Judgment No. HB 77/2004

                                                                                    Case No. HC 3610/01

REUBEN MUMVUMI

and

PAUL MPOFU

Versus

UNITED REFINERIES

And

MINISTER OF PUBIC SERVICE, LABOUR &

SOCIAL WELFARE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 4 JULY 2003 AND 3 JUNE 2004

T Harafor the applicants

J Moyofor the respondents

Judgment

            NDOU J:        The applicants were employed by first respondent in managerial capacities until their retrenchment on 26 June 1998.  The applicants agreed to the retrenchment and they were paid in terms of the agreed sums and they were paid their retrenchment packages in 1998.  The terms of the retrenchment agreement are, inter alia –

            “Dear Mr Mumvumi (First applicant)

            Re: Retrenchment Agreement

Following the notice of retrenchment given to yourself, and the subsequent discussions on the matter, it has been agreed that you will be paid your terminal benefits, and the package detailed below …

            (Signed)

            A P Nzuwa

            General Manager – Group Human Resources

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            I, Reuben Mumvumi, confirm that I agree and accept the above terms

            (Signed)                                                          Date 26/6/98”

            A copy of the said agreement signed by the first applicant was produced.  The first respondent averred in the opposing affidavit that second applicant signed a similar agreement.  The second applicant has not controverted this averment.

            By accident or design the applicants, in their founding papers and the answering affidavit chose not to make reference to these retrenchment agreements.  They said a lot about the actions of the respondents not being in accordance to the law but have avoided these agreements that they signed and got paid their retrenchment packages.  In their papers they do not challenge the validity of these agreements.  They have not indicated any factors which unlawfully induced them into signing these agreements.  It has to be borne in mind that factors which may improperly influence or induce a party’s state of mind are many and varied.  Most of them have no effect in law.  Those which have relevance are misrepresentation, non-disclosure, metus (undue pressure), undue influence etc – The Principles of the Law of Contract (4^th Ed) A K Kerr at 183.  There are other bases on which the validity of these agreements may be attacked e.g. illegality or mistake.  The long and short of it is that the applicants have not sought to rescind these agreements.  In the absence of such an application I cannot consider such rescission.  The court may not grant the applicants a remedy which they have not even bothered to seek – Forestry Commission v Moyo 1997 (1) ZLR 254 (S) at 269C-E andMutare City Council v Madzime & Ors 1999 (2) ZLR 140 (SC) at 143.  The onus is, in any event, on the applicants to prove that their agreements do not bind them – Savvides v Savvides & Ors 1986 (2) SA 325 (T) at

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330.  The applicants have not even attempted to resile from these written agreements.  In the absence of disagreement between the employer and the employee referral to the Retrenchment Committee for final adjudication is unwarranted.

            The applicants seek a review of the second respondent’s decision in the following terms:

            “It is ordered that:

1. The respondent exercise carried out by the first respondent and approved by the Minister (second respondent) be and is hereby set aside.
2. The applicants be and are hereby reinstated back to work without loss of pay and benefits …”

The decision of the Minister herein was made in 1998 and the application for review filed on 29 November 2001 and, accordingly, way out of time.  It seems that the applicants should have simply appealed to the Labour Relations Tribunal against the decision of the Minister rather that filing an application for review.  In terms of the Labour Relations (Retrenchment) Regulation as published in Statutory Instrument 404 of 1990, as amended, a person who is aggrieved by the decision of the Minister can appeal to the Labour Relations Tribunal.  But what is important in this regard is that there is nothing mentioned in this application as to what the Minister did which was fundamentally irregular like failure to observe the rules of natural justice or that he was biased or had interest in the cause as the case may be.  The Minister is simply being accused of having committed an error of judgment, which gives rise to an appeal.

                                                                                                                        HB 77/04

            Further, it is trite in such matters a litigant should exhaust his domestic remedies, before approaching this court for relief unless there are good reasons for not

exhausting the domestic relief in question –Musandu vThe Chairperson of Cresta Lodge Disciplinary and Grievance Hearing Committee HH-115-94,Tutani vMinister of Labour, Manpower Planning & Social Services and Ors 1987 (2) ZLR 88 and Cargo Carriers (Pvt) Ltd vZambezi & Ors 1996 (1) ZLR 613.  In this case the applicants have not advanced good reasons for not approaching the Labour Tribunal by way of appeal.

            Further, this application does not comply with the rules in that the grounds for review have not been spelled out in the court application.

            In the face of such numerous procedural errors and unclear basis for the application, it must therefore fail.  There is simply no merit in this application.  Although the application itself was filed late I granted condonation so that it may be dealt with on its merits and bring finality.

            Accordingly, I dismiss the application with costs.

T Hara & Partners, applicant’s legal practitioners

Calderwood, Bryce Hendrie & Partners, first respondent’s legal practitioners