Topic: Recent Labour Law Landmark Judgments (with
a heavy bias towards payment of damages in lieu of
reinstatement in foreign currency)
prelude
For a topic this wide and convoluted, the temptation to
write about anything and everything is seldom easy to
contain. In this paper, emphasis will however be
placed on recent judgments of the relevant courts of
law on the following areas which are considered
topical to an everyday labour practitioner:
Topical areas
 Payment of damages in lieu of reinstatement in the
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multicurrency regime;
Salient principles of Quantification of damages;
Termination of employment on notice;
Retrenchment;
Application of Section 92E (3) of the Labour Act to
arbitration awards;
Legitimate expectation in terms of Section 12B (3) (b) of
the Labour Act;
The dirty hands principle and the new constitution
The new Constitution – other talking points.
 The Supreme Court has accepted that where an
employee has been dismissed unlawfully during the
Zimbabwe dollar era but was reinstated and awarded
damages in lieu of reinstatement at a time when the
currency now in use is the foreign currency, he/she
should be paid such damages in the realizable
currency applicable at that time.
 Pacesetters to this recent Supreme Court thinking are
judgment are the following cases:
Makwindi Oil Procurement (Pvt) Ltd V Noczim 1988 (2)
ZLR 482 (SC)
 The Supreme Court was persuaded by the approach taken
by the English Court in Millangos v George Frank (Textiles)
Ltd [1975] 3 All ER 801, wherein the House of Lords took
the revolutionary step of reversing their previous decision
and ruling that where the justice of the case so required the
court could give judgment in favour of the plaintiff for the
amount of foreign currency due to him or its sterling
equivalent at the time of payment. This case followed a
spate of English decisions in which the House of Lords
consistently rejected appeals for a payment of either
contractual or delictual damages in a currency other than
the Pound sterling. The court also referred to several South
African decisions which followed and accepted the position
enunciated in the Millangos case.
In the Makwindi Oil Procurement case, the Supreme
Court held that:
 In the absence of any legislative enactments requiring
the courts of Zimbabwe to order payment in local
currency only, the innovative lead taken in Millangos
and the subsequent extensions to the rule there
enunciated should be adopted in Zimbabwe. This
would bring Zimbabwe into line with many foreign
legal systems.
 Fluctuations in world currencies justify the acceptance of
the rule that not only may a court order be expressed in
units of foreign currency, but also the amount of foreign
currency is to be converted into local currency at the date
when leave is given to enforce the judgment. To apply any
other date could mean that the successful party would
suffer an irrecoverable loss. Justice requires that a plaintiff
should not suffer by reason of a devaluation of the local
currency between the date on which the defendant should
have met his obligation and the date of actual payment or
the date of enforcement of the judgment.
 In claims for damages, it is for the plaintiff to select the
currency in which to make his claim. It is for him to
prove that a judgment in that currency will most truly
express his loss and accordingly most fully and exactly
compensate him for that loss. While the currency of
account is a factor of importance, it is not decisive of
the currency in which the claim should be made and
judgment given.
 See also the findings by OMERJEE J in Stanmarker
Mining (Pvt) Ltd v Metallon Gold Corporation HC
3074/04.
This case opened floodgates
for the acceptance of the
principle of equitable
compensation in a currency
that best compensates
litigants in Zimbabwe.
Kwindima Fabiola V Mvundura Louis HH 25-2009
 MAKARAU JP (as she then was) was faced with the
question as to “whether to extend the approach that has
been taken in the Makwindi case and be innovative to
enough to suggest that where a loss has been suffered and
can be calculated in both the local and in a foreign currency,
the court has a discretion to award judgment in that
currency that will redress the injury suffered and adequately
compensate the plaintiff for the loss. It would then follow
that where that currency is the foreign currency as opposed
to the local currency, then judgment should be in the foreign
currency for to award damages in the local currency, where
the local currency has been rendered valueless by inflation
might be to deny a plaintiff the redress that he or she seeks.”
 A review of the authorities on the matter appears to
me to indicate that where there is no statutory bar, the
courts can award judgments sounding in foreign
currency. For damages claims, the plaintiff must prove
that his or her loss was suffered in foreign currency or
put in the language of Leon J in the Elgin Brown case,
the plaintiff must prove that he or she felt the loss in a
foreign currency.
 Awarding the Plaintiff proved delictual damages in
the sum of US$35 000 for damages incurred after a
fraudulent sale of a house by the Defendant is not in
violation of any statutory provision governing
exchange control. It does not render the local currency
any less legal tender than do other judgments
expressed in foreign currency. It is simply an act of
applying the approach to a situation that has arisen
due to the ravages of inflation and one that could not
have been anticipated when the Makwindi case was
decided.
Gift Bob David Samanyau & 38 Others V
Fleximail (Pvt) Ltd HH 108-11
Considering that the bulk of the judgments above did
not deal with labour matters, Mutema J took the bull
by its horns in this case and held that;
 That the principle of currency nominalism works fairly
in an economy which can be described as normal or
stable or at the very worst, in which inflation is not
hyper, not like in an environment with a runaway
inflation as was the case in this country in the period
immediately preceding the introduction of the multicurrency regime. After introduction of multiple
currency in February, 2009 it is beyond cavil that the
Zimbabwe dollar died a natural death by disuse.
 To then give someone such currency which no one
nationwide was prepared to accept in any transaction,
let alone beyond our borders, as damages in lieu of
reinstatement, and after having laboured for the
employer for periods ranging between 25 and 46 years
like what the respondent did in casu is not only
immoral but an infringement of a human right.
 That if judges continue to cling to their precedents in
such a scenario of social and economic change, like the
grasp of an epileptic during a fit, they will certainly be
sacrificing the fundamental principles of justice and
fairness for which they stand.
 That based on the doctrine of stare decisis, this court is
bound by the plethora of Supreme Court decisions to the
effect that in calculating damages for unlawful dismissal in
lieu of reinstatement, the rate of salary to be used is the
one pertaining at the date of the reinstatement order;
certainly not the one obtaining at a later date. Applicants
must be paid their damages not in Zimbabwe dollars but in
foreign currency of their choice (and they chose the United
States dollars), the rate of salary to be used in the
calculation of the damages should be the one obtaining as
at 5 July, 2007 (the date of the reinstatement order) but
being the official rate of exchange of the Zimbabwe dollar –
United States dollar equivalent.
 See the findings of the Supreme Court in Red Star
Wholesalers v Mabika SC 52/05 and First Mutual Life v
Muzivi SC 9/07. The learned held, correctly so in our view,
that he was bound by these decisions on this point.
[These cases will be dealt with below]
- That the respondent, in the face of the stark economic
reality obtaining at the time of its tender of the
damages, was quite unreasonable in refusing to yield
to reason. It should accordingly pay the applicants
costs of suit.
On Appeal, the Supreme Court (2014);
 Agreed with the finding that the payment of damages
in lieu of reinstatement in foreign currency (realizable
currency) accords with the principles of fairness and
equity which are at the core of the interpretation of the
Labour Act by its judges.
 Raised an issue with the applicability of the
Kwindima v Mvundura case which dealt with
damages arising from a delictual claim vis a vis the
present case where the damages sought were
contractual.
 By the consent of the parties, the SC referred the
matter back to the Labour court for a quantification of
the damages using a realizable currency which the
employees felt would best compensate them fully.
 The court reasoned that the dictionary definition of
“currency” refers to money that is in use at that time
and so the Zimbabwean Dollar (a system of money
that is in general use in a particular country) was not
in use in the country at the moment.
Unfortunately the court did not write a detailed judgment as was
expected by all and sundry. It merely issued an order.
This approach is not
novel in the Supreme
Court and was also
adopted in the following
cases by the Highest
court of the land:
Central African Batteries V John Mhangu SC 79/10
 In this case, the Supreme Court was presented with an
appeal against the judgment of Kachambwa J in which he
ordered that an employee had to be paid back pay and
damages in lieu of reinstatement in the sum of Zim$692
118.00 having reasoned that, on the strength of the
principle of currency nominalism, his hands were tied and
he could not order a conversion of the amount to the
United States dollar currency. The Supreme Court allowed
the appeal and ordered the company to pay Mr. Mhangu in
the United states dollar equivalent of the amount awarded
in Zimbabwean dollar at a rate to be agreed between the
parties and failing which at a rate to be determined by the
court.
 As is the norm, the parties failed to agree, and the
learned Kachambwa J had to convert the said amount
into its United States dollar equivalent at the rate
applicable on the day of reinstatement. The court
relied on a letter from the Reserve Bank of Zimbabwe
on the applicable exchange rate then and the employee
was paid off in United States Dollars.
 Again, the court simply issued an order and did not
write a detailed judgment.
Horace Nzuma And 3 Others V Hunyani Paper And Packaging
(Pvt) Ltd Case No. SC 137/11
The judgment was issued on 13 June 2014
 In this case, the Supreme court also set aside a judgment of the Labour
Court awarding employees damages in Zimbabwean dollars. The Court
held that:
“1.The appeal succeeds with costs to the effect that the judgment of
the court a quo ordering the respondent to pay in Zimbabwe
Dollars is set aside.
2.The matter is remitted to the court a quo to exercise its
equitable jurisdictions in determining the question of conversion
of the back pay into foreign currency and (the) applicable rate.”
 Underlining for emphasis. The court’s decisions in these cases are
underpinned on this doctrine of equity which is ubiquitous theme in
the labour Act. The Labour Court should not approach such matters
with a formalistic (currency nominalism precedent centered) approach
without considering the equitability and fairness of the decision made.
Red Star Wholesalers V Mabika SC 52/05
 In quantification of damages in labour disputes, the
rates that are applicable are those that applied at the
time of reinstatement order.
 This position was accepted and indeed binding on
MUTEMA J in Samanyau V Fleximail Supra.
First Mutual Life V Muzivi SC 9/07
 The Supreme Court’s decision seems to be in conflict
with that in Red Star Wholesalers v Mabika in that just
as in the Mabika case, the court also rejected the
contention that the applicable rates are those
obtaining at the time of determination of an appeal
but stated that the rates applicable are those applied at
the time of suspension or dismissal.
 The onus to prove damages in lieu of reinstatement
lies on the employee and not the employer.
 See the remarks of CHEDA JA at page 7 of the
cyclostyled judgment.
Heywood Investments Pvt Ltd T/A Gdc
Hauliers V Zakeo SC 32/13
 A court before which an interlocutory application has
been made should not proceed to determine a matter
on the merits without first determining the
interlocutory application.
 Rule 14 of the Labour Court Rules, 2006 does not
provide for filing of affidavits. Failure to file an
affidavit to counter an allegation contained in an
affidavit is not fatal. One can always lead evidence.
Court should use powers in Section 90 (A) (4) of the
Labour Act to accept oral evidence.
 See the case of GMB v Muchero SC 59/07
 Court cannot pluck figure from air because there has been
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insufficient evidence led to arrive at an informed decision.
Court should call for oral or written evidence in terms of
the powers in Section 90 (A) (4) of the Labour Act.
Guesswork and arbitrary approximation are not welcome
where evidence could have been produced
Back pay cannot be awarded beyond the date of
reinstatement.
An award of damages should take in to account the
question of tax. Failure to do so is a fatal misdirection.
Chiriseri & Anor v Plan International 2002 (2) ZLR 261 at
265D-G
Triangle Limited V Khumbulani Phiri
SC 107/04
Relying on legal practitioner’s submissions on
quantification in the absence of oral evidence is a
misdirection.
Zuva Petroleum Pvt Ltd V Nyamande And
Another LC/H/195/2014
 Termination of a contract of employment and
dismissal are different and distinct processes.
When Section 12B was enacted in an amendment
to the Labour Act, it did not repeal or substitute
Section 12 (4) which provides for termination on
notice other than through Section 12B. Section 12B
and Section 12 (4) provide for two different
procedural methods of ending a contract of
employment through dismissal and termination
on notice respectively.
 Act 7 of 2005 which ushered in Section 12B of the
Labour Act did not repeal the provisions of the Act for
the giving of notice of termination within the periods
specified in Section 12(4). Accordingly, the submission
that Section 12b of the Labour Act came to do away
with the possibility of terminating a contract of
employment on notice is a misunderstanding of the
law as it stands.
 Further and in any event, the employees were dealt with in
terms of the provisions of their contracts of employment
which allowed termination of their contracts of
employment on notice. This approach is consistent with
the ratio in the Supreme Court judgment in Chirasasa v
Nhamo and Another SC 135/02
 The law in this country might not be in line with the
International Labour Organisation’s Conventions but the
court is bound to apply the law as it is until same has been
amended.
 See also the similar remarks of Patel JA in CARE
International v Magodora SC 24/14 at page 6 of the
cyclostyled judgment.
 Section 65 of the Constitution which provides for safe
and fair labour standards does not derogate from the
provisions of the Labour Act.
 SI 15 of 2006 is only applicable when a contract is
being terminated for misconduct related issues
(disciplinary issues).
 Compare with ZIMSUN LTD V EMILIO BEGEDE
LC/H/14/07 where the Labour court, with respect
wrongly, held that an employer can opt to terminate a
contract on notice thus obviating the need for a
possibly lengthy and involved disciplinary hearing.
This decision sharply contrasts the Supreme court
decision in PG Industries P/L v Mabhena SC 44/03.
Freda Rebecca Gold Mine Holdings Ltd
V Nhliziyo & 180 Others SC 16/13
A contract of employment is concluded by an employer
and employee and can only be terminated by one or
other of them. The Minister not being a party to the
employment agreement could not terminate it.
 A proposed retrenchment can either be refused by the
Minister or approved subject to terms and conditions
which the Minister deems fit to impose. Thereafter the
Minister must cause his decision in the matter to be
conveyed to the employer and the other affected parties. In
approving a proposed retrenchment the Minister is in
effect saying, “You may proceed with the retrenchment but
only on these conditions.” The Minister’s directive is not
constitutive of the retrenchment nor does it terminate the
contracts of employment of the proposed retrenchees. It
merely sets the conditions upon which the employer, if still
so minded, can proceed to retrench. The contract is
terminated by the employer when it proceeds with the
retrenchment.
Senele Dhlomo-Bhala v Lowveld Rhino Trust
HH 263/13
Per Mafusire J
 The decisions of the court in Dhodhlo v Deputy Sheriff of
Marondera and Others HH 76/11 and that in Mvududu v
Agricultural and Development Authority HH 286/11 were
wrongly decided on the question of the effect of an appeal
to the Labour Court from the decision of the arbitrator visà-vis the provisions of Section 92 E of the Labour Act.
 Section 92E is an omnibus provision regarding all appeals
made in terms of the Labour Act. It must necessarily cover
appeals from the determinations or decisions of an
arbitrator to the Labour Court. There is nothing to suggest
that the legislature evinced a contrary intention.
 Dismissing an objection that sought to impeach the
Arbitration Certificate, that where a party has so
substantially complied with the requirements of the
law as the applicant has done in this case and where
there is no discernible prejudice to the other party, it
“would make justice turn on its head” to deny relief in
such circumstances.
 The Labour Act does not require the submissions of the
arbitration agreement such as a reference to arbitration in
an application for registration of an arbitral award with the
high Court for enforcement purposes. This only applies to
arbitration awards emanating from voluntary arbitration.
In any event, assuming that the same was a pre-requisite,
failure by an applicant to annex the reference to arbitration
or statement of claim and of defence as the substitutes for
the arbitration agreement does not form a legitimate
ground for opposing the application for the registration for
the purposes of enforcement in terms of Section 98 (14) of
the Labour Act.
 In an application for registration of an award, the court
has steadfastly refrained from getting involved in the
merits which in the majority of cases would lie for
determination by the Labour Court on appeal.
Tamuka Giya V Ribi Tiger Trading T/A
Trianle Tyre HH 57-14
Per Chigumba J
 The High Court does not concern itself with the merits
or otherwise of the appeal, it will register the
arbitration award unless, a defense in terms of articles
35 and 36 of the model law is pleaded and proved, or
the arbitral award is suspended by the Labour Court,
or stay of execution has been granted by the Labour
Court.
 It is trite therefore that an appeal to the Labour court,
against the merits of a decision does not suspend the
operation of the decision appealed against. See
Gaylord Baudi v Kenmark Builders (Private) Limited
HH-4-12, Elvis Ndluvu v Higher Learning Centre HB 86-10, Net-One Cellular (Pvt) Ltd v Net-One Employees
& Anor 2005 (1) ZLR 275, DHL International Ltd v Clive
Madzikanda HH-51-10, Benson Samudzimu v Dairibord
Holdings HH-204-10. This is expressly provided for in
section 92E of the Labour Act.
 There is a school of thought that adheres to the supposition
that, an arbitral award being tantamount to an award by a
tribunal, or an inferior court cannot be suspended by the
noting of an appeal for the simple reason that, at common
law, only decisions of superior courts, courts of inherent
jurisdiction, are automatically, suspended by the noting of
appeal. The simplicity of this argument appeals to me. It
would appear that the Labour Act, in s 92E, sought to
reinforce that common law position. However, all is not
lost, as the Labour Act provides a pressure valve, in the
form of a medley of interlocutory remedies that can be
employed pending determination of an appeal
Magodora & Ors v CARE
International SC 24/14
 The plain meaning of Section 12B (3) (b) is that the
employee on a contract of employment of fixed
duration must have had a legitimate expectation of
being re-engaged upon its termination and that he
was supplanted by another person who was engaged in
his stead. These requirements are patently conjunctive
and the mere existence of an expectation without the
concomitant engagement of another employee does
not suffice.
 It is undesirable to rely upon the principles derived
from international customs or instruments to strike
down clear and unambiguous language of an Act of
Parliament. In any event the said conventions or
treaties do not form part of Zimbabwean law unless
they are specifically incorporated therein while
international customary law is not internally
cognisable where it is inconsistent with an Act of
Parliament
 The express inclusion of terms such as “this contract
shall in no way whatsoever lead to a legitimate
expectation of further employment beyond the
contract’s date termination” indisputably undermines
and renders untenable the contention that an
employee has been unfairly dismissed within the
contemplation of Section 12B (3)(b). The employee is
bound by the express terms that he agrees to and
cannot then complain; notwithstanding those terms
that he/she had a legitimate expectation.
 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 erroneous or oppressive. This is a
matter of public policy.
 It is highly irregular and unfair for an appellate court to
assume the jurisdiction of a court of first instance and
to pronounce on issues which are properly cognisable
in a court of first instance but have not been canvassed
before that court.
FBC Bank v Chidamba
LC/H/49/14
 The requirement that a party who is in contempt of a
Court order should purge such contempt before
approaching the Court for relief is a fundamental
aspect of our procedural law. The Supreme Court has
pronounced itself quite strongly on this point in the
case of Associated Newspapers of Zimbabwe (Pvt) Ltd v
Minister of State for Information 2004 (1) ZLR.
 Section 85 of the Constitution which provides that the
fact that a person has contravened any law does not
debar them from approaching the court for relief does
not admit of a blanket application. This provision is to
be applied within the context of subsection (1) of
Section 85. It is with reference to the enforcement of
fundamental human rights and freedoms enshrined in
the Constitution. This applies where a person has filed
a specific petition or application alleging a violation of
fundamental rights or freedoms.
 Thus Section 85 cannot avail to a litigant who has
appealed against a decision and has not obtained an
interim order for the suspension of the decision
appealed against.
The new Constitution – Other
talking points.
 Right to fair and safe labour practices and standards and to
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be paid a fair and reasonable wage [65(1)] …Section 2A and
12B of the Labour Act
Right to just, equitable and satisfactory conditions of work
[65(4)]
Right to a fair and public hearing before an impartial and
independent court, tribunal or forum established by law
[69(1-3)] …SI 15 of 2006
Right to legal representation – either to employer or
employee “every person” [69(4)]
Right to terminal benefits especially pension [71 (4)]
Legitimate expectation [68 (2) ]
Cold storage Company Ltd v Bernard
Chitayi & 133 others LC/H/610/13
Kudya J accepted the point that failure to file heads of
argument on time is excusable where a party has not
obtained the full record of proceedings.
………….
However contrast the decision with that in ….
ZETDC v Dembaremba and 11
Ors LC/H/140/14
 In that case, Maxwell J held that while an appeal and
indeed the preparation of heads of arguments is based on a
record of proceedings, the filing of heads is governed by
the rules of the court. In the face of a rule of the court
providing that heads of argument are to be filed within 14
days of the filing of the Notice of Response, the averment
that in the absence of a record of proceedings the time for
filing of heads of argument cannot begin to run is legally
unsound. Though there appears to be an apparent
absurdity, the court cannot depart from a provision of the
rules in the absence of an amendment to the same to cure
the absurdity.
Zimasco Private Limited v
Marikano SC 6/14
 If a disciplinary authority has no jurisdiction to hear a
particular matter, or was biased or its decision grossly
unreasonable, the person aggrieved is empowered to
approach the Labour Court and apply for the review of
the proceedings. The fact that, instead of seeking a
review, one can approach a labour officer in terms of s
93 of the Act does not and cannot affect the review
power of the Labour Court provided the requirements
for such review are met.
 Once judgment has been reserved, the parties have no
right to file further heads of argument. However a
party has the right to apply to file such heads of
argument. When that happens, as it did in this case, it
is incumbent upon the judicial officer seized with the
matter to hear both sides and thereafter to make a
decision on whether or not to allow such filing.
 Where an issue of law, particularly one of jurisdiction,
is raised, a court should be slow to refuse to allow such
further argument unless the court is satisfied that such
further argument would not take the matter any
further or that it amounts to an abuse of court process.
 The rationale for allowing issues of law to be raised at
any time is to enable a court to have all the
information, even at a very late stage, so that it is
enabled to make a proper decision. The issue raised
(in this case)was a serious one (jurisdiction). If a court
has no jurisdiction that would be the end of the matter
and any determination made thereafter would be null
and void,
 It is settled law that a question of law can be raised at
any time, even for the first time on appeal, as long as
the point is covered in the pleadings and its
consideration involves no unfairness to the party
against whom it is directed.
 On termination of employment in terms of Section 14 ,
the court held; that Section 14(4) has no express
conditions attached to it except the requirement as to
the amount of sick leave which an employee can take
in any one year before the right to terminate can be
exercised by an employer.
 However, since the decision to terminate an
employment contract has far reaching consequences,
one should assume that before such a decision is taken
the employer would be obliged, at the very least, to
advise the employee of the fact that he has taken the
sick leave contemplated in s 14(4) and that for that
reason it is intended to terminate his contract of
employment in terms of that section on a date
specified in such notice unless the employee returns to
work before the expiration of the specified period.
 It would not be proper for an employer to invoke the
provisions of s 14(4) of the Act and without notice to
the employee, proceed to terminate his contract of
employment. In short the audi alteram principle
would still need to be respected and failure to do so
would render any such termination null and void.
ZESSCWU v Welfare Educational Employers
Institutions Association SC 11/2013
 Neither the Labour Act [Cap. 20:28] or the Arbitration
Act [Cap. 7:15] has any provision granting a litigant in
voluntary arbitration proceedings a right of appeal
against an arbitral award granted in those proceedings.
Both statutes do not provide for the remedy of an
application for review of such an arbitral award to the
Labour Court.
 The words “in terms of this Act or any other
enactment” limit the powers of the exercise of the
functions of hearing and determining to grounds
raised in an application and appeal made or noted in
the exercise of a right given under the Act or any other
enactment. There should be a provision in the Act or
any other enactment giving the party the right to make
the application or note the appeal to the Labour Court
before it can exercise the power to hear and determine
the matter as an application or appeal.
Voluntary arbitration proceedings cannot be subjected to
either an appeal or review under the Labour Act. They are
governed by the Arbitration Act.
 It is trite that where parties make submissions to
arbitration on the terms that they choose their own
arbitrator(s), formulate their own terms of reference to
bind the arbitrator and agree that the award will be final
and binding on them, the court of law will proceed on the
basis that the parties have chosen their own procedure and
that there should not be any interference with the results.
See Zesa v Maposa 1999(2) ZLR 452(SC). Even in cases of
misconduct of proceedings by the arbitrator, the court
would be reluctant to interfere, save in certain limited
instances in which an award is against public policy. The
standard is high.
I thank you.