Zimind Publishers (Pvt) LTD Alpha Media House (Private ) Limited V R.g Chiremba N.O. & K. Maukazuva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/146/24
HELD AT HARARE 31 JANUARY 2024 & 2
APRIL 2024
CASE NO.LC/H/ 1002/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 31 JANUARY 2024 & 2

APRIL 2024

In the matter between:

ZIMIND PUBLISHERS (PVT) LTD ALPHA MEDIA HOUSE (PRIVATE ) LIMITED And

JUDGMENT NO.LC/H/146/24 CASE NO.LC/H/ 1002/23

APPELLANT

R.G CHIREMBA	N.O.	1ST RESPONDENT

And

K. MAUKAZUVA	2ND RESPONDENT

BEFORE THE HONOURABLE	MAKAMURE ,JUDGE.

FOR THE APPLICANT	:T. KABAYA `(LEGAL PRACTITIONER) FOR THE 1ST RESPONDENT	:NO APPEARANCE

FOR THE 2ND RESPONDENT	:L. ZINYENGERE(LEGAL PRACTITIONER)

MAKAMURE J:

This is an appeal against the ruling of a labour officer, who is the 1st respondent, dated 29 June 2023 and duly registered with the High Court. The matter was heard before me on 31 January 2024.

BACKGROUND

The second respondent was employed in 2013 by the appellant as a Chief Technology Officer and elevated to a position of Chief Operating Officer with effect from August 2015. The initial contract of employment was denominated in the United States Dollar (USD) with the initial agreement having a salary of US$ 8500 while the second agreement came with a gross salary of US$ 10 625.

Second respondent was retrenched in 2022 and his terminal benefits were paid. He however later on claimed other benefits which were due to him and were not paid since 2019.

The second respondent claimed that he was underpaid since February 2019 and that the appellant was using rates which were below the official interbank rates. It was the second respondent’s contention that his salary remained in USD despite the coming into force of Statutory Instrument 33 of 2019 (‘S.I. 33/2019’), but was payable in local currency at official rates. The second respondent made his claim before the first respondent and was granted an award directing the appellant to pay him ( the second respondent )the sum of US$ 281 576. 12 and 1120 litres of fuel. This has necessitated the present appeal.

ANALYSIS

The appellant raised four grounds of appeal which in essence relate to the issue that the labour officer erred and grossly misdirected herself n the facts and the law in holding that the salary remained valued in United States Dollars and payable in the local currency at interbank rate. It is clear from the record that the contract of employment in question was denominated in the USD, and the appellant has not challenged the position. It is trite that what is not disputed is taken to be admitted. (See DD Transport(Pvt) Ltd v Old Mutual Ltd v Abbot 1988(2)ZLR 92(S); Tongai Machona v Old Mutual Limited SC 34/21 )

What the appellant argued, is that the contract was varied by the coming into effect of S.I. 33 of 2019, which in this case is not the correct position of the law. The question which then arises is: does a law vary contracts entered into freely and voluntarily by two consenting parties? The court is of the view that a valid contract is binding upon parties, it can only be varied by the consent of the parties. Parties to a contract must perform their duties unless excused from performance. In

casu, what the statutory instrument did was to change the mode of payment and not to vary the terms of contract.

The contract of employment in question requires parties to vary their contract in writing. The record does not show that there was any such variation in writing but appellant only relies on the fact that payments were to be paid in local currency.

In Knocker v Standard Bank of South Africa 1933 AD 128 at p 132, the court held that

“It is not uncommon for the appellant to try to run away from its contract in which it allowed itself to be bound by which contract it entered freely and voluntarily.”

The Court is of the view that the appellant now wants to run away from its obligation which it undertook when it signed the contract. Contracts of employment are of a sensitive nature, in that, in most cases it is the employee who is always at the receiving end of the law. The Court should be cautious in interfering with contracts which exist between parties.

Reference is made to the case of Magodora and Others v Care International SC 24/14, in which the Supreme Court held that:

“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.”

See also Wells v South African Alumenite Company 1927 AD 69 @p73 ;South African Mutual Aid Society v Cape Town Chamber of Commerce 1962(1) SA 598 (A) @615D; National Railways of Zimbabwe v Zimbabwe Artisans Union & Ors SC 46/ 2015.

A proper reading of the above cited authorities shows that courts frown upon interfering with contracts between parties, but stand to enforce the terms and conditions in the agreement or agreements. A court interpreting a contract must thus employ the literal meaning of the contract so as to ascertain the true intention of the parties as well as to frown upon rewriting contractual terms for the parties. In this regard the labour officer was correct in finding that the amount payable to the second respondent was to be valued in United States Dollars as per the terms of the employment contract.

The second issue is whether or not the amount in question was due effectively before the effective date of S.I. 33 of 2019 being the 22nd day of February 2019. The Court finds that the amount in question was claimed post the effective date, that is, when the official bank rate was now being determined on a weekly basis by the Central Bank. From the statement of claim by the second respondent, his claim was based on arrear salaries and benefits accumulating after 22 February 2019 and not before.

On this basis the salaries in question accumulated from February 2019 up to 2022 and were to be determined and paid at the prevailing interbank bank rate that was applicable every month when the salary was due and payable.

This is the position that was enunciated in the famous case of Zambezi Gas Company (Pvt)Ltd v N.R Barber & Anor SC3/20 at p.9 in interpreting s4 of S.I. 33/19 . Malaba CJ held that :

“The liabilities referred to in ss4(1) d of S.I. 33/19 can be in form of judgment debt and such liabilities amount to obligations which should be settled by the judgment debtor. In interpreting s 4(1) d, regards should be  had to assets and liabilities which  existed

immediately before the effective date of promulgation of S.I. 33/19.”( Emphasis added).

And s(4)(1)(d) of S.I. 33 of 2019 provides as follows:

‘(d) that, for accounting and other purposes, all assets and liabilities that were, immediately before the effective

date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2)

of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate

of one-to-one to the United States dollar; and….’( My underlining for emphasis)

The application of the 1:1 rate was only limited to a debt which existed before the effective date. In casu it is not disputed that the second respondent’s claim was based on amounts which accumulated from the period dating from February 2019 to the date of retrenchment in 2022.

CONCLUSION

The court finds that the grounds of appeal lack merit and accordingly the appeal must be dismissed. In the result it is ordered as follows:

The appeal be and is hereby dismissed.

The decision of the labour officer is upheld

The appellant is ordered to pay the second respondent outstanding salaries and benefits being the sum of USD 281,576.12( two hundred and eighty -one thousand five hundred and seventy -six United States of America Dollars and twelve cents ) and 1120 (one

thousand one hundred and twenty ) litres of fuel at the prevailing interbank bank rate in local currency.

The appellant  pays costs of suit on the ordinary scale.

MATSIKIDZE ATTORNEYS-AT-LAW,APPELLANT’S LEGAL PRACTITIONERS ZINYENGERE RUPAPA , 2ND RESPONDENT’S LEGAL PRACTITIONERS