CASE REVIEW ON CHARLES MAMBWE V MULUNGUSHI INVESTMENT LIMITED & ANOTHER APPEAL 27 of 2014

In the case in focus the Supreme Court for Zambia considered a whether a mediation settlement order can be appealed or reviewed by a court.
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By Kachana Katazo

Alternative Dispute Resolution - Mediation  


INTRODUCTION

In the case of Charles Mambwe and Others vs. Mulungushi Investments Limited and Another (Appeal 27 of 2014), the Supreme Court for Zambia considered a critical issue in employment law: whether a mediation settlement order can be appealed or reviewed by a court. This landmark judgment, delivered on September 9, 2016, has had significant implications for the enforcement of mediation settlement orders and the role of courts in resolving disputes. In this case review, I will examine the facts, legal arguments, and decision in Charles Mambwe and Others vs. Mulungushi Investments Limited and Another, and explore its impact on the development of mediation in Zambia.

FACTS

Charles Mambwe, a former employee of Mulungushi Village Resort, was suing his former employer for breach of contract and wrongful termination. Mambwe had been employed as a senior manager at the resort, but was dismissed without notice or payment in lieu of notice. He alleged that his dismissal was unfair and violated the terms of his employment contract, which included a clause requiring the resort to provide him with a certain period of notice before termination. Before filing the lawsuit, the parties had attempted mediation to resolve their dispute, but the mediation was unsuccessful. During the mediation, Mambwe had offered to settle the matter for a certain amount, which the resort rejected. The resort argued that Mambwe's dismissal was justified due to his poor performance and misconduct, and that they had followed the proper procedures according to the employment contract. Mambwe claimed damages for breach of contract and sought an order for reinstatement or payment in lieu of notice.

HOLDING

 The court noted that while Mambwe had made a settlement offer during mediation, the resort had rejected it, and therefore the offer could not be considered a binding contract. The court further held that the mediation proceedings were confidential and could not be used as evidence in the lawsuit, except to show that the parties had attempted to resolve their dispute through mediation. The court's ruling on the mediation issue emphasized the importance of confidentiality in mediation proceedings and the need for parties to carefully consider the terms of any settlement agreement before signing and also held that the mediation settlement order was final and binding, and could not be appealed or reviewed. The court also found that the Deputy Registrar erred in proceeding with the assessment, as the mediation settlement order had already settled the matter.

IMPLICATION AND APPLICATION

1.      The case provides a definition for court annexed mediation, the court stated that court annexed mediation is a process by which a trial court refers the parties to a neutral third party called a mediator, to help them resolve their dispute. And also stated that the mediation in the high court and the industrial relations court is court annexed mediation meaning it is part of the judicial system this was affirmed by the case of Bank of Zambia v Richard nyambe (2005).

2.      The case also provides the function of the mediator, the court stated that the mediator plays a facilitative role by merely providing a forum for the parties to explore options for settling their disputes.

3.      It’s worth noting the case affirms that mediation is party driven and as such the parties structure the agreement that they finally come up with.

4.      The case also affirms that court annexed mediation is binding, this is affirmed also by Order 31 of the high court rules which compel a party to attend before a mediator and any settlement reached is binding upon the parties and final, no appeal lies against such settlement and to this, rule 14 states that no appeal shall lie against a registered mediated settlement.

5.      The case also affirms that a mediation settlement is not subject to interpretation or review nor can the proceedings from which it arises be re-opened.

6.      The case affirms the rationale for court annexed mediation that it helps decongest the courts there by reducing the work load on judges in the high court.

7.      The case affirms that the court can only assume jurisdiction where mediation fails, pursuant to order 31 rule 11 of the high court.

CONCLUSION

In conclusion, the Supreme Court's decision in Charles Mambwe and Others vs. Mulungushi Investments Limited and Another highlights the finality of mediation settlement orders and the importance of understanding the consequences of participating in mediation. The decision also underscores the role of the labor Commissioner in resolving employment disputes and the need for parties to carefully consider the terms of a mediation settlement before agreeing to it.


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About the Authors:


Kachana Katazo is a third year student at the University of Zambia and serving as the Projects Manager of Legal Aid Initiative.



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