Sibongile H.A. Mujuruki v Karoi Town Council

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/385/25
ZIMBABWE HELD AT HARARE 30
SEPTEMBER 2025 AND
CASE NO. LC/H/253/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 30 SEPTEMBER 2025 AND

IN THE MATTER BERWEEN:

JUDGMENT NO. LC/H/385/25 CASE NO. LC/H/253/25

SIBONGILE H.A. MUJURUKI	APPLICANT AND

KAROI TOWN COUNCIL	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. T. Thondhlanga

For Respondent	Mr. P. Mahembe

MURASI J.,

This is an application for quantification of damages. This Court, in an order dated 28 September 2023 ordered Applicant’s reinstatement to her former position without loss of salary and benefits. In a letter dated 9 October 2023, the Respondent wrote to the Applicant. In that letter, Respondent stated that it had noted the Court Order but had made a decision not to reinstate the Applicant and was thus prepared to pay damages in lieu of reinstatement. Hence the present application.

The parties have largely agreed on most of the issues such as the period to be used in the calculation of damages and other ancillary issues which I will enumerate in the course of this judgment.

Issues in Dispute

Mr. Thondhlanga stated that the parties were not agreed on the issue as to whether Applicant should be paid those benefits which she used to enjoy when she was still in employment. He stated that the figures were not in contention but it was the principle which was not agreed upon. It also turned out that the parties were not agreed on the figures to be used. Applicant’s legal practitioners were of the view that calculations were to be based on the gross salary whilst Respondent’s position was that the net salary was legally applicable.

Further, the parties were not agreed on the currency to be used in the payment of the damages. Applicant’s legal practitioners were of the view that the calculations were made in the United States Dollar currency and should be paid as such. Mr. Mahembe was of a different view in that there was a standing instruction from Central Government to pay a maximum of 40% in

United States Dollars and the balance in local currency. Mr. Mahembe also stated that there should be a provision in the Order permitting the Respondent to pay the damages, though calculated in United States Dollars, in local currency at the prevailing interbank rate.

NET SALARY OF GROSS SALARY?

Professor L. Madhuku in “Labour Law in Zimbabwe” states thus at page 257:

“The courts have firmly held that the ‘amount’ of wages or salary used for assessing damages is the net, and not gross, amount for the period in question. Similarly, damages are mitigated by the net and not gross amount earned over the relevant period. This is in line with compensation for actual loss. The rates used for wages, salary or benefits are those applicable at the time of dismissal and not those at the time of assessment by the court.”

In Zimbabwe United Passenger Co. Ltd v Daison 2002 (2) ZLR 628 (S), SANDURA JA had this to say:

“In the circumstances, Daison is entitled to net back pay and benefits from the date of his dismissal being 23 April 1997 to 9 April 2001, the date when the Tribunal ordered that he be reinstated or paid damages in lieu of reinstatement.”

The above positions show that what is used by the courts in calculating damages due to an employee in lieu of reinstatement is the net salary, not the gross.

WHETHER APPLICANT IS ENTITLED TO BENEFITS SHE USED TO GET DURING EMPLOYMENT

The parties are not agreed on whether the Applicant is entitled to the benefits she used to get during her employment for the period of 24 months. Professor Madhuku quotes Basson (2009) thus:

“A reinstatement order restores the contractual position between the employer and the employee as if it was never broken, meaning the employee is also entitled to be paid for the retrospective period of reinstatement and entitled to benefits that may have accrued during the retrospective period of reinstatement. Consequently rights, such as seniority rights, will be unaffected.”

My understanding is that the employer will treat the employee as if he/she was not dismissed for the period from the date of reinstatement retrospective to the date of dismissal. In this regard, this would mean Applicant would be entitled to those benefits in issue from the date of reinstatement going back to the date of dismissal which is August 2022.

PAYMENT IN UNITED STATES DOLLARS OR LOCAL CURRENCY?

The argument put forward by Mr. Thondhlanga was that the parties agreed to negotiate the damages in United States Dollars and that payment should be made in that currency. Mr. Mahembe, on the other hand, stated that Respondent was a public entity and subject to instructions from Central Government and that there was a Circular from Government as to the manner salaries must be paid. He also stated that he understood the legal position to be that an amount designated in United States Dollars may be paid in local currency at the prevailing

interbank rate. The Circular referred to by Mr. Mahembe is part of the record. It is titled CCU Circular 4/2023 dated 19 July 2023 and provides as follows in relevant portion:

“The part payment of salaries of public entities shall be UP TO A MAXIMUM OF 40% of combined (both) gross salaries and allowances. In other words, the aggregate portion payable to the employees in USD shall be up to and not exceed 40% of an employee’s gross salary and allowances.”

IN WHAT CURRENCY SHOULD THE OBLIGATION BE DISCHARGED?

It was Mr. Thondhlanga’s submission that the discussions were held with a view to discharging the obligations in United States Dollars. It is also correct to note that the payslip which was relied upon in computing the figures in question were in United States Dollars. Does this mean that the obligation has to be settled in United States Dollars? Legally, there is nothing wrong in the Respondent discharging the onus in United States Dollars. However, Mr. Mahembe pointed to the existence of the Circular directing public entities to pay up to 40% in United States Dollars and the balance in local currency.

It is my view that parties made their calculations using the United States Dollar. As already alluded to, there is no legal impediment in discharging the obligation in United States Dollars. However cognisance must be had to the existence of the Circular from Central Government which has been alluded to elsewhere in this judgment. It cannot be ignored.

AGREED POSITIONS

Mr Thondlanga stated that the following were agreed positions between the parties:

Respondent will buy a laptop, cell phone and tablet.

Respondent will pay for the change of ownership of Motor vehicle registration number ADY 6492 which was awarded to the Applicant.

Medical and Professional Allowances will be paid to the Applicant on production of the requisite invoices.

Respondent will pay the value of a new motor vehicle that is indicated in the schedule.

Parties were agreed on the figure of 24 months for damages.

In light of the Court’s finding that damages are calculated using the net income, the result is that the figures in the schedule will be changed to suit the finding. Parties were agreed that the payslip that was used in the calculation of damages is the one on page 130 of the record. The payslip shows that Applicant’s net monthly income was USD 1461-17. This is the figure that the Court used in the calculation.

The Court made a further finding that Applicant was entitled to the benefits she was receiving from the date of dismissal to the date when the order of reinstatement was made. This translates to 12 months. The figures in this respect will need to adjusted accordingly.

Accordingly, the Court makes the following Order.

Non-monetary award.

Applicant is awarded a laptop, cell phone and tablet which shall be purchased by the Respondent.

Respondent shall pay for the change of ownership of motor vehicle registration number ADY 6492 awarded to the Applicant.

Respondent shall pay to the Applicant Medical and Professional Allowances on production of the requisite invoices.

Monetary Award

Backpay	USD$21917-55

Water Allowance	USD$332-80

Electricity Allowance	USD$3723-15

Fuels Allowance	USD$9613-80

Airtime	USD$360-00

Newspaper	USD$450-00

Bonus	USD$3843-30

Cash in Lieu of Leave	USD$5240-86

New Vehicle	USD$ 64710-00

Damages	USD$35068-08

Water	USD124-80

Electricity	USD$2978-52

Newspaper	USD$730-00

Free Mileage	USD$3528-00

Weekly Fuel	USD$6220-80

Airtime	USD120-00.

TOTAL	USD$158 961-66.

The above amounts shall be payable in any one or a combination of the following: In United States Dollars OR

At the rate of 40% United States Dollars and the balance in local currency.