The State has won against judgement of the High Court which resulted in former Permanent Secretary in the Ministry of Agriculture Micus Chimbombi being awarded P1.7 million for termination of his contract.
Chimbombi took his former employer to court arguing that the termination of his contract of employment was through undue influence and therefore unlawful and and sought P1.7 million. The balance of the contract came to 28 months.
The State refuted the allegation of undue influence as well as the assertion that it was agreed that he would be paid his salary for the unexpired portion of the contract.
Handing down judgement on Friday, Court of Appeal’s Justice Stephen Gaongalelwe found that as regards undue influence, it appears the court overlooked some crucial pieces of Chimbombi’s testimony. He said page 185 of the record (High Court) reflects that the following transpired during his examination in chief.
According to the record in question, when asked by the State lawyer what he meant when he said his position was that he would have been paid for the balance of his contract and Chimbombi replied that he would “get out of my contract I be paid the balance.”
Another question from the State lawyer was what would happen if he was not paid and Chimbombi’s reply that “if not paid I will not get out of the contract.”
Gaongalelwe said the above shows that Chimbombi opted for termination on account of believing he would be paid salaries for the balance of contract not on account of any due influence.
“At common law undue influence vitiates a contract and renders it void if it is proved that such induced the complaining party to enter into same,” said Gaongwalelwe.
In this case, the judge said, Chimbombi sought to enforce the agreement by invoking the concept which is not in accordance with the law. “For that matter, even in those situations where undue influence proved, the party invoking same would not succeed unless he proves that the agreement reached could not have been made if not for the influence,” said the judge.
He said Chimbombi’s evidence shows that he entered into the separation agreement motivated by his hope that he would be paid for the remaining portion of his contract.
He said Permanent Secretary to the President testified that as regards that subject, he informed Chimbombi that it is an issue in which he would have to consult before answering one way or the other.
At any rate, the judge said, on Chimbombi’s own version “relating to the supposed agreement, it contained a term which was terribly vague to the extent of making no sense. It his own evidence and in his letter dated 5th October 2015 there was a term in the supposed agreement that would be paid for the balance of his contract “…or any amount of separation that would be considered as reasonable.”
Gaongalelwe said, according to Chimbombi, even his Minister drew his attention to the fact that the phrase does not make sense. This phrase is so vague that it is impossible to fathom how officers of their caliber could have entered into such an agreement.
Upholding the State’s appeal application, Gaongalelwe said, “In the circumstances of this case, it is my considered view that the respondent (Chimbombi) has not proved that there was an agreement that he would be paid for the balance for the balance of his contract. Similarly, the issue undue influence does not assist him at all.”
