Barend van Wyk v Tarcon (Private) Limited

The appellant claimed US$62,707.12 from the respondent for unpaid salaries, allowances and truck hire charges for the period 2002 to 2008. Two reconciliation statements were prepared and signed by the respondent's financial advisor on 7 November 2008, acknowledging the debt subject to the chairman's approval of the payment plan. After the reconciliation statements were prepared, the appellant received two payments in cash and fuel from the respondent for leave days and two months' salary. The respondent denied any agreed reconciliation and averred that the appellant was employed by Tarcon Limitada (a Mozambique-based entity) rather than by the respondent itself. The respondent also claimed that the truck hire contract was between the appellant's company Earthquip (Pvt) Ltd and Tarcon Limitada. The High Court granted absolution from the instance, finding that the claim was a labour matter outside its jurisdiction, had prescribed, violated Exchange Control Regulations, and that the appellant lacked locus standi regarding the truck hire charges.

• Whether the claim was based on a stated account or constituted a labour dispute within the exclusive jurisdiction of the Labour Court
• Whether the claim had prescribed under s 94(1) of the Labour Act
• Whether the claim was unenforceable due to lack of exchange control approval under the Exchange Control Regulations 1996
• Where the onus of proof lay regarding exchange control approval
• Whether the appellant had locus standi to sue for truck hire charges

The appeal was allowed with costs. The judgment of the High Court was set aside and substituted with an order dismissing the application for absolution from the instance with costs. The matter was remitted to the High Court for continuation of the trial.

1. A claim based on a stated account or acknowledged debt constitutes a contractual claim within the ordinary civil jurisdiction of the High Court and does not fall within the exclusive jurisdiction of the Labour Court merely because the underlying obligation arises from employment. 2. It is competent to sue a debtor on an admission of liability as set out in an acknowledgement of debt without founding the action on the original transaction giving rise to that acknowledgement. 3. The two-year prescriptive period under s 94(1) of the Labour Act applies only to claims or disputes subject to the exclusive governance of that Act and does not oust or override the periods of extinctive prescription under the Prescription Act applicable to contractual debts generally. 4. Where a party resists payment on the ground that exchange control permission was not granted, that party bears the onus of proving the absence of such permission, both because it must obtain such permission as payer and because he who asserts a fact must prove it. 5. Absolution from the instance should not be granted where the plaintiff has established a prima facie cause of action and is entitled to succeed absent rebuttal evidence from the defendant.

The court observed that the respondent's defence regarding lack of exchange control approval was not raised in the pleadings. The court also noted that issues regarding the appellant's locus standi and cause of action in relation to the truck hire contract were interrelated and should be more clearly determined by the court a quo at the conclusion of the trial, rather than at the absolution stage. The court remarked that given the official purpose of the respondent's letter confirming staff liabilities for audit purposes, it seemed "highly improbable" that the respondent was operating without the requisite exchange control approval during the relevant period.

This case is significant in Zimbabwean law for clarifying the distinction between labour disputes subject to the exclusive jurisdiction of the Labour Court and contractual claims based on stated accounts or acknowledgements of debt that fall within the ordinary civil jurisdiction of the High Court. It establishes that a claim founded on an agreed acknowledgement of liability constitutes a contractual claim rather than a labour dispute, even where the underlying obligation arises from employment. The case also provides important guidance on the allocation of the onus of proof in relation to defences based on non-compliance with Exchange Control Regulations, holding that the party asserting lack of approval bears the burden of proving that fact. It reinforces the principle that defences of illegality should be properly pleaded and that courts should be cautious in granting absolution from the instance where there is evidence supporting the plaintiff's cause of action.