Lovenore Rikweza v Zesa Enterprises (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/129/25
ZIMBABWE HELD AT HARARE 17
MARCH 2025
CASE NO. LC/H/1116/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17 MARCH 2025

AND 21 MARCH 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/129/25 CASE NO. LC/H/1116/24

LOVENORE RIKWEZA	APPLICANT AND

ZESA ENTERPRISES (PVT) LTD	RESPONDENT

Before Honourable Mr., Justice L.M. Murasi

For Applicant	Mr. O. Chitowamombe

For Respondent	Mr. C. J. Mahara

MURASI J.,

This is an application for quantification of damages in lieu of reinstatement. Applicant was employed by the Respondent. Allegations of misconduct were levelled against leading to his conviction and subsequent dismissal from employment. He approached this Court on appeal but the appeal was dismissed. Applicant appealed to the Supreme Court and the decision of this Court was set aside with the Supreme Court issuing the following Order:

The appeal be and is hereby allowed with costs.

The judgment of the court a quo be and is hereby set aside and substituted with the following;

The appeal be and is hereby allowed with costs.

The decision of the Appeals Committee be and is hereby set aside and substituted with the following;

The appellant’s appeal against the decision of the disciplinary committee be and is hereby allowed.

The appellant’s conviction and dismissal from employment be and is hereby set aside.

The appellant be and is hereby reinstated into the second respondent’s employment without loss of salary and benefits.

Alternatively if reinstatement is no longer possible the second respondent shall pay the appellant damages agreed between the parties in lieu of reinstatement, failing which either party can approach the Labour Court for quantification of damages.”

Correspondence attached to the record shows that the parties attempted to settle the issue of damages in lieu of reinstatement but this failed. The further point to note is that Respondent paid to Applicant certain sums of money as backpay after the Supreme Court order was rendered. Applicant takes issue with the quantum of the backpay made by the Respondent.

At the commencement of the proceedings, Mr. Chitowamombe informed the Court that Applicant was abandoning the claim for the tools box and the other clothing paraphernalia as stated in the Founding Affidavit.

Applicant’s Evidence

The Applicant gave evidence which can be summarized as follows. He is aged 43 years and is in good health. He attained ‘O’ Level qualification but does not have any professional qualification. He informed the Court that he was trained by the Respondent but did not get to the stage of being awarded a certificate. He further stated that after his appeal had been allowed by the Supreme Court, the Respondent informed that it was not reinstating him to his former position. He added that Respondent proceeded to calculate his backpay and informed him that it was willing to pay damages in lieu of reinstatement for a period of 12 months. Applicant stated that the money calculated as back-pay was not correct and he did not accept the period of 12 months proposed by the Respondent.

Applicant further stated that by way of mitigation, he had applied for alternative employment but had not been able to find any permanent position. He referred to copies of correspondence from potential employers who had rejected his endeavors to get employment. He stated that he had survived by part-time jobs as a conductor and in one of the electrical firms. He said that his average income per month was USD 50-00. Applicant also stated that he was of the view that Respondent should pay damages in lieu of reinstatement for a period of 60 months.

Applicant was cross-examined to some length by Respondent’s Counsel. The main contention put to the Applicant was he could not claim his damages in United States Dollars as the Respondent was paying its employees in local currency and the response from the Applicant was that the salary packages were later converted into local currency at the [prevailing bank rate. It was also suggested to the Applicant that he had not immediately sought to mitigate his losses after dismissal as there was no evidence before the Court to that he had done so.

I should state that Applicant was not a good witness. He appeared to have a story in his heard which he wanted to portray to the Court which was not supposed by any evidence. For example,

he argued that he was being paid in United States Dollars when he was unable to produce any proof of that statement. The amounts of money realized was clearly an afterthought as he later stated that he was able to realize between USD200 and USD300 per month from the electrical firm where he often worked on a part time basis.

In submissions, Mr. Chitowamombe stated that what was paid by the Respondent as backpay was not sufficient as shown in the papers filed of record. It was also stated that Respondent’s computations did not take into account the monthly increments. He argued that the salaries were pegged on the United State Dollar and were subject to conversion into the local currency at the prevailing bank rate.

In response, Mr. Mahara stated that an employee who has been dismissed has a duty to mitigate his/her losses immediately after such dismissal. He stated the period of 60 months claimed by the Applicant was too high. He also submitted that Respondent had previously offered the period of 12 months after June 2023 and this period was being extended to 18 months after June 2023. He argued that this would amount to a reasonable period having regard to the fact that Respondent had already made payments in respect of backpay up to June 2023 which was part of the period to be taken into account.

After the new offer, Mr. Chitovamombe requested to consult with his client and he informed the Court that Applicant had insisted on the 60 months.

ANALYSIS

It is a truism that in such cases, the Applicant is enjoined to adduce in support of his claim for damages. The evidence must be relevant to enable the Court to come to a decision as to how long it would reasonably take a person in the position of the dismissed employee to find alternative employment. (See Redstar Wholesalers v Edmore Mabika SC 52/05). In this case, Applicant stated that he had no professional qualification. He was not a qualified electrician. However, the evidence he produced before the Court shows that he was seeking placements in electrical firms when he did not have any qualification. He ended up being employed as a conductor for most periods even though he alleges it was on a part time basis. As stated in Ambali Case, Applicant was not taking the first job that came to him. In any event he did not place such evidence before the Court. AS already stated elsewhere in this judgment, he did not impress in that field.

I now come to the quantum of the damages claimed by the Applicant. Precedent is clear on this point. In Aaron’s Whale Rock Trust v Murray and Roberts Ltd and Another 1992 (1) SA 652, it was stated as follows:

“Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the Court to quantify his damages and to make an appropriate award in his favour. The Court must not be faced with an exercise in guesswork; what is

required of a plaintiff is that he should put before the Court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.”

A reading of Applicant’s Founding Affidavit shows that Applicant throws around figures which do not have a source. Applicant has not attached any pay slip to show that what he is claiming is amply supported by evidence. The contract of employment which is attached to the record is unhelpful. It was entered into in 2009 and the salary depicted in that document does not assist the Court in any manner. Further, the Draft Order contains the following statement;

“That the Respondent pays the applicant an equivalent of 60 months’ net salary as damages in lieu of reinstatement on the basis of the current salary scale being USD 413.00 and ZIG 6643-62.”

The above averment is not supported by any documentary evidence. That also means that the computations which are relied upon by the Applicant and included in the letter from his legal practitioners do not have a basis as these are not supported by any documentary evidence.

On the contrary, Respondent gives a higher figure as Applicant’s basic salary. This is shown to be US 504-00 as basic salary. The table submitted by the Respondent shows the inclusion of what Applicant was receiving as salary and benefits per month. The table also shows the conversion from RTGS to ZIG (ZWG). It is also shown that Respondent was as at July 2024 paying 60% of the salary in local currency and the balance in United States Dollars. The table also shows Applicant’s entitlements to Housing Allowance, Transport Allowance, Canteen Allowance, Bonus and the Electricity Benefit. It is my view that the table given by the Respondents is much more clearer as to what Applicant was entitled to receive. The claim that Applicant was not paid enough backpay up to June 2023 has not been proved and ought to be dismissed.

I now come to the issue of how long it would reasonably take a person in Applicant’s place to find alternative employment. Applicant put a figure of 60 months which translates to 5 years. I have already made the observation that Applicant, despite lacking any professional qualifications, did not take the first job that vailed itself. Respondent has paid Applicant for the period up to June 2023. It is also trite that back-pay cannot legally be awarded in respect of the period after the date of the order of reinstatement is granted. In Chiriseri & Anor v Plan International 2002 (2) ZLR 261, SANDURA JA had this to say at 265 D-G:

“As this court stated in Leopard Rock Hotel Co (Pvt) Ltd v Van Beek, supra, at 254H- 255A:

‘….’back-pay and ;damages’ are indeed different concepts, but only in the sense that ‘damages’ is a wider concept. It will normally include back-pay, but may include, for example, compensation for loss of promotion prospects, interest and other elements as appropriate.’”

This shows that of the 60 months claimed by the Applicant, 24 months have been taken up by backpay. Respondent has offered to pay for a further 18 months as damages in lieu of reinstatement. This brings the figure to 42 months. In essence, this would mean that Applicant was reasonably expected to find alternative employment in a period exceeding 3 years. It is accepted that the economic situation in the country leaves a lot to be desired as far as employment opportunities are concerned. However, with the offer made by the Respondent, I am of the firm view that a period of 42 months is a reasonable period in the circumstances.

I now turn to the quantum. As already stated, the figures submitted by the Respondent find favour with the Court. The last figures on that table are as at July 2025 where the conversion has already been made to ZWG. The table also shows that Respondent has adopted the policy of paying its salaries with 60% being the ZWG component and 40% being the United States Dollar component. It is my view that since Applicant is deemed reinstated from the date of the Supreme Court judgment, such benefits will accrue to him.

In the result, damages in lieu of reinstatement are therefore awarded under the following heads:

Basic Salary of USD 504-00 for 18 months.

Housing Allowance for 18 months

Transport Allowance for 18 months

Canteen Allowance for 18 months

Electricity Benefit for 18 months

Annual Bonus on a pro rata basis

Annual Leave for the period in question.

The above amounts are to be paid at the prevailing rate of exchange on the date of payment. Each party meets its own costs.

Shava Law Chambers-	Applicant’s legal practitioners

Muvingi & Mugadza-	Respondent’s legal practitioners