Anatos Mpofu Versus Commissioner OF Police AND Police Services Commission

HH 08-2011
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ANATOS MPOFU
versus
COMMISSIONER OF POLICE
and
POLICE SERVICES COMMISSION


HIGH COURT OF ZIMBABWE
KARWI J
HARARE, 29 September 2010


Opposed Application


P. Kawonde, for applicant (partly)
Mr Pashapa, for respondent


       KARWI J: The applicant in this matter was charged with and convicted of assault in
July 1999. He was fined $400 or in default of payment ordered to serve two months in prison.
He was further sentenced to imprisonment for one month, all of which was suspended for five
years on certain conditions. He successfully appealed against both conviction and sentence.
       Following the appellant’s conviction and before his appeal was heard, the first
respondent summarily dismissed the applicant from the service of the Zimbabwe Republic
Police in terms of s 48(a) of the Police Act. Following his success in the appeal against both
conviction and sentence, the applicant requested to be reinstated in his job, but his request was
turned down. He then appealed to the second respondent against the decision to dismiss him.
The second respondent dismissed his appeal on the basis that his appeal was out of time.
Applicant was dissatisfied with the decision of the second respondent and sought to have it set
aside on review by this court on 17 October 2003. This court dismissed the application for
review. He then appealed to the Supreme Court. The Supreme Court set aside the dismissal as
unlawful and remitted the matter to this court for purposes of determining whether following
the dismissal of applicant he should be reinstated or paid damages in lieu of reinstatement.
       In referring the matter to this court, the Supreme Court had this to say;

       “Having concluded that the dismissal of Mpofu was unlawful, I hold the view that on
       the facts of this case, in particular the fact that this is essentially a labour dispute and
       the time that has elapsed since the dismissal of Mpofu, and the nature of the
       employment involved in this case, the parties should have an opportunity to address the
       issue of reinstatement or payment of damages in lieu of reinstatement. The issue of
       whether or not Mpofu should reinstated or paid damages in lieu of reinstatement has
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       never been addressed, either in court or in the court a quo. In my view, the parties
       should be given an opportunity to debate that issue before a determination on it is
       made.”

       The matter was then set down by this court and parties made submissions on whether
or not Mpofu should be reinstated or paid compensation in lieu of reinstatement and, if so, the
quantum of the damages.
       With regard to the issue of whether or not the applicant should be reinstated or paid
compensation in lieu of reinstatement, the applicant’s initial view as presented by his then
legal practitioner was that the preferred option was one of reinstatement. The reason given at
the time was mainly that it was difficult to assess or calculate the damages because the bulk of
the damages from 1999 to 2009 would have to be computed in Zimbabwe dollars, a currency
that was no longer applicable in our country. Awarding the applicant such damages in
Zimbabwe currency would effectively amount to no relief to him now. However the
applicant’s position changed soon after Mr Kawonde, his then legal representative had
renounced agency. Applicant’s current position is that he accepts that the best way forward
was the payment of damages in lieu of reinstatement. The first respondent also prefers the
payment of damages as the best way forward. I must add that I totally agree with respondent’s
view in this matter as it is the only choice anyway. Reinstatement is inappropriate, in my
considered view because there has been a total breakdown of the working relationship between
the parties. It is clear that there is no longer any mutual trust, confidence and integrity. Any
absence of those attributes in the Police force or between or amongst its members would make
the working relation unworkable. First respondent has also made it clear that it no longer
would want to continue employing the applicant. In Commercial Careers College (1980) (Pvt)
Ltd v Jarvis 1989(1) ZLR 344 (S) at 349 it was held that:

       “It is easy to conceive a situation in which, albeit no blame whatsoever attaches to the
       employee, the inescapable inference is that the personal relationship between him and
       the employer has broken down to the extent that trust in one another has been lost. For
       a court to order reinstatement against a backdrop of animosity and ill- will, solely
       because an employee unreasonably and out of wounded pride seeks it would be to
       permit the continuation of an intolerable personal relationship, one which will make it
       impossible for the employee to perform his duties either to his own satisfaction or that
       of his employer”

       INNES CJ stated the same thing in Johnson Schrewbury v Birmingham Rly Co (1853)
22 LJ ch 291 when he had this to say;
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       “….the inadvisability of compelling one person to employ another whom he doesn’t
       trust in a position which imports a close relationship and the absence of mutuality for
       no court could compel by its order a servant to perform his work faithfully and
       diligently.”

       MCNALLY J in Art Corporation Ltd v Moyana 1989(1) ZLR 304 @ 313 also stressed
the same point when he said:

       “The obvious remedy for unjustified unfair involuntary termination is re- employment,
       if the employee so wishes and otherwise compensation. The first remedy is not
       available at common law, the essentiality reciprocal nature of contractual obligation
       means that it is impossible to force unwilling party to remain bound to a contract
       against his will. “

       It seems to me therefore that the applicant should be paid damages in lieu of
reinstatement.
       I shall now proceed to determine the issue of the payment of damages in lieu of
reinstatement. The quantification of such damages is not an easy task, particularly where the
bulk part of the period within which Applicant was unlawfully out of employment is during
the Zimbabwe dollar era.
       The principles governing the payment of such damages are well settled in our law. An
employee is entitled to be awarded the amount of wages or salary he would have earned save
for premature termination of his contract by the employer. He may also be compensated for
the loss of any benefit to which he was contractually entitled and of which he was deprived in
consequence of the breach. See Charles Ambali v Bata Shoe Company Limited SC 56/ 99,
Kuda Madyara v Globe 7 Phoenix Industries (Pvt) Ltd SC63/02, Zimbabwe United Passenger
Company v Richard Christopher Daison 87/02 and Gauntlet Security Services v Leornard
1997(1) 583 (s). Our law is also settled in that the employee must mitigate his loss. He cannot
just sit and do nothing. If he fails to take up other employment when it would have been
reasonable to do so, a deduction will be made in respect of the remuneration he would have
earned from the substituted employment. Further according to our law, the measure of
damages accorded such employee is the actual loss suffered by the employee represented by
the sum due to him for the unexpired period of the contract less any sum earned or could have
earned during such latter period in similar circumstances.
       In an effort to quantify what is due to the applicant, the first respondent approached the
Reserve Bank of Zimbabwe with request to quantify what the applicant would be entitled to
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during the period 1999 to 2009, using the various exchange rates which were applicable during
the different stages along the 10 year period. The Reserve Bank kindly obliged and came up
with what I belief is an unrealist cumulative figure of US $ 259 014.72 inclusive of salary,
bonuses, allowances, leave days and medical aid. A close analysis of the schedules submitted
would show that during most of the time the applicant would have been paid an average salary
of around US $600 per month excluding all other allowances. A good example in point is the
salary applicable in the schedule for the entire 2002. It is my considered view that there is no
way a constable would have been paid over US $600 per month. It is also my considered view
that a realistic salary would have been something akin to the current position, which is a salary
of around US$150 to $200 per month. If my above view is correct as it is based on the current
and true salaries being paid to constables, then it means the applicant would have to be paid a
quarter of the figure which was used in most schedules submitted, including that submitted by
the applicant.
       It must also be mentioned that in an effort to assist the court with the formula to
quantify what is due to applicant, the first respondent approached the Pensions office, which
indicated that the best way to resolve this matter was to treat Applicant as a retiring member of
the Police force, who would be retiring at 50 years of age, and would be entitled to a lump sum
payment of US$6101.57 and a monthly pension of US$79.00 until he dies. The Pensions
Office had used a straight monthly salary of US$165.
       Applicant’s position is that he accepts a lump sum payment of a pension of
US$6101.57 and a monthly pension of US$79.00. He would also want in addition
US$31251.00, being salary, allowances, bonuses, loss of free accommodation, leave days and
loss of medical services, making a total of US$318 552.40. His claim for salary and benefits
above was based exactly on the over dramatized and unrealistic schedule drawn up by the
Reserve Bank, which I referred to earlier on. Applicant also requested that he be promoted to
rank of sergeant for the purposes of pension only. His request was based on his high hopes of
promotion at the time based on some examination he had passed. First respondent has
indicated that it was unwilling to treat the application as an urgent for purposes of calculation
of damages. My considered view is that issues of promotion are best left to be decided by the
employer and is not for the court to decide.
       It seems to me that, having decided as I have done above that the Reserve Bank of
Zimbabwe had assumed high rates of monthly salary of US $600, in calculating the applicant’s
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dues, and that the current rates used by the Pensions Office at US$165 would be appropriate, it
follows that the correct figures the applicant is entitled to are a quarter of the figure which was
submitted by the parties. When the above figures are applied, this would mean that the
applicant is entitled to US$78 113.00, which figure includes arrear salaries, allowances,
bonuses and leave days.
       Applicant did not adduce evidence to show that he sourced for alternative employment
soon after being unlawfully dismissed from employment. The law requires that he secures
alternative employment. He cannot just sit at home for more than 10 years expecting
wholesome payment from his employer. In the absence of evidence to show that Applicant
obtained alternative employment, it is my considered view that it was reasonable to expect
applicant to have serviced for alternative employment. In view of that finding, it is equitable
that a deduction be made from his entitlement in respect of the remuneration he would have
earned from the substituted employment. A reasonable deduction would have to be based on
the same rate of US$165 per month for a period of ten years. Such deduction would come up
to US$19800.00. When that deduction is considered, it means that the applicant is entitled to
US$58313.00. In addition, he is also entitled to a lump sum pension payment of US$6101.57
and a monthly pension of US 97.00 (or such other rates as are applicable by the Pension Office
to people of the rank of applicant.
   After taking all the above into consideration it is ordered as follows;

   1. First respondent be is hereby ordered to pay the applicant damages in lieu of
      reinstatement in the sum of US $58 131-00 being arrear salaries, bonuses,
      accommodation, leave days and medical services.

   2. First respondent to pay the applicant a lump sum pension of US$6101.57 and a
      monthly pension of US$97.00 until his death.

   3. Both respondents to pay cost of suit.




Kawonde & Company, plaintiff’s legal practitioners
Civil Division of the Attorney General’s Office respondents’ legal practitioners