothing to show that
the Minister approved the new conditions. That is why the
respondent kept asking which conditions
were applicable and was
finally told that the proposed conditions could be used if they were
acceptable to his Council.
Even if the Minister had
approved the new conditions, they cannot have a retrospective effect
to bind the respondent. They do
not state that they are intended to
have that effect, as suggested in grounds 4 and 5 of the notice of
appeal.
Accordingly, the only
conditions that remain valid and binding on the respondent are those
which give his retirement age as sixty-five.
In the result, there is no
merit in the appeal and it is dismissed with costs.
SANDURA JA: I
agree.
GWAUNZA JA: I agree.
Kantor & Immerman,
appellant's legal practitioners
