FERGUSON & PARTNERS V ZIMBABWE FEDERATION OF TRADE UNIONS & ORS

High Court, Bulawayo

Ndou J

Civil application

2 February & 27 May 2004                                                     Judgment No. HB-57-04

 Employment – contract – suspension – notice of suspension - grounds must be given – when complied with - exact compliance not required

Employment – contract – signed under duress (metus) -  voidable at request of coerced party – onus on coerced party to prove duress – what must be proved

The applicant is a partnership of doctors in a medical practice, while the respondents are their employees, the Zimbabwe Federation of Trade Unions and the union officials.  The employees fall into two categories, clerical and general staff, and nursing sisters.  The applicant sought an order confirming an interim order which (i) cancelled an agreement signed between themselves and the respondents, (ii) authorised them to proceed with disciplinary hearings, and (iii)barred the officials of the ZFTU from interfering with their practice.

The clerical and general staff had engaged in a strike action without giving notice.  A labour officer then mediated a settlement in which the workers’ union representative accepted that the action was illegal and agreed that the strikers would write letters of apology by the following day.  On that day, the nursing sisters gave an unsigned written ultimatum that they would also strike if all the workers were not reinstated, and demanded a review of their salaries.  None of the striking workers wrote the letters as agreed.  On the following day, the nurses joined the strike. The applicant then wrote all categories of workers letters suspending them on the grounds that they had not complied with the agreement reached by their union on their behalf. 

On November 6, several days later, a meeting was held between the parties at the instance of the Zimbabwe Federation of Trade Unions.  During this meeting the applicant’s lawyer was caused to leave by the respondents, leaving the applicant without legal representation, but as a result of the meeting, an agreement was signed re-instating the workers.  The applicant later argued that it was not signed voluntarily but under duress, and hence was voidable.  The applicant sought and obtained the interim order.  All the respondents filed opposing papers. A counter-application by those respondents who were employees sought a declaration that the agreement was binding, that their suspensions were null and void, and that they be re-instated in employment.  On the issue of the suspensions, they argued that the letters of suspension did not comply with the requirements of the Regulations as no reason was given.

Held, that: compliance with the requirements for suspension in the Labour Regulations Act need not be exact; the letters written to the clerical and general workers stated the reason for suspension adequately, hence the application of those workers for re-instatement was dismissed, and disciplinary proceedings against them could continue.   However, the suspension of the nursing sisters was not valid as they had not been included in the agreement to apologise.  The nursing sisters were therefore declared re-instated.

Held further that:a contract signed under duress is voidable at the instance of the coerced party.  The coerced party bears the onus of proving coercion; the applicant had demonstrated that the atmosphere of the meeting and the enforced departure of their legal representative constituted coercion. 

Cases cited:

     Broodryk v Smuts NO 1942 TPD 47

     Bull v Min of State Security & Ors 1987 (1) SA 422 (ZH)

     Gossschalk v Rossouw 1966 (2) SA 476 (C)

     Knox v D’Arcy Ltd & Ors v Jamieson & Ors 1995 (2) SA 579 (WLD)

     Sanachem (Pty) Ltd v Farmers Agri-Care (Pty) Ltd & Ors 1995 (2) SA 781 (A)

     Savvides v Savvides & Ors 1986 (2) SA 325 (T)

     Setlogelo v Setlogelo 1914 AD 221

     Smith v Smith 1948 (4) SA 61 (N)

     Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S)

    Union Government (Min of Finance) v Gowar1915 AD 426

     Zulu v Sterling Products International Ltd 1988 (2) ZLR 110 (HC)

Legislation cited:

     Labour Relations Act [Chapter 28:01] s 12B

     Labour Relations (General Conditions of Employment)(Termination of Employment) Regulations 2003 (SI 130 of 2003) s 3(1)(2)

J Tshuma, for the applicants

S Mazibisa, for the respondents

            NDOU J:        This is a matter concerning the employees and employers of Galen House.  A labour dispute has been going on for some time with various meetings held which culminated in a meeting that secured “an agreement” on exit packages or mutual termination of services for the employees from the applicants.  The applicants, thereafter, filed an application which became case HC 2518/03 in which they sought a final order;

1. setting aside the “agreement” in which applicants and respondents purportedly agreed that 5^th to 34^th respondents be paid exit packages as set out in a memorandum of agreement (annexed to the application) dated 7 November 2003.
2. authorising applicants to proceed with disciplinary hearing against 5^th to 34^th respondents, and
3. interdicting 2^nd, 3^rd and 4^th respondents from entering or coming within 30 metres of applicants’ business premises known at Galen House.

The interim relief sought and granted barred 1^st, 2^nd, 3^rd and 4^th respondents and any other officers and employees of 1^st respondent from entering or intruding

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upon the premises of applicants or from contacting by any means the applicants’ staff or employees.

            On 26 November 2003 all the respondents filed papers opposing the application.  Subsequently, on 9 November 2003 the respondents number 5 to number 34 filed an urgent chamber application under case number HB 2734/03, in which they sought a declaration that the applicants be bound by the same agreement which the applicants had sought to be set aside in case number HC 2518/03, and in the alternative they sought a declaration that their suspension of 1 November 2003 were null and void and that consequently they be declared reinstated to their employment.

            On 12 December 2003 this court directed that the two matters be combined and argued together.  From the papers filed by the parties the issues for determination can be conveniently summarised as follows-

1. Whether or not the 5^th to 34^th respondents’ suspension is valid and in terms of the law namely, Labour Relations Act [Chapter 28:01] and all subsidiary legislation.
2. Whether or not the agreement signed on 7 November 2003 is binding on the parties.
3. Whether the peace order application by the applicants against the respondents should be confirmed.

I will deal with these matters in turn.

Validity of the suspension and authority to proceed with hearing

            The affected respondents have alleged that their suspensions are unlawful on the grounds that the suspensions “did not comply with the Labour Relations Act, as amended, and the Labour Relations (General Conditions of Employment) Regulations

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as published in Statutory Instrument 13 of 2003.  The latter regulations were the applicable legislation at the time of the suspension.  Section 3 of the Regulations deals with summary suspension without pay.  It provides, inter alia:

“3(1)    Where an employer has good cause to believe that an employee is guilty of any of the conduct mentioned in paragraph (b) of subsection (2) of section 12B of the Act, the employer may suspend such employee without pay and other benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds for the suspension.

1. Upon serving the employee with the suspension letter in terms of subsection (1) the employer shall, within fourteen days before terminating the contract of employment, investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case-
   1. save a notice, in writing, on the employee concerned terminating his or her contract of employment, if the grounds or his or her suspension are proved to his or her satisfaction; or
   2. serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.”

The respondents’ suspension is based on an act of misconduct mentioned in s 12B of the Labour Relations Act, which include inter alia, “any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract” and “ wilful disobedience to a lawful order given by the employer”.  It is submitted by applicants that 5^th to 34^th respondents went on an unlawful strike on 27 October 2003.  This was accepted to be the case by their union representatives before the Labour Officer and hence the consent determination of 30 October 2003.   It is averred that by engaging in an illegal strike they committed an act which is undoubtedly within the terms of conduct inconsistent with the fulfilment of employment terms and conditions.  It is further submitted that the respondents accepted, through their union representatives, the illegality of their strike and agreed to write letters of apology so that they could return to work.  The respondents clearly

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disobeyed the order of the Labour Officer as evinced by what Nokukhanya Dube (1^st respondent) said in the founding affidavit (in the counter application) –

“The union representatives reported the matter to the Ministry of Labour.  On 30 October 2003 a conciliatory hearing was convened by the Labour Officer and it was agreed among the doctors, union representatives and the Labour Officer that the workers should write letter of apology and the employer would consider whether to reinstate them or not.  The workers, feeling they had done nothing wrong, decided not to write the letters and in any event the Labour Officer wrongly entertained the matter because she had no legal jurisdiction to deal with the case.”

            Relying on the above grounds, the applicants suspended respondents by letters dated 1 November 2003.  In short, 5^th to 34^th respondents were suspended for persisting with the unlawful collective job action notwithstanding the consent determination of the Labour Officer.  The operative part of the letters of suspension reads-

            “Dear …

This is to inform you that you have been suspended from duty at Galen House with immediate effect, following your failure to comply with the agreement signed on your behalf at the offices of the Ministry of Labour on October 30^th 2003 by the representative of your trades (sic) union.

An application for your dismissal has been dispatched to the Ministry of Labour.

Yours sincerely

(Signed)

Dr N Ndebele” (emphasis added

            The highlighted portion serves as “reasons and grounds for the suspension”.  In the circumstances the reason was given, whether such reason suffices is another matter which I will deal with later.

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            Mr Mazibisa, for the respondents, referred me to judgment of GREENLAND J in Zulu v Sterling Products International Limited 1988 (2) ZLR 110 (H).   In this case GREENLAND J held, that for the suspension to be valid, there must be compliance with the Regulations.  The enquiry is not so much whether there has been “substantial” competence with the Regulations but rather whether there had been compliance.  What Mr Mazibisa’s submission fails to take into account is that this decision, in particular the point relied upon by the respondents, was overruled on appeal in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (S).  In this case GUBBAY JA (as he then was) held at 301B-

“The categorisation of enactment as “peremptory” or “directory” with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be latter substantial obedience or fulfilment will suffice, no longer finds favour.  As was pertinently observed by VAN DEN HEEVER J (as he then was) in Lion Match Co Ltd v Wessels 1946 OPD 376 at 380, the oriterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan and objects.  The same sentiment was expressed by MILNE J in JEM Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine – 328B.  This approach received theimprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A) where, after concluding that the provisions with which he was concerned was imperative, VAN WINSEN AJA went on to enquire whether the failure in strict compliance therewith was fatal.  He propounded the following test at 646C-E:

“The enquiry, I suggest, is not so much whether there has been “exact”, “adequate” or “substantial”  compliance with this injunction but rather whether there has been compliance therewith.  This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what according to the requirements of the injunction it ought to be.  It is quite conceivable that a court might hold that, even though the position as it is is not identical with what it ought to be, the injunction has nevertheless been complied with.  In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are important.

See also Shalala v Klerksdorp Town Council & Anor 1969 (1) SA 582 (T) at 587H-588B; Nkisimane & Ors v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 433H-434E; and more recently, Ex parte Dow 1987 (3) SA 829 (D) at

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831B-D Judges in this country also have not been slow to move away from the traditionally strict approach.  See Swift Transport Services (Pvt) Ltd v Pittman NO & Ors 1975 (2) RLR 226 (GD) at 228C-229C; 1976 (1) SA 827 at 828; Macara v Minister of Information, Immigration and Toursim & Ano 1977 (1) RLR (GD) at 70H; Ex parte Ndlovu 1981 ZLR 216 (GD) at 217F-G”

            Testing the matter in the manner approved by these authorities, I am constrained to discover the object of section 3(1) of Regulations to determine whether that object is fundamental to the policy of the enactment and if it is, to decide whether it is defeated or frustrated by the non-compliance complained of.  The degree of observance and non-compliance is another relevant consideration.

            The object behind the requirement of section 3(1), that upon summary suspension of an employee without pay and other benefits the employer shall forthwith serve the employee with a letter of suspension, is predominantly the protection of the interests of the employee.  The common law remedy of summary dismissal on the ground of misconduct is no longer permissible, save in the few prescribed situations.  In terms of section 3(1) of the Regulations summary suspension is a remedy available to the employer, but the determination of whether the employee has been guilty of misconduct is placed in the hands of a hearing constituted in terms of an employment code which is registered in terms of section 101 of the Act.  Upon serving the employee with summary suspension letter, the employer shall, within fourteen days before terminating the contract of employment, investigate the matter and conduct a hearing into the alleged misconduct – section 3(2) of the regulations. 

            An investigation and the conducting of a hearing and coming up with a decision must be done with the minimum delay, thereby achieving certainty for the

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parties and involving as little disruption of their lives as possible.  Otherwise the employee is prejudiced by remaining without payment of salary during the period of suspension and unable to assume other employment.  And the employer is prejudiced by being obliged not to fill the employee’s position until such time as a favourable determination has been made – Sterling Products International Ltd v Zulu supra, at 302C-E.  That this object is fundamental to policy of this particular provision is beyond question.  In this case there is merit in the respondents’ contention that no reasons and grounds for the suspension were not given.  The highlighted portion of the letter of suspension, supra, clearly gives the reason.  The next contention is whether the letter of suspension embodying the reasons and grounds for suspension was issued “forthwith” or timeously.  On 27 October 2003, the entire clerical and general staff of applicant stopped working.  The respondents stopped working without giving notice.  It is beyond dispute that a representative of the applicant advised the respondents to go back and that those who were not prepared to do so, had to leave the premises.  The entire staff left the building.  The same afternoon a team from Commercial Workers’ Union arrived at the applicant’s premises and said that they were representing the striking employees.  The matter was referred to Ministry of Labour for mediation.  The dispute was discussed.  The respondents were advised that their strike was illegal.  The matter was resolved on the basis that the respondents were to write letters of apology and commitment by 31 October 2003 and that the applicants were to respond to these letters the same day they were received and also that applicants were to consider reinstating the respondent.  No letter was received from respondents by 31 October 2003, instead, the applicants received an unsigned

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letter from the nursing sisters giving an ultimatum that unless they applicants re-instated the clerical staff, they would join the strike.  They also sought a review of their own salaries.  On 1 November 2003 at around 0800 hours the nursing sisters walked out of work without giving the statutory notice.  As regards the clerical and general staff, the respondents’ case is that they were suspended on 27 October 2003, so, it is argued the letters do not comply with the requirement of “forthwith” in section 3(1).  Do these suspension letters served two or so days later, defeat or obstruct the object of that policy?  In my view, the degree of non-compliance was by no means great.  I am, however, not making a finding that there was such a two day delay because it seems to me that the papers before me show that although the clerical and administration staff downed tools on 27 October 2003 the applicant only suspended them, in writing, on 1 November 2003.   Whichever way one looks at the facts the object of the Regulations was not frustrated or materially impaired by the applicants proceeding in the manner they did against clerical and administrative staff.

            The nursing sisters’ case is different.  They were obviously not part of the mediation of 30 October 2003.  So it is fundamentally wrong to suspend them on the basis of failure to comply with the determination reached at the said mediation process.  There was obviously no need for them to write letters of apology and commitment on “by 31^st October 2003” as they were not on strike by then.

            The reasons given for suspension is not applicable to them.  In their case they were supposed to be given the correct reasons and grounds for the suspension, i.e. that they engaged in an illegal strike.  In their case the object of section 3 (1) was frustrated and materially impaired as they were, strictly speaking, not served with letters of suspension which embody reasons and grounds of suspension.

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Validity of the agreement

            The applicants in their founding affidavit state that the agreement reached on 7 November 2003 was signed whilst they were under duress.  It is trite that an agreement which is tainted by duress is liable to be set aside at the instance of the coerced party to such agreement.  The principle of law is that a contract which has been entered into as a result of absolute force, vis absoluta, is void ab initio – Voet 4.2.1 and R H Christie,The Law of Contract in South Africa (2^nd Ed) page 367.  This means that where a person is physically forced to sign a contract or to affix his signature to a contract he has in reality not given his consent and hence the contract he signed is a legal nullity.  In casu, the applicants are not relying absolute force, vis absoluta, since they have not alleged that they were physically forced to affix their signatures to the contract.  What they have alleged is that they were subjected to duress, metus, inducing such fear as was sufficient to negative their “apparent” consent to the contract.  The law is that a contract which is induced by duress of this kind is not void ab initio but it is voidable at the option of the coerced party – Voet4.2.2 R H Christie op cit at page 367; Smith v Smith 1948 (4) SA 61 (N) at 67-8 and AJ Kerr, The Principles of the Law of Contract (4^th Ed) at pages 238-9.  The onus is on the applicants to prove that the improper pressure is of the kind and severity recognised by law in this context – Savvides v Savvides & Ors 1986 (2) SA 325 (T) at 330A-B.  The pressure may be that of the other party to the contract or of a third party or both the other party and a third person – Voet 4.2.4, Van Leevwen CF 1.4.41.9, Broodryk v Smuts NO 1942 TPD 47 at 53 and Smith v Smith, supra.  In this case the applicants are alleging the latter, i.e. pressure from the trade union and the

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employees themselves.  By and large there is dispute of facts on what preceded the signing of the disputed agreement.  For a contract to be set aside on the ground of duress it must be shown that the following existed-

1. actual violence or reasonable fear;
2. the fear must be caused by the threat of some harm to the party.
3. The threat or intimidation must be unlawful or unjustified or contra bonos mores.
4. The threat must be of an immediate or imminent harm or evil; and
5. The pressure or means used must have resulted in prejudice or damage of some kind – Broadry v Smuts NO supra, at page 52 and R H Christie op cit, at page 368-377.

Further, the pressure must be directed towards the formation of the contract.  There is no doubt that most facts in connection with alleged improper pressure are highly contentious and cannot be resolved on the papers.  The applicants filed a detailed affidavit of their erstwhile legal practitioner who was present immediately prior the signing of the disputed agreement.  The applicants averred that he was subjected “to appalling insults and threatened with violence and he had to leave the premises”.  He confirmed this in his own affidavit.  It seems to me that dispute of fact centre around what led to his departure just before the singing of the disputed agreement.  That he did not leave voluntarily is beyond dispute.  It is common cause that the 6 November 2003 meeting was held at the instance of the Zimbabwe Federation of Trade Unions.  The case of the respondents on the circumstances of the departure of the applicants’ legal practitioner is captured in paragraph 10 of the opposing affidavit filed by the 2^nd respondent.  He states-

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“… I would however, like to point out that the lawyer was present on the meeting of 6 November 2003 and the professed ignorance of the labour laws and the whole issue claiming that he had only been briefed that morning.  It was then that we asked him to leave if he had no meaningful contribution to make to the meeting.” (emphasis added)

            It is clear from this averment that while it is not clear what “asked him to leave” entailed, it is common cause that the respondents were responsible for the removal of the applicants’ legal practitioner from the meeting at which the disputed agreement was concluded.  Legal representation, which the applicants had sought, was denied by actions of the respondents.  In the circumstances, would this fact itself amount to improper pressure?  Or would it simply be one of the factors to be taken into account in deciding whether the agreement is tainted by duress?  In my view, the latter obtains.  This factor plus the general circumstances under which meeting was held will be the determining factor on the existence of the metus.  The meeting was attended by a large group inclusive of the respondents.  The overall atmosphere, irrespective of what was said, was not conducive for free and fair contractual negotiations.  The parties to the agreement were not on equal footing in circumstances where the respondents remove the other contracting party’s chosen legal advisor.  In my view, the applicants have proven on a balance of probability, as required by law, that their consent to the disputed agreement was obtained by improper pressure, metus, of the kind and severity as to render the contract voidable – H R Hahlo and E Kahn, South Africa: The Union of South Africa: The development of its Laws and Constitution at 472 and Union Government (Minister of Finance) v Gowar 1915 AD 426 at 452.  The surrounding circumstances of this case justify that I set aside the disputed agreement for lack of volition on the part of the applicants.  This agreement was not voluntary – it was not freely entered into by the applicants.

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Interdict

            The target of the provisional order is 1^st respondent, the Zimbabwe Federation of Trade Unions together with its officers and employees, 2^nd, 3^rd and 4^th respondents.  In the draft order the interdict effectively means that the 1^st respondent, as a trade union and 2^nd, 3^rd and 4^th respondents as its unionists are barred from representing their members at their place of employment.  It is trite that labour law balances the various rights and interests existing in or arising from the relations between the tripartite parties.  Since all rights are relative, the rights and interests of one or more of the tripartite parties are restrained or restricted by the rights, interests and well being of each of the other of the tripartite parties.  Labour law seeks to adjust those conflicting interests – T Poolman, Principles of Unfair Labour Practice at page 71.  If I confirm the order in its present form I will have placed limitations on all 34 respondents’ freedom of association and the right to organisation as provided for in the International Labour Organisation Conventions and Recommendations and the subjective public law rights of labour relations acquired by the rules of international labour law and the national labour legislation – see The Freedom of Association and Protection of the Right to Organise Convention of 1948 and the Labour Relations Act, supra.   Our labour law and labour relations have their roots in the principles of international labour law as manifested in international custom and practice.

            MrMazibisa, rightly concedes that there is merit in the confirmation of the part of the provisional order that requires the respondents “to keep their peace and not disturb operations.”  The applicants in essence seek an interdict barring 1^st, 2^nd, 3^rd and 4^th respondents from interfering with the proper running of their medical practice.  In this regard the applicants’ papers show a clear right on their part, a well founded

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fear or apprehension that their practice will be harmed by these respondents and that there is no other adequate remedy open to them - Setlogelo v Setlogelo 1914 AD 221; Knox D’Arcy Ltd & Ors v Jamieson & Ors 1995 (2) SA 579; Sanachem (Pty) Ltd v Farmers Agri-Care (Pty) Ltd & Ors 1995 (2) SA 781 (A); Bull v Minister of State Security & Ors 1987 (1) SA 422 (ZH) and Gosschalk v Rossauw 1966 (2) SA 476 (C).  I will confirm the provisional order in such a way that there is a balance of the competing interests at play in this matter.

            Before I conclude the matter I propose to deal with a complaint raised by Mr Mazibisa on behalf of his clients.  He said that the respondents are not happy with “some of the words used to describe the respondents and their actions”.  The words complained of were not detailed.  The words complained of are seemingly the following- “lawlessness, thuggery and terror”, “unionism by terror”, “not through terrorist tactics and intimidation”, “from thugs in our midst.”  Counsel who was instructed by Mr Tshuma, for the applicants authored these words.  He did not appear before me.  This is very strong language.  Without detailed submissions I can only discourage the use of such strong language especially in the field of labour relations when emotions are usually high.  Although we are not dealing here with obscene language, I think what MARAIS JA said in Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Ors 2003 (5) SA 354 (SCA) is helpful.  The learned judge stated unequivocally that freedom of speech was a valuable constitutional right but that it did not extend to the use of obscene language in courts of law.  If public respect for courts of law, which is vital to the functioning of a free and constitutional state, was to exist the use of coarse and lavatorial language in court proceedings would contribute nothing towards earning and preserving that respect.  The learned

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judge of appeal further stated that we live in an egalitarian age and modes of speech in court proceedings which are less than refined are to be expected, but there are limits to what should be tolerated in a court of law.  All I can say, (in the absence of submissions in this regard) is that officers of the court need to tone down their language.

            I, therefore, order that:-

1. The provisional order granted in case number HC 2518/2003 be and is hereby confirmed with costs in the following terms – “The 1^st respondent and its officers and employees together with 2^nd , 3^rd and 4^th respondents be and are hereby interdicted and prohibited from in any way, at Galen House, 93 Josiah Tongogara Street, Bulawayo, carrying on any activity of a nature likely to disturb peace or interfere with the proper running of the applicants’ medical practice.
2. The purported agreement between applicants and respondents annexure “E” to the applicants’ founding affidavit be and is hereby declared to be null and void and of no legal effect with respondents bearing the costs.
3. The counter application in case number 2734/2003 is granted in favour of all the applicants who are nursing sisters as follows:

The suspension of applicants by respondents on the 1^st November 2003 be and is hereby declared, with costs, to be null and void and of no legal force and effect.  These applicants are individually declared to be re-instated as respondents’ employees with full pay and benefits until their contracts of employment are lawfully terminated.  The application by clerical and general staff be and is hereby dismissed with costs.

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Webb, Low & Barry,applicants’ legal practitioners

Cheda & Partners, respondents’ legal practitioners