Giles M. Masango v Sunway City (Private) Limited

The applicant was employed by the respondent as chief finance officer. On 4 November 2019, the respondent served him with a notice of retirement advising that he would be retired with effect from 30 April 2020 upon attaining the age of 60. The applicant challenged this notice, arguing he was entitled to retire at 65, being the retirement age fixed by the rules of the Industrial Development Corporation of Zimbabwe Pension Fund (the Fund) to which he belonged. Despite his protests, he was placed on forced leave on 31 March 2020 pending retirement on 30 April 2020. The parties subsequently reached an agreement whereby the applicant proposed to retire on 31 December 2020 instead of April 2020. The respondent accepted this proposal and paid the applicant his salary up to December 2020 plus retirement benefits. The applicant accepted the payment in a letter dated 27 October 2020 as full and final settlement. Despite this, the applicant approached the Labour Court seeking review of the respondent's decision to retire him before age 65. The Labour Court dismissed his application and refused leave to appeal, leading to the present chamber application to the Supreme Court for leave to appeal.

• Whether the applicant's retirement age was governed by the respondent's Staff Rules and Procedures (providing for retirement at age 60) or the rules of the Industrial Development Corporation of Zimbabwe Pension Fund (providing for retirement at age 65)
• Whether the applicant waived his right to challenge the early retirement by accepting the retirement package as full and final settlement
• Whether the retirement age fixed by a pension fund's rules automatically fixes the age at which an employee must retire from employment
• Whether the applicant raised questions of law sufficient to warrant leave to appeal from the Labour Court in terms of section 92F of the Labour Act
• Whether the applicant had reasonable prospects of success on appeal

The application for leave to appeal was dismissed with costs.

The binding legal principles established are: (1) The regulations of a pension fund do not fix the age at which an employee will retire from employment unless, expressly or impliedly, the employer and employee agree that this be so. Where an employer intends to apply the retirement age fixed by a pension fund for purposes of retiring employees from employment, it must import this age, with the consent of employees, into the conditions of service. (2) An employee may retire from employment before or after his pensionable age unless his contract of employment stipulates that his age of retirement be as fixed by the rules of the pension fund. (3) A waiver of contractual rights can be effected either expressly or by conduct implied from the circumstances. Where an employee accepts a retirement package as full and final settlement of a dispute, including proposing the terms himself and accepting payment accordingly, he waives and abandons his right to subsequently challenge the retirement. (4) For leave to appeal from the Labour Court to be granted, the applicant must demonstrate both a question of law (as required by section 92F of the Labour Act) and reasonable prospects of success on appeal.

The court observed that waiver of rights must not be lightly presumed, but that conduct inconsistent with the enforcement of a right can clearly evince an intention to surrender that right. The court noted that while the third ground of appeal raised purely factual issues and the fifth was repetitive, these would be struck out as they did not raise questions of law. The court commented that the applicant's argument that the illegality of the original notice could not be cured by his acceptance of the retirement package was not sustainable given that he had not established that his retirement age was indeed governed by the pension fund rules rather than the Staff Rules. The court also observed in passing that once an election has been accepted and acted upon by an employer through payment of retirement benefits, an employee cannot resile from that contractual agreement, particularly where the employer has performed in good faith.

This case is significant in Zimbabwean labour law (which is persuasive in South African jurisprudence given the similar legal systems) for clarifying several important principles: (1) It confirms that the retirement age fixed by a pension fund's rules does not automatically determine the age at which an employee must retire from employment unless the parties have expressly or impliedly agreed to incorporate those rules into the employment contract. (2) It demonstrates the application of waiver principles in the employment context, particularly that an employee can waive the right to challenge retirement terms by accepting a retirement package as full and final settlement. (3) It clarifies the distinction between retirement from a pension fund (pensionable age) and retirement from employment, holding these are separate events that can occur at different times. (4) It provides guidance on when leave to appeal will be granted from the Labour Court, requiring both a question of law and reasonable prospects of success. The case reinforces the principle that parties are bound by settlements they negotiate and accept, even where they may later have regrets about the terms agreed.