Petrozim Line (Private) Limited v Johannes Manyenga

### Preamble
Judgment Number SC 99/25
1
Civil Appeal No. SC 320/25
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REPORTABLE   (99)

PETROZIM     LINE     (PRIVATE)     LIMITED

v

JOHANNES     MANYENGA

SUPREME COURT OF ZIMBABWE

UCHENA JA, MAKONI JA & MWAYERA JA

HARARE: 11 JULY 2025 & 31 OCTOBER 2025

A.K. Maguchu, for the appellant

L. Uriri, for the respondent

MWAYERA JA:

INTRODUCTION

This is an appeal against part of the judgment of the Labour Court (“the court a quo”) handed down on 30 December, 2024 wherein it issued an order quantifying damages in lieu of reinstatement. The respondent also lodged a cross appeal against part of the judgment, particularly paragraph 1 of the operative part of the judgment, which excluded some benefits and back pay payable to him (“the respondent”).

FACTUAL BACKGROUND

The appellant is a company duly registered in terms of the laws of this country with the capacity to sue and be sued.  The respondent was employed by the appellant as a Deputy General Manager.  He was employed from 16 May 1994 up until 20 September 2019. During the course of employment, the respondent was appointed as Acting General Manager.

He was charged with two counts of contravening section 4(a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (“the regulations”), that is, committing any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract. A disciplinary hearing was subsequently held at the end of which the respondent was dismissed from employment.

The respondent appealed against his dismissal in the court a quo, which appeal was dismissed. The decision of the disciplinary authority was therefore upheld. Disgruntled, he noted an appeal in this Court. The appeal was upheld on 18 May 2023 and the operative part of the judgment of this court is as follows:

“1. The appeal be and is hereby allowed with costs.

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

a. The appeal be and is hereby allowed with costs.

b. The judgment of the Disciplinary Authority, per Honourable W. Mandinde be and is hereby set aside and is substituted with the following:

i. The finding of guilty by the disciplinary authority and the resultant dismissal of the appellant from employment be and is hereby set aside.

ii. The appellant be and is hereby reinstated without loss of salary and benefits from the date of suspension, being the 20th of September 2019.

iii. In the event that reinstatement is no longer tenable, the respondent shall pay the appellant damages in lieu of reinstatement to be agreed between parties failing which either party may approach the court a quo for quantification.”

Pursuant to the Supreme Court’s judgment ordering reinstatement, the respondent presented himself for duty on 19 May 2023.  However, he was instructed by the appellant to leave the premises and await further communication.  On 24 May 2023, the appellant, through its legal practitioners, wrote to the respondent’s legal practitioners advising that reinstatement was no longer tenable and that the appellant had elected to pay damages in lieu of reinstatement.

The respondent accepted this position, and the parties subsequently engaged in negotiations to determine the quantum of damages payable. However, they were unable to reach an agreement on the appropriate amount, resulting in a referral of the matter to the Labour Court for the quantification of damages.

In the proceedings before the court a quo for the quantification of damages, the respondent sought back pay. In relation to back pay, the respondent claimed salary arrears from 20 September 2019 to 17 May 2023, being the date on which the order of reinstatement was issued. He quantified the claim at US$394,244.10, calculated by multiplying his monthly basic salary of US$8,760.98 by a period of 45 months.

In addition to basic salary, the respondent also sought the value of contractual benefits which, in his view, formed an integral part of his remuneration package. These included a housing allowance, monthly motor vehicle usage, medical aid contributions, non-pensionable and taxable allowances, as well as school fees, clothing allowance, pension contributions, annual reimbursements for professional body subscriptions and social club fees, and air travel tickets.

In its determination, the court a quo acknowledged the principles governing the quantification of damages in wrongful dismissal cases and noted that the respondent failed to demonstrate how he mitigated his loss after his suspension and dismissal. It found that the respondent did not indicate how long it would have taken him to secure alternative employment, which factor ordinarily affects the quantum of damages.

However, the court a quo found that the onus rested on the appellant to demonstrate when the respondent could have reasonably been expected to obtain such employment and what income he ought to have been earning in mitigation of his loss. In the absence of such evidence, the court found that it was not in a position to pluck figures from the air, hence the respondent was entitled to the amount in back pay as per his claim.

Further, in assessing entitlement, the court reviewed the respondent’s contract and determined that he would have continued to receive his basic salary, housing allowance, motor vehicle benefit, medical aid, a non-pensionable allowance, and a taxable allowance had he not been unlawfully dismissed. The court found that annual bonus was excluded as it was discretionary. It proceeded to calculate the respondent’s earnings over a 45-month period, from 20 September 2019 to 18 May 2023, at USD 13,523.75 per month inclusive of benefits. In light of the above findings, the court a quo issued the following order:

“1. Pay the applicant: Back-pay and benefits in the sum of USD 608, 535.00.

2.  Pay the applicant: Damages in lieu of reinstatement in the sum of USD 210, 263, 52.

3.  Pay the applicant: Back-pay and damages in the sum of USD818, 798.52 (being the total of paragraphs (1) & (2) above). Payment to be in United States Dollars or in local currency at the ruling rate using the prescribed formula.

4.  Pay the applicant cash in lieu of leave in the sum of USD67, 618.75 using the same method as in (3) above.

5.  Sell the company vehicle which is in the custody of the applicant to the applicant according to the company policy.

6.  Pay applicant’s pension, NSSA and medical aid contributions for the period September 2019 to May 2023 to the relevant service providers.

7.  Pay interest at the prescribed rate from date of judgment to date of payment in full.

8.   Pay costs of suit on the ordinary scale.”

Aggrieved by some aspects of the court a quo’s order outlined above, the appellant has approached this Court seeking relief on the following grounds of appeal:

GROUNDS OF APPEAL

The court a quo erred at law in failing to find that the respondent’s duty to mitigate arose from the date of termination and that therefore the only compensation due to the respondent is limited to the average period it would take him to obtain alternative employment.

The court a quo erred at law in failing to subject the back-pay claimed to the principle of mitigation of loss.

The court a quo erred at law in failing to apply the correct principle of law that the duty to mitigate damages arises from the date of termination and not from the date of a favorable judgment as found in this instance.

The court a quo erred at law in finding that back-pay accrues to the date of the Supreme Court judgment when contrary to this finding, the correct position of the law is that back-pay accrues to the date of the Labour Court judgment albeit on terms as amended by the Supreme Court.

The court a quo erred at law in compensating the respondent with back pay and damages when the only compensation due to the respondent is limited to the average period to obtain alternative employment.

The court a quo grossly misdirected itself in finding that the respondent was remunerated in United States Dollars as at the time of termination of the contract of employment contrary to evidence from both appellant and respondent that no United States Dollars payroll was introduced post the 2019 conversion of the payroll into Zimbabwe Dollar and evidence until 11 June 2021, which is way after the termination of the respondent’s contract. (sic)

The court a quo grossly misdirected itself in entitling the respondent to payment in United States Dollars as paid to fellow employees in his grade when the respondent declined the condition precedent attached to the payment of salaries in United States Dollars.

By granting the respondent security guard, dress allowance, cell phone, laptop provisions, school and university fees, on the sole basis that the respondent provided proof, the court a quo erred at law in that it failed to provide reasons for its finding by relating and weighing contrary evidence that was produced by the appellant that the respondent was not entitled to the said benefits.

The court a quo erred at law in finding that the appellant ought to sell its company vehicle to the respondent when the respondent was only entitled to a right of first refusal and in any event, when the exercise of quantification of damages ought to produce an order sounding in money.

The court a quo erred at law in finding that the appellant ought to make contributions to the respondent’s pension, NSSA and medical aid in a quantification of damages when the order of the court ought to sound in money.

The court a quo erred at law in ordering payment of unspecified sums of money to unsuited parties when the court’s mandate in such proceedings is limited to a determination of a specific sum or sums of money payable between the litigants before it.

The court a quo erred at law in awarding the respondent cash in lieu of leave when an employee that is unlawfully dismissed and is without employment at the time of quantification is already on a period of leave.

The court a quo erred at law in awarding the respondent a laptop benefit and security guard benefit in its calculation of the respondent’s gross salary and benefits in circumstances where the said benefits do not form part of the respondent’s contract and where the respondent did not claim the said benefits.

The court a quo erred at law in including the cost of a motor vehicle replacement for the respondent in the quantification when the respondent was not entitled to a vehicle replacement.

RELIEF SOUGHT IN THE MAIN APPEAL

The appeal succeeds with costs.

That the parts appealed against of judgment of the court a quo be and are hereby set aside and substituted with the following:

“The respondent shall pay USD$210 263.52 in damages to the applicant.

The respondent shall pay interest on USD$210 263.52 at the prescribed rate from the date of the judgment to the date of full and final payment.

The claims for back-pay and payment of NSSA, pension and medical aid contributions, cash in lieu of leave, for the transfer of the motor vehicle and replacement of the motor vehicle, dress allowance, cell phone, laptop provisions, school and university fees be and are hereby dismissed.

There shall be no order as to costs.”

The respondent filed a cross appeal on the following grounds:

GROUNDS OF APPEAL (CROSS APPEAL)

The court a quo erred by excluding the respondent (cross-appellant)’s (hereinafter the respondent”) claim for reimbursement of professional body and social club subscriptions in its quantification of back-pay and benefits in accordance with the employment contract.

The court a quo erred in excluding the respondent’s claim for monthly fuel allowance in its quantification of back-pay and benefits, despite the employment contract providing for fuel disbursements and the entitlement being undisputed.

The court a quo erred in excluding the respondent’s claim for a dress allowance, despite the employment contract providing for annual clothing entitlements and the dispute being only over the quantum thereof.

The court a quo erred in excluding the respondent’s entitlement to US$ 47 000-00 in university fees for two children and US$8 850-00 in secondary school fees for one child from back-pay and benefits during the five-year dismissal period.

The court a quo erred by failing to consider and award the respondent’s claim for international business travel air tickets, as the entitlement to two tickets to the United Kingdom was undisputed, with only the return tickets in question.

The court a quo erred by failing to consider and award the respondent’s claim for a mobile phone handset and monthly airtime.

RELIEF SOUGHT ON CROSS APPEAL:

WHEREFORE, the cross-appellant prays for the following relief:

The cross-appeal is allowed with costs.

Paragraph 1 of the judgment of the court a quo be and is hereby amended to read as follows:

“The respondent be and is hereby ordered to:

Pay the applicant: Backpay and benefits in the sum of USD$ 608 535-00, together with USD$126 459-16 being the total contractual benefits.”

SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, Mr Uriri, for the respondent, formally abandoned the point in limine that had been raised in the respondent’s heads of argument, which related to the assertion that the primary relief sought by the appellant was fatally defective. He further advised the Court that the appellant had conceded the cross appeal and accordingly submitted that the cross appeal ought to succeed, subject to confirmation by counsel for the appellant.

Mr Maguchu, for the appellant, confirmed that the cross appeal was not being contested. He then moved the Court to remit the matter to the court a quo for determination of the issues that had been placed before it but which it did not rule on.

On the main appeal, Mr Maguchu also informed the Court that a concession was being made in respect of grounds of appeal numbers 8, 13, and 14.  He submitted that although the judgment of the court a quo made reference to the issues, they did not form part of the operative order. Accordingly, and in view of the concession, he moved that these grounds be struck out.

Counsel also informed the Court that the parties had agreed on the issue of medical aid, specifically, that the appellant would refund the respondent for medical expenses incurred. He further advised that the parties had also resolved the currency-related issues arising under grounds of appeal 6 and 7. Consequently, counsel moved that those grounds, together with ground 11, be struck out. With respect to ground 10, he clarified that while the ground was not being abandoned, the issue had now been settled. He stated that the only outstanding issues requiring determination by the Court were those raised in grounds of appeal 1 to 5, which collectively relate to the proper formula for the calculation of damages, and ground of appeal number 9, which challenged the order made by the court a quo directing the appellant to sell the motor vehicle to the respondent.

Regarding ground 9, Mr Maguchu indicated that this Court has previously ruled in First Mutual v Muzivi SC 09/07 that orders in quantification applications must be sounding in money.  Counsel argued that the court a quo erred by issuing an order that was not monetary.  The Court inquired whether the appellant was contesting the sale of the vehicle or merely the fact that the order was not monetary.  In response, counsel explained that the appellant’s concern was twofold; firstly, that the order did not take into account the relevant provisions of the employer’s motor vehicle policy; and secondly, that the court a quo failed to ascertain or determine the monetary equivalent of the benefit.  He submitted that, should this ground of appeal be upheld, the decision of the court a quo on this point ought to be set aside.  Following further engagement with the Court, counsel indicated that the matter may be remitted to the court a quo for proper consideration.

On the issue of the correct formula in the calculation of damages, he stated that a party whose contract of employment is breached is entitled to compensation for such breach and any compensation beyond what was actually lost would amount to profit.  He further submitted that such loss must be assessed over the period during which the employee could reasonably have secured alternative employment.  In this regard, he contended that back-pay must be subject to the principle of mitigation of damages and that the court a quo erred in awarding back-pay without requiring proof of mitigation of damages.  Counsel submitted that the appellant’s position was that the respondent would reasonably have secured alternative employment within two years of dismissal. When the Court inquired whether the duty to mitigate arose from the date of dismissal, 20 September 2019 to September 2021, counsel confirmed that this period reflected the respondent’s loss which was subject to compensation. Any award beyond that, he argued, would be unjustified.

Per contra, Mr Uriri, for the respondent submitted that there was an error in the founding affidavit with respect to the date when the respondent was suspended and dismissed.  He stated that the respondent was suspended in 2019 and dismissed in August 2020 and that these details were fully captured in this Court’s judgment between the same parties, SC 40/23, which sets out the timelines correctly.  It was counsel’s further submission that, for the period from 19 September 2019 to 14 August 2020, there was no duty to mitigate as the respondent was expected to render service.

With respect to the first ground of appeal, counsel for the respondent stated that damages include back-pay and prospective elements.  He stated that employees that are not reinstated are entitled to both back-pay and prospective damages. It was counsel’s argument that back-pay is divided into two categories, namely, the period of suspension and the prospective period after.  He submitted that the onus rests on the appellant to prove how much the respondent would have earned in mitigation.  He submitted that the court a quo did not err in its finding that the appellant did not place any figure before it and on that score, and as such, ground one ought to fail.

On ground number 4, he submitted that the appellant’s argument that back-pay accrues to the date of pronouncement of the judgment of the Labour Court was misplaced and as such the ground ought to fail.

Mr Uriri further submitted that the issue raised in ground 9 was subject to issue estoppel, as it had been addressed in SC 88/22.  He referred to correspondence in that matter indicating that the respondent had been informed that the vehicle was due for sale and he could therefore take it with him.  When the Court inquired whether the matter had been argued before the court a quo with reference to the applicable motor vehicle policy, counsel conceded that it had not.  Counsel clarified that while the court a quo outlined the respondent’s claim, it did not engage with the policy provisions.  Counsel accordingly prayed that the appeal succeeds in part, and that the portion relating to the motor vehicle be remitted to the court a quo for proper determination.

ISSUES FOR DETERMINATION

Whether or not the court a quo erred and misdirected itself in its application of the legal principle governing the quantification of damages.

Whether or not the court a quo erred in issuing an order that included elements of relief not sounding in money.

ANALYSIS

Whether or not the court a quo erred and misdirected itself in its application of the legal principle governing the quantification of damages

The sole issue that arises from the first to fifth grounds of appeal is whether the court a quo properly applied the settled legal principles that govern the assessment of damages in lieu of reinstatement.  This particularly relates to mitigation of loss and the point in time from which the computation of such damages ought to have commenced.  It is clear from counsel for the respondent’s submissions that the appellant’s contention is that although a party whose contract of employment is breached, is entitled to be compensated for such breach, any compensation beyond what was actually lost would amount to a profit.  The appellant also contends that the loss has to be assessed over the period during which the employee could reasonably have secured alternative employment.

It is an established principle that when an employee is unlawfully dismissed and reinstatement is untenable, he is entitled to damages.  Part of the damages are back-pay only if the employee was suspended without pay.  The essence of this principle is that an employee should be put in the position they ought to have been had they not been unlawfully dismissed.  This principle was enunciated in the case of Zimbabwe Revenue Authority v Mudzimuwaona SC 4/18, at pp 6-7, wherein the Court cited with approval the case of Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583(S) at p 586 C-D, where Gubbay CJ made the following remarks:

“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”

The Court further proceeded to make the following remarks:

“The remarks by the learned judge show that in assessing damages for unlawful termination of an employment contract, the court has to place the employee in the position he would have been save for the premature termination of the contract. This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract This position was aptly captured in Goedhals v Graaff-Reinet Municipality 1955 (3) S.A 482 in which Hall J, at 487C-E said;

‘The general principle upon which damages are to be assessed was laid in Victoria Falls and Transvaal and Power Co. Ltd v Consolidated Langlaate Mines Ltd 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what the opportunity of finding water would be worth to the plaintiff under the circumstances of the case.’”

In view of the above, in assessing damages, the starting point would be consideration of what the employee would have earned, had they not been dismissed.  It therefore follows that back-pay, makes a huge chunk of the damages that the employee is entitled to.  In Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S) at 254H-255A Mcnally JA (as he then was) stated the following:

“…It seems to me that ‘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. Back-pay is thus a concept associated with reinstatement. If an employee is reinstated she will normally be awarded back-pay. If she succeeds in proving wrongful dismissal, but is not reinstated, she will be entitled to ‘damages’, a major element of which will be back-pay. Perhaps, more correctly, one should say the damages will be assessed by reference to the back-pay lost. But here the back-pay will be limited to a period from the date of wrongful dismissal to a date by which she could, with reasonable diligence, have obtained alternative employment.” (Underlining for emphasis)

The case of Redstar Wholesalers v Mabika SC 52/05 provides for the calculation of back pay in instances where an order of reinstatement is granted with retrospective effect.  At p 4 of the judgment, this Court held that:

“…The entitlement of the respondent to back pay was not in issue.  It was common cause that the reinstatement (‘being with full salary and benefits’) was to have retrospective effect.  See Oliver Chiriseri v Plan International SC 56/2002; Kuda Madyara v Globe & Phoenix Industries (Private) Limited t/a Renco Mine SC 63/2002.  What is in issue is the date to which the back-pay was payable.  It has been decided by this Court that the relevant date, namely the date to which back-pay should be payable is the date on which the order of reinstatement is made.  In the Chiriseri case, supra, this Court stated at p 7 of the cyclostyled judgment:

‘However, there is no basis for awarding the appellants back-pay and benefits in respect of the period after 29 March, 1995, the date on which the order of reinstatement was issued.” Accordingly, the order for back-pay in the instant case should be payable to 9 July 1999, the date on which the order of reinstatement was made…’” (Underlining for emphasis)

The above cited authority makes it clear that the date to which back-pay is payable is the date on which the order for reinstatement is made.  In casu, the order for reinstatement was issued on 27 August 2021, and the respondent was to be reinstated from the date of his suspension, 20 September 2019.  What can be gleaned from the above is that the respondent is regarded, in terms of the law, to have remained in employment throughout the period from September 2019 to 27 August 2021.  Having said that, the entitlement to back-pay therefore, spans from 20 September 2019 to 27 August 2021.

Regarding the appellant’s argument that the court a quo failed to properly consider the principle of mitigation of loss, this Court is inclined to agree that the court a quo misdirected itself in this respect.  It is an established principle that damages excluding back pay, as mentioned above, are subject to mitigation. In Zimbabwe United Passenger Company v Daison SC 87/02 at p 8, the Court held that:

“…I now wish to deal with the mitigation of damages.  It is well established that an employee who considers, whether rightly or wrongly, that he has been unlawfully dismissed, is not entitled to sit around and do nothing.  He must mitigate his damages by looking for and taking temporary employment when available.  See, for example, Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S) at 586D-E; and Ambali v Bata Shoe Co Ltd 1999 (1) ZLR 417 (S) at 419A-B. However, the burden of proof rests on the employer to show that the employee has, or should have, earned an income from some other source.  See Nyaguse v Mkwasine Estates (Pvt) Ltd, supra, at 575C.  In my view, apart from the sum of $2 500.00 which Daison said he earned whilst temporarily employed by Kamunhu Bus Service, Zupco failed to prove that Daison earned or ought to have earned an income from some other source and the amount thereof.  Daison’s evidence was that he looked for alternative employment but was unsuccessful.  There was no evidence to the contrary.”

Similarly, in the case of Tel-One (Pvt) Ltd v Zulu SC 110/04, at pp 6-7, it was stated that:

“An employee who has been dismissed, whether lawfully or unlawfully, is under a different legal obligation from an employee who has been suspended.  A dismissed employee is under an obligation to mitigate his damages as quickly as possible and failure to do so might cause him to be denied damages.  See Ambali v Bata Shoe Co. Ltd 1999 (1) ZLR 417 (S).   In this regard Mcnally JA had this to say at p 419:

‘There are also those, and Ambali is one of them, who seem to believe that they must on no account look for alternative employment; that so long as their case is pending they must preserve their unemployed status; that if they look for and find a job in the meanwhile they will destroy their claim.’

It cannot be emphasized too strongly that this is wrong.  There may be some confusion arising out of cases which deal with wrongful suspension rather than wrongful dismissal.

The learned judge went on further to state:

‘But if an employee is wrongfully dismissed his duty to mitigate his loss arises immediately.  If he is offered a good job the day after he is dismissed, he must take it or forfeit any claim for damages.  If he is offered a good job only after he has been unemployed for six months, he must take it.  If in the meantime he has instituted proceedings for reinstatement, he may continue there, but his claim for damages will usually then be limited to his loss over the six-month period.’

The principle that emerges from the above authorities is that an employee who is on suspension has a legal obligation to be available for employment by his employer.  He cannot take up employment while on suspension as that has the effect of terminating his previous employment.  On the other hand, an employee who has been dismissed is under an obligation to look for alternative employment almost immediately upon dismissal in order to mitigate his damages.’”

The court a quo erroneously treated back pay and damages as wholly distinct heads of claim and proceeded to award the respondent additional damages over and above the 23 months and one week’s back pay inclusive of contractual benefits.  By so doing, it failed to take into cognizance the fact that back pay, particularly where reinstatement is ordered with retrospective effect, is itself a form of damages aimed at placing the employee in the position he would have been in had the unlawful dismissal not occurred.  See the Madyara case (supra).

In such circumstances, any additional award ought to have been carefully examined to avoid double compensation.  While the court a quo correctly found that the appellant had failed to demonstrate how or when the respondent could reasonably have secured alternative employment, it nonetheless misdirected itself in its treatment of the overlapping claims for back pay and damages.  In the result, the portion of the judgment relating to the “additional damages” ought to be vacated and the matter ought to be remitted to the court a quo for proper quantification.

Whether or not the court a quo erred in issuing an order that included elements of relief not sounding in money.

The appellant in the ninth ground of appeal contended that the court a quo erred in issuing an order that was not sounding in money.  Mr Maguchu argued that the court a quo failed to take into consideration the provisions of the employer’s motor vehicle policy.  Further, it was counsel’s argument that the court then failed to ascertain the monetary equivalent of the benefit.  It should be noted that Mr Uriri made a concession regarding the court a quo’s failure to take into account the motor vehicle policy.  Given the concession, this issue will not detain the Court as the concession was properly taken.  The court a quo erred in issuing an order which was not sounding in money.

It is trite that once a court has found that reinstatement is no longer tenable and proceeds to award damages in lieu of reinstatement, the resultant order must be sounding in money.  The role of the court in such circumstances is to quantify, not to defer quantification or to substitute monetary awards with declaratory forms of relief.  The position was well articulated in the case of First Mutual Life Ltd v Muzivi 2007 (1) ZLR 325 (S) at 327E – 328A wherein this Court made the following pertinent pronouncements:

“…I now turn to examine whether the Labour Court complied with the order of the Supreme Court.  The Concise Oxford Dictionary gives the following definition of quantify: “Quantify– to determine quantity of; measure or express as quantity” In the very first sentence of its judgment the Labour Court stated as follows:  “This is an application for quantification of damages.  The basic principle in the assessment of damages is that the plaintiff should be placed in the position he or she would have been had the contract been fully performed.” Having started by stating correctly what the application before it was about in the very first sentence, it is not clear why the Labour Court ended up not doing what it was clearly directed to do. The Labour Court was supposed to assess and determine the monetary value (quantum) of each claim that was to be awarded to the respondent (the employee).  The employer was supposed to be advised what exactly it was supposed to pay to the employee in figures.  What the Labour Court did was not quantification at all.  What was required were specific monetary awards in respect of each claim so that the employer would know how much it was to pay. A mere reference to awards being made is not quantification …” (Underlining for emphasis.)

In casu, the excerpt of the contract between the parties quoted by the court a quo showed that the respondent was entitled to a motor vehicle which would help the respondent in the performance of his duties.  This motor vehicle was to be for company and limited personal use.  In the court a quo, the respondent made a claim for the vehicle he was using and the replacement vehicles he ought to have received.  This claim was disputed by the appellant.  The court a quo in determining the issue of the motor vehicle stated that the respondent was entitled to the right to be allowed to purchase the vehicle allocated to him and the replacement vehicles as well.  It erroneously issued an order not sounding in money.

Taking cognizance of the Muzivi case (supra) and the operative part of the order of the court a quo, it is apparent that the court erred by failing to state, in clear and quantified terms, the amounts the appellant was required to pay. The directives given that the appellant must sell the company vehicle to the respondent required proper quantification to render them effective and enforceable.

It should also be noted that the court a quo arrived at this decision without considering the appellant’s motor vehicle policy.  The court a quo proceeded to order the appellant to sell the company vehicle in accordance with the company policy.  As a result, the matter ought to be remitted to the court a quo for a proper quantification of the damages and determination of whether or not the respondent is entitled to purchase the vehicle in line with the company policy.

DISPOSITION

The court a quo misdirected itself in its quantification of damages.  It should not have awarded damages in addition to back pay and benefits, as this resulted in double compensation.  Further the court a quo’s failure to issue an order sounding in money invalidated para 5 of the order of the court a quo.   Accordingly, it is ordered as follows:

“1. The main appeal succeeds in part with no order as to costs.

2.  Paragraphs 2, 3, 4, 5 and 7 of the judgment of the court a quo be and are hereby set aside.

The case is remitted to the court a quo for a proper determination of the quantification of damages and a consideration of the employer’s motor vehicle policy.

By consent the cross appeal succeeds.

Paragraph 1 of the judgment of the court a quo is set aside and substituted with the following:

“The respondent be and is hereby ordered to pay the applicant back pay and benefits in the sum of USD 734 994.16 being the original benefits of USD 608 535.00 together with USD 126 459.16 being the total contractual benefits.”

Each party shall bear its own costs.

UCHENA JA		:         I agree

MAKONI JA		: 	I agree

Maguchu & Muchada Business Attorneys, appellant’s legal practitioners

Mutumbwa Mugabe & Partners, respondent’s legal practitioners