Tafadzwa Sakarombe N.O v Africom Holdings (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/10/2021
HARARE, 19 NOVEMBER, 2020
CASE NO. LC/H/LRA/92/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/10/2021

HARARE, 19 NOVEMBER, 2020		     CASE NO. LC/H/LRA/92/19

XREF: LC/H/APP/568/18

AND 26 MARCH, 2021

In the matter between:

TAFADZWA SAKAROMBE N.O						1ST APPLICANT

And

AFRICOM HOLDINGS (PVT) LTD					1ST RESPONDENT

And

ISIAH VALENTINE MUKUDU						2ND RESPONDENT

Before The Honourable Kachambwa J;

For Applicant:			M.C. Mandava

For 1st Respondent:			Ms R. R. Mutindindi

For 2nd Respondent:			R. Zimudzi

KACHAMBWA J:

This is an application for confirmation of a ruling by a labour officer. The application is in terms of section 93(5a) and (5b) of the Labour Act, [Chapter 28:01]. (The Act). The application arises from a ruling where the 2nd respondent claimed that he had constructively been unlawfully dismissed. He sought to be paid damages thereof and terminal benefits. The claim of constructive dismissal was dismissed. However he was awarded terminal benefits of payment for leave days. Although he had claimed 43, 46 leave days he was granted 33, 95 as said to be admitted by the 1st respondent, the employer. The hearing was said to have been postponed to enable the employer to bring its own evidence of what it claimed to be the number of leave days owed. The award was for those days that the employer admitted.

The 1st respondent opposed the application on the simple ground that the 2nd respondent had failed to prove his claim of 43, 46 leave days. The notice of opposition and the heads of argument do not deny admitting the 33, 95 days. They only cling to the fact that the 2nd respondent should prove his  claim.

On the hearing the 1st respondent denied admitting the 33, 95 days. This denial is in contrast to the finding by the applicant. It is also in contrast to the notice of response and the heads of argument.

The 2nd respondent supported the application for confirmation of the ruling. He also claimed costs on a punitive scale if the 1st respondent opposed the application for confirmation. Although he cited case law on the cost he did not explain how they apply to the case at hand. No case for punitive costs is proved.

The award by the applicant is in United States dollar currency. At the hearing of the application the 1st respondent argued that the award must be in Rtgs in terms of the Finance Act N.0. 5 of 2019, Statutory Instrument 33 of 2019.

Proof of Claim

It is true that in civil claims he/she who alleges must prove. It is the general principle indeed. It is trite. However there is no need to prove that which is admitted.  Where a party claims an amount and the other party admits to a lesser amount, if the Claimant accepts the lesser amount there is no need to prove that lesser amount.

In the present case, the 1st respondent’s denial of the admission of a lesser amount goes against the grain of all the papers filed of record. It sounds like an after- thought. The applicant’s award is clearly based on that admission. If there was no admission the 1st respondent is expected to have raised it right in the forefront. There is no palpable reason for the applicant to allege the admission. The admission stands in good company with the evidence around it.

Therefore the award of 33,95 leave days is confirmed.

Currency

The issue of currency has now been resolved by the Supreme Court judgment of

Zambezi Gas Zimbabwe (Private) Limited

v

1.	NRZ Barbe (Private) Limited

2.	The Sheriff for Zimbabwe SC 3/20.

In this judgment the interpretation/application of SI 33/2019, Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars) was decided.   The Hon Chief Justice allowed payment for a judgment debt in United States dollars to be in RTGS Dollars on a one- to-one rate. He said that S.I 33of 2019 “expressly provides that assets and liabilities, including judgment debts denominated in Unites States dollars immediately before the effective date of 22 February 2019 shall on or after the aforementioned date be valued in RTGS dollars on a one-on-one rate” (page 1 of the cyclostyled judgment).

Therefore in the present case the amount of the leave days shall be paid in RTGS dollars on a one-on-one rate.

The application is therefore hereby confirmed. Payment shall be in RTGS dollars on a one-on-one rate It is accordingly ordered as follows;

1.	The application for confirmation of the draft ruling is confirmed as amended.

2.	The 1st respondent be and is hereby ordered to pay the 2nd respondent the 33,95 leave days amounting to $8 425-60 RTGS dollars.

3.	The 1st respondent to pay costs on the ordinary scale.

Matsikidze & Mucheche	-	1st respondent’s legal practitioners

Zimudzi &Associates	-	2nd respondent’s legal practitioners