Cotton Marketing Workers' Union of Zimbabwe v Cotton Company of Zimbabwe Limited

The plaintiff is a registered trade union in the cotton industry with members employed by the defendant. The defendant is a limited liability company in the cotton industry employing some of the plaintiff's members. Union dues are collected through a check-off scheme by the employer and transferred to the union in terms of s 54(1) of the Labour Act [Chapter 28:01]. The defendant admitted liability to pay US$61,457.99 in union dues but the plaintiff claimed US$432,408.83 as the total outstanding amount allegedly collected but not remitted from 2022 to May 2024. Before litigation commenced, the defendant on 23 July 2024 sent a letter marked "WITHOUT PREJUDICE" acknowledging the debt and proposing a payment plan with instalments starting at US$20,000 in September 2024. The defendant subsequently paid US$5,000 on 4 September 2024 as partial performance of the payment plan. The defendant later disputed liability and argued the "without prejudice" communications were privileged and inadmissible.

• Whether a payment plan issued on a 'without prejudice' basis but partially performed is enforceable at law and admissible as evidence
• Whether communications marked 'without prejudice' lose their privileged status when they contain unequivocal acceptance of liability and settlement terms
• Whether the court should exercise its discretion to remove privilege attaching to 'without prejudice' communications in circumstances where a settlement has been reached

1. The payment plan at pp 49-50 of the record, which was partially performed, shall be enforceable against the defendant and therefore admissible as evidence before the court. 2. The Registrar is directed to set the matter down for the plaintiff to open its case. 3. Costs shall be in the cause.

A document marked "without prejudice" does not automatically enjoy privilege - the court must objectively assess whether the communication warrants protection. Where a letter contains an unequivocal and unconditional acceptance of liability and proposes a payment plan to settle a debt, there is nothing privileged in such a payment plan, and the privilege should be removed. When negotiations have resulted in a settlement or agreement on liability, the communications leading to that settlement should be available to the court as the basis for non-disclosure has fallen away. An agreement or settlement cannot be "without prejudice" or privileged - only negotiations can be. A party cannot approbate and reprobate by unequivocally accepting liability and then subsequently denying it. Partial performance of a payment plan further demonstrates that settlement has been reached and negates any claim to privilege.

The court observed that parties often inscribe "without prejudice" on correspondence "out of fear of being held to account" without understanding its proper application. DEMBURE J noted there was "no logic whatsoever for a party who accepts liability to refund money...and is making a payment plan, to then send the payment plan on a 'without prejudice' basis. What prejudice is there to talk about?" The court noted that the second legal issue concerning the defendant's actual liability to pay could not be determined at the preliminary stage as it required evidence to be led. The court also observed that arguments about the Turquand Rule and alleged non-compliance with s 54 of the Labour Act were premature and not relevant to the narrow preliminary issue of admissibility of the "without prejudice" communication. The court declined to enter final judgment at this stage despite the plaintiff's request, emphasizing that the ruling on admissibility was not dispositive of the entire matter.

This judgment clarifies the scope and limits of "without prejudice" privilege in Zimbabwean law. It establishes that merely marking a document "without prejudice" does not automatically confer privilege - the content and context must objectively warrant protection. Critically, it confirms that payment plans and unequivocal acceptances of liability cannot be privileged even if marked as such, because there is no genuine negotiation or dispute remaining to protect. The case demonstrates the court's willingness to exercise discretion to remove privilege where parties have reached settlement and one party seeks to resile from clear commitments. It reinforces the principle against approbation and reprobation. The judgment also clarifies that when a settlement has been reached, the negotiations leading to it should be available to the court. This is important for South African law as it shares similar common law principles on without prejudice communications, though this is a Zimbabwean judgment which may be of persuasive value in South African courts dealing with similar evidentiary issues.