SC 49-14 VAN WYK v TARCON

BAREND     VAN     WYK

v

TARCON     (PRIVATE)     LIMITED

 

SUPREME COURT OF ZIMBABWE

GWAUNZA JA, GOWORA JA & PATEL JA

HARARE, 5 NOVEMBER, 2013 & JULY 10, 2014

N. Madya, for the appellant

R. Chingwena, for the respondent

PATEL JA: This is an appeal from the decision of the High Court granting absolution from the instance in respect of the appellant’s claim. The claim was for US$62,707.12 as the balance owing to him from 2002 to 2008 for unpaid salaries and allowances and charges for the hire of his truck. The respondent denied that there had been any agreed reconciliation with the appellant for the sums claimed. The respondent also averred that the appellant was not employed by it but by another entity, Tarcon Limitada, which was based in Mozambique.

The High Court held that the claim for salaries and allowances was not based on any stated account but on a contract of employment governed by the Labour Act [Cap 28:01] and therefore fell outside the jurisdiction of the court in the first instance. Moreover, the claim had prescribed after the lapse of two years. It further held that because the payments were to be made to the appellant outside the country they were not recoverable as being in contravention of the Exchange Control Regulations 1996. Additionally, it was held that the proper claimant in respect of the truck hire charges should have been the appellant’s company, Earthquip (Pvt) Ltd, and that the proper defendant should have been the entity based in Mozambique. Consequently, the appellant had no locus standi to institute that claim. For all of these reasons, the court granted the respondent’s application for absolution from the instance.

LABOUR MATTER OR CLAIM ON STATED ACCOUNT

The respondent’s position is that the reconciliation statements relied upon by the appellant required the approval of its chairman for any liability to arise. As no such approval was ever obtained, there was no agreed statement of account and, therefore, the appellant’s claim for unpaid salaries was a purely labour matter subject to the exclusive jurisdiction of the Labour Court in terms of s 89(1) and (6) of the Labour Act. Moreover, s 94(1) of the Act stipulates that a labour dispute must be raised within a period of two years. In the instant case, that period had expired before the appellant issued summons and, therefore, his claim for salary and allowances has prescribed.

The two reconciliation statements in question contain the following identical handwritten appendage signed by the respondent’s financial advisor (Desmond Nhemachena) on 7 November 2008: “Pending approval by the chairman the above amount will be paid out at the agreed payment plan attached”. It is not entirely clear from the record whether or not the respondent’s chairman had in fact approved the payment plans. However, this did not form any part of the respondent’s defence in its plea. Rather, it simply contended that the appellant and Nhemachena were not employed by the respondent but by Tarcon Limitada.

2014

File: