Sithembile Chipere (In her capacity as the surviving spouse & Executrix dative of the Estate late Tsaurayi Tungamirai Chipere) v Tel.One Zimbabwe (Pvt) Ltd and Master of the High Court

On 13 October 2005, the late Tsaurayi Tungamirai Chipere entered into a written contract of employment with Tel.One Zimbabwe (Pvt) Ltd as Head Network Planning and Development. The contract provided for salary and non-pay benefits including group life assurance, self-assurance, and group personal accident schemes. The late Chipere died on 12 May 2012, with a monthly gross salary of USD3,808.42. The plaintiff was appointed executrix dative of his estate on 16 August 2012. In November 2012, the plaintiff demanded payment of USD89,730 (two times annual salary as a lump sum) under the self-assurance plan based on Clause 5.3.11 of the contract document in her possession. The first defendant disputed this, stating that the correct clause provided for two times annual salary paid as monthly pensions (not a lump sum). The parties held different versions of the contract document, with Clause 5.3.11 containing materially different wording.

• Whether the agreement relied upon by the plaintiff was the correct agreement entered into between the plaintiff's late husband and the first defendant
• Whether Clause 5.3.11 of the agreement contained a justus error
• Whether the plaintiff was entitled to payment of two times annual salary as a lump sum plus monthly pensions versus two times annual salary in the form of monthly pensions only

The plaintiff's claim was dismissed with costs.

Where parties hold different versions of a contract document and there is insufficient evidence to determine which is authentic, the court may rely on contextual evidence including: (1) contracts of other employees in the same category showing uniform terms and conditions; and (2) parent policy documents from which specific contractual benefits are derived. A contractual provision that is inconsistent with both the terms applicable to similarly situated employees and the governing parent policy document will not be enforced where the plaintiff has failed to prove her case on a balance of probabilities. The burden of proof remains on the plaintiff to establish entitlement to the relief claimed.

The court observed that it would have been of great assistance had effort been made to have the documents examined by experts to establish if either of the documents could have been a result of manipulation. The court also noted that since the employee was deceased, it could not be ascertained whether he knew or did not know about the error on the contract document he had or even that it differed with the one retained by the first defendant. The court commented that the plaintiff would have needed expertise from those knowledgeable in pension payment calculations to properly establish quantum, given her inability to explain why she used certain salary figures in her calculation.

This case is significant in Zimbabwean employment and contract law as it addresses: (1) the evidentiary burden where parties hold different versions of a written contract; (2) the use of contextual evidence (contracts of similarly situated employees and parent policy documents) to determine the true agreement between parties; (3) the application of justus error principles in employment contracts; and (4) the interpretation of pension and insurance benefit clauses in employment agreements. The case demonstrates that courts will look beyond the face of a disputed document to consider whether its terms are consistent with the broader scheme of employment conditions and parent policy documents governing employee benefits.