No. SC 32/09
Appeal No. 170/07
TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
SUPREME COURT OF
ZIYAMBI JA & MALABA JA
HARARE, MARCH 25, 2008
& JULY 15, 2009
T Biti, for the
A K Maguchu, for
SANDURA JA: This is an appeal against a judgment of the
Labour Court which set aside an arbitral award made in favour
The background facts may be tabulated conveniently as follows
1. The appellant (Vimbai) was employed by the respondent (the
Hotel) as a supervisor.
2. On 18 January 2005 the Hotel wrote to Vimbai informing him
that his contract of employment had been terminated. The letter
reads as follows:
Please be advised that effective 1 January 2005 your
employment contract with Sheraton Harare Hotel and Towers has been
terminated. You are no longer required to register for duty
physically, on standby or in any other form.
The decision has been taken by management as a last resort after
futile attempts to resolve the matter amicably and through further
attempts to settle the matter through arbitration. Management and
yourself are of the opinion that the employment relationship
deteriorated to non-productive levels.
As a way forward, Sheraton Harare Hotel is willing to resolve the
matter through arbitration provided both parties agree on terms
reference to be presented before the arbitrator.
3. Vimbai took the letter to his trade union, the Zimbabwe Catering
and Hotel Workers Union (the Union) which, on 20 January
2005, wrote to the Hotel indicating that Vimbais dismissal would
4. On 21 January 2005 the Hotel wrote to the Union as follows:
Vimbai Mbisvas contract of employment has been
terminated due to deterioration in the working relationship between
Sheraton Harare Hotel and himself. As stated in our previous
correspondence, we are willing and able to engage in dialogue that
will result in the resolution of this matter. We are in addition
willing to accept a determination from a body with appropriate
authority to settle the matter.
The hotel welcomes intervention from the Zimbabwe Catering and Hotel
Workers Union provided such intervention assists in a settlement
of the above matter.
5. Thereafter, the Union proposed that Vimbai be given a severance
package equivalent to his salary for a period of two-and-a-half
years, but the Hotel rejected that proposal.
6. Subsequently, the Union and the Hotel entered into negotiations on
the best way forward, but the negotiations did not yield
7. Then on 25 January 2005 Vimbai went to the Hotel where he
signed a Memorandum of Agreement (the MOA) which reads
I Vimbai Mbisva
hereby acknowledge that I have entered
into an agreement with Sheraton Harare Hotel, under the following
terms of which I have agreed:
1. to accept payment of the sum of Z$17 001 880.46
(Z$ seventeen million one thousand eight hundred and eighty
dollars and forty-six cents) as full and final settlement of all
claims that I have against Sheraton Hotel Harare, its directors,
subsidiaries, associated companies and operations. I acknowledge
that I have received Z$17 001 880.46 (Z$ seventeen
million one thousand eight hundred and eighty dollars and forty-six
cents) in full.
2. to withdraw all claims, complaints and statements made (by) me
relating to Sheraton Hotel Harare, whether with my legal advisors,
any legal advisors, any government body, any court, tribunal or to
(sic) any other organisation.
I acknowledge that I have no further claims against Sheraton Hotel
Harare, its directors, subsidiaries, associated companies and
operations, whether for damages or otherwise. I have entered into
this agreement of my own free will and I confirm that my signature
appears on this agreement. I undertake to file a copy of this
agreement with my legal advisors and any other organisation whose
assistance I had sought.
8. On 2 February 2005 Vimbais legal practitioners referred
the issue of Vimbais unlawful dismissal to a labour officer
conciliation. The labour officer failed to settle the dispute and,
accordingly, on 15 April 2005 issued a Certificate
9. On 9 May 2005 the labour officer referred the dispute to
compulsory arbitration, and identified the issues for arbitration
(1) Whether the agreement of 25 January 2005 between V Mbisva
and Sheraton Hotel is valid or not.
(2) If not, what damages are payable to Mr Mbisva.
10. On 3 June 2005 Vimbai and the Hotels Human Resources
Director (Makoni) appeared before the arbitrator with their
legal practitioners. Both Vimbai and Makoni gave oral evidence and
were cross-examined. After addresses by the legal practitioners,
the arbitrator reserved his decision.
11. On 18 July 2005 the arbitrator gave his decision, which was
that the MOA signed by Vimbai on 25 January 2005 was
on the parties because it was not an agreement in the legal sense.
12. Aggrieved by that decision, the Hotel appealed to the Labour
Court in terms of s 98(10) of the Labour Act [Cap 28:01]
13. On 5 April 2007 the Labour Court allowed the appeal and set
aside the arbitral award granted on 18 July 2005.
14. Dissatisfied with that result, Vimbai appealed to this Court,
leave to appeal having been granted in terms of s 92F(2)
The grounds of appeal set out in the notice of appeal are as
1. The court a quo grossly erred as a question of law
overturning the decision of the arbitrator on ordinary common law
(principles) and not on the
(principles) of public policies
(enunciated) and captured in Article (34) of the UNCITRAL Model
Law as incorporated in our
Arbitration Act [Cap 11:15].
Put simply, (in) overturning the decision of the arbitrator, the
court was obliged to consider whether the award in itself
2. Even assuming that the matter had to be determined purely and
squarely on the basis of s 98(10) of the Labour Act [Cap 28:01],
the court a quo grossly erred (in) overturning (a) finding of
fact by the arbitrator. Put simply, there (were) no questions of
law in the appeal
pending before the Labour Court, and for that
reason, the Labour Court had no good reason to interfere with the
finding of fact
that (had) been made by the arbitrator.
3. Put simply, the Labour Court grossly misunderstood its functions,
the court dealing specifically with questions of law under
of the Labour Act [Cap 28:01].
4. Even assuming, without conceding, that (there were) questions of
law in the appeal before the Labour Court, the Labour Court
grossly erred in holding that (the) document executed on the 25th
of January 2005 was binding, and ignored that the same had been
executed under protest. In any event to show that the appellant
not agreeing with the same he had left a settlement cheque with the
Although four grounds of appeal are set out in the notice of
appeal, there are in fact only three grounds because the second
third grounds raise the same issue, i.e. whether there were questions
of law in the appeal pending before the Labour Court.
I shall deal with grounds 2 and 3 first, and then with grounds 1
THE APPEAL TO THE LABOUR COURT INVOLVE A QUESTION OF LAW?
This question is important because in terms of s 98(10) of the
Act the right to appeal against the arbitrators decision
restricted to questions of law only. The section reads as follows:
An appeal on a question of law shall lie to the Labour Court from
any decision of an arbitrator appointed in terms of this
What is a question of law was considered by this Court in Muzuva
v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). At 220 D-F
GUBBAY CJ said:
The twin concepts, questions of law and questions of fact, were
considered in depth by E.M. GROSSKOPF JA in Media
Workers Association of South Africa and Ors v Press
Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A).
Approving the discussion of the topic in Salmond on Jurisprudence
12 ed at 65-75, the learned JUDGE OF APPEAL pointed out at
795 D-G that the term question of law is used in three
distinct though related senses. First, it means a question which
the law itself has authoritatively answered to the exclusion
right of the court to answer the question as it thinks fit in
accordance with what it considered to be the truth and justice
matter. Second, it means a question as to what the law is.
Thus, an appeal on a question of law means an appeal
in which the
question for argument and determination is what the true rule of law
is on a certain matter. And third, any question
which is within
the province of the judge instead of the jury is called a question of
law. This division of judicial function
arises in this country in a
criminal trial presided over by a judge and assessors.
Applying these principles to the Hotels appeal to the Labour
Court, there is no doubt in my mind that the appeal involved
question of law. I say so because in its notice of appeal filed in
the Labour Court the Hotel based the appeal on the following
the arbitrator erred grossly at law and on the facts in
holding that the Memorandum of Agreement is not (an) agreement in
terms of the law.
The issue before the Labour Court was, therefore, whether the MOA was
an agreement in terms of the law. That, in my view, is
of law within the second sense of the term question of law set
There is, therefore, no substance in the second and third grounds
ARTICLE 34(2)(b)(ii) OF THE MODEL LAW APPLY TO APPEALS BROUGHT TO THE
LABOUR COURT IN TERMS OF S 98(10) OF THE ACT?
This issue arises because in the first ground of appeal it is
submitted that the Labour Court should not have set aside the
arbitral award unless it had been satisfied that the award was in
conflict with the public policy of Zimbabwe, in terms of
of the Model Law set out in the First
Schedule to the Arbitration Act [Cap 7:15].
Article 34 of the Model Law, in relevant part, reads as
(1) Recourse to a court against an arbitral award may be made
only by an application for setting aside in accordance with
paragraphs (2) and (3) of this article.
(2) An arbitral award may be set aside by the High Court only if
(b) the High Court finds that
(i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of Zimbabwe; or
(ii) the award is in conflict with the public policy of Zimbabwe.
The issue set out above was considered by this Court in Net*One
Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers
Union of Zimbabwe (2) Fifty-Six Net*One
Employees SC 89/05. In that case this Court ruled that
Article 34 of the Model Law did not apply to an appeal against
award, brought to the Labour Court in terms of s 98(10)
of the Act.
In my view, it is quite clear, from a careful reading of
Article 34, that the Article only deals with and limits the
of the High Court to set aside an arbitral award, and does not
in any way deal with or limit the power of the Labour Court to set
aside an arbitral award challenged in terms of s 98(10) of the
I cannot, therefore, see any reason for departing from this Courts
decision in the Net*One case supra.
Consequently, the Labour Court did not have to be satisfied that
the arbitral award was in conflict with the public policy of
before setting it aside.
There is, therefore, no merit in the first ground of appeal.
WAS THE MEMORANDUM OF AGREEMENT BINDING ON VIMBAI?
In the fourth ground of appeal it is submitted that the Labour
Court erred in holding that the MOA was binding on Vimbai, and
ignored the fact that it was signed under duress.
However, this ground of appeal was not dealt with in the heads of
argument filed on behalf of Vimbai. Nevertheless, I will
The issue raised in this ground of appeal is whether the MOA was
signed under duress.
As already stated, both Makoni and Vimbai gave evidence before the
arbitrator and were cross-examined. After consideration
evidence, the arbitrator said the following:
In one way or the other, after the dismissal of the claimant, the
parties contacted each other, resulting in the claimant and
(from Sheraton) meeting to finalise the matter. At this
penultimate meeting, the employer presented a document
that would put
the matter to rest. The claimant knew that if he continued to
challenge his dismissal, he would get nothing from
the employer. He
therefore pretended to be accepting his terminal benefits, but
requested that they be split into two parts,
with the first part
incorporating largely the January salary and (the) other part the
rest of the other terminal benefits.
The claimant then wrote U.P. after his signature to signify
that he was accepting the benefits Under Pressure.
This was not explained to the employer. The employer acknowledges
that he (it?) was not aware that the claimant had signed the
The claimant hoodwinked the employer into believing that he was
consenting to the termination of employment and to the acceptance
terminal benefits. This was done with the sole aim of accessing the
The claimants conduct is
deplorable. He was understandably
desperate for cash but he used unorthodox methods to get what
He lied that he was accepting the benefits of his own free will, and
that his acceptance was in full and final settlement of (the)
that he had against the respondent. No wonder the respondents
agent kept referring to him as a trickster.
Had it not been for my findings regarding the MOA I would have ruled
that the claimant be bound by (his) signature, never mind
It is quite clear from what the arbitrator said that he was satisfied
that Vimbai had not signed the MOA under duress.
The Labour Court was of the same view and said the following:
It may very well be true that he was under financial pressure
which forced him to accept a deal that he did not like. But
fact remains that he need not have accepted the deal. It is not
like his will was overborne by (the) appellants to the
he had no choice in the matter. He had a choice. He could have
rejected the whole deal and pursued other remedies.
The fact that
he now feels that he should have got more than the deal offered is no
ground for breaking the deal.
The finding by the Labour Court that Vimbai did not sign the MOA
under duress is a finding of fact, which is not appealable unless
can be said to be irrational in the sense set out in Hama v
National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670 C-E,
where this Court said:
The general rule of law, as regards irrationality, is that an
appellate court will not interfere with a decision of a trial
based purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court,
complained of is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who
had applied his
mind to the question to be decided could have arrived at such a
conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7;
Secretary of State for Education and Science v Metropolitan
Borough of Tameside  3 All ER 665 (CA) at 671 E-H;
CCSU v Minister for the Civil Service  3 All ER
935 (HL) at 951 A-B; PF-ZAPU v Minister of Justice (2)
1985 (1) ZLR 305 (S) at 326 E-G.
In the present case, I am not prepared to say that having regard to
the evidence placed before the arbitrator and the Labour
finding complained of is irrational in the sense set out above.
Consequently, the finding that Vimbai did not sign
the MOA under
duress is not appealable, and the fourth ground of appeal, therefore,
In my view, the Labour Court correctly determined the matter. The
MOA was a declaration by Vimbai that the dispute between
him and the
Hotel had been settled on the terms and conditions set out in the
MOA. That conclusion is logically consistent with
what happened in
this case before 25 January 2005.
Vimbai was dismissed by the Hotel. He reported the matter to the
Union and a labour dispute ensued. Negotiations aimed at
the dispute commenced between the Union and the Hotel. The Union
proposed that Vimbai be given a severance package equivalent
salary for a period of two-and-a-half years, but the Hotel rejected
the proposal. As he badly needed some money Vimbai
went to the
Hotel on 25 January 2005 and signed the MOA, declaring that the
labour dispute had been settled on the terms and
conditions set out
therein. In my view, that declaration is binding on him.
In the circumstances, the appeal is dismissed with costs.
ZIYAMBI JA: I agree
MALABA JA: I agree
Honey & Blanckenberg, appellant's legal practitioners
Dube, Manikai & Hwacha, respondent's legal practitioners