Wonder Simuka v Montana Carswell Meats (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/71/2023
HARARE, 16 NOVEMBER 2022 &
10 FEBRUARY 2023
CASE NO LC/H/605/22
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/71/2023

HARARE,  16 NOVEMBER 2022 &		   CASE NO LC/H/605/22

10 FEBRUARY  2023

In the matter between:-

WONDER SIMUKA					APPLICANT

AND

MONTANA CARSWELL MEATS		RESPONDENT

(PRIVATE) LIMITED

Before the Honourable Kachambwa  J

For the Applicant		K. Gama (Legal Practitioner)

For the Respondent		D. Matawu  (Legal Practitioner)

KACHAMBWA, J:

The Application

This is an application for quantification of damages in lieu of reinstatement.  It follows after a successful appeal to the Supreme Court which court ordered the reinstatement of the applicant failing which reinstatement, payment of damages.

Agreement

The parties agreed on the following issues –

Backpay to be paid from the date of cessation of payment, 1st March 2016 to date of the Supreme Court decision 31st May 2022.

Backpay to consist of

2.2.1.	salaries

2.2.2	bonuses

2.2.3	leave pay

2.3	12 months’ salary damages in lieu of reinstatement

2.4	Damages to be assessed in United States dollars with the option to pay in

Zimbabwe dollars at the interbank rate on the date of payment.

Outstanding Issues

The parties disagreed on two issues.  One is the applicable salary scale.  The respondent was of the view that the salary scale should be the one on the date of the Supreme Court Order which is the 24th May 2022.

The other issue is that of the currency to be applied in the period March 2016 to January 2019 in view of Statutory Instrument 33 of 2019.  The respondent was of the view that the currency should be Zimbabwe dollars and at the rate of 1:1 in terms of S.I.  33/2019. The amount would be calculated in United States dollars but payable in Zimbabwe dollars at the rate of 1:1. The salary scale would be that applicable on the date of the Supreme Court order which rate is $380.00 per month.

On the other hand the applicant’s position is that the interpretation of Statutory Instrument 33 of 2019 has been settled in the case of Zambezi Gas Zimbabwe (Private) Limited v N.R. Barber (private) Limited and Anor SC  3/20 wherein the Chief Justice said that –

“In interpreting section 4(1)(d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of Statutory Instrument 33/19.  The value of the assets and liabilities should have been expressed in United States dollars immediately before 22 February 2019 for the provision of S.I.  33/19 to apply to them.

Section  4(1)(d) of Statutory Instrument  33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollars immediately before the effective date, still to be assessed by application of an agreed formula. S 4(1)(d) of  S.I.  33/19 would not apply to such a transaction even if the payment would thereafter be in United States dollars.  It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.”

The Applicant’s argument was that the liability in the present matter was still to be decided let alone the value of the asset.

On the question of the applicable  rate the applicant’s position is that the rate should be as at the time of dismissal, a rate of USD 1 035.86.  This rate was to apply for the whole claim.

The Law and its Application

The Law as to the applicable date has already been determined in a number of cases that include-

Oliver Chiriseri and Fredrick Chinyenze  v Plan International  SC  56/2022

Olivine Industries (Private) limited  v  Caution Nharara  SC  88/2005.

First Mutual Life Limited   v Jackson Muzivi   SC  9/2007

These  cases show that the rate to be applied is that which was applying at the time of cessation of payment of the salary, whether it was  on suspension or dismissal. Cheda J  in the First Mutual case supra at page 4 of the cyclostyled judgement says that-

“Further, there is no logical basis for awarding an employee a salary at  current rates as opposed to the rates applicable at the time of suspension”

The same point is made in the Olivine Industries case supra

Therefore on the applicable rate it is that applicable at the time of dismissal which is USD 1035-86.

On the interpretation of Statutory Instrument 33/2019 the case of Zambezi Gas supra remains the leading authority.  It is clear from that case that the value of the assets and liabilities must be known before the effective date.  If they are still to be assessed or determined they are not affected.  In the present case liability was not determined yet by the effective date let alone assessed.  The value was far from determination although one can say that they were in United States dollars whatever the case may be.  Therefore the value would not be affected by S.I.  33/2019.

In the result the court upholds the applicant’s argument and quantification as awarded by the agreement between the parties.  The parties agreed to 12 months’ salary on damages in lieu of reinstatement.   This is the area that has to be awarded in the applicant’s claim.  The claim would be reduced accordingly. The award is  therefore for the following amounts-

Salary  75 months x $1035 -			=	$ 77 689-50

Bonus 6.5 years  x $517,93		        	= 	$   3 366.55

Cash in lieu of leave 6.5 years x $1 055-86	=	$   6 733.09

Damages in lieu   12 x $1035-86		=	$ 12 430.32

Total award					=	$100 219.46

The Order

It is ordered that the respondent pays the applicant the amount of USD 100 219-45 in United States dollars or in the local currency at the Interbank rate on the day of payment

Gama and Partners, Appellant’s Legal Practitioners

Messrs Coglan, Welsh and Guest, Respondent’s Legal Practitioners