Bindura Nickel Corporation v Kennedy Kariwo & 9 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/155/24
HELD AT HARARE 12 MARCH 2024
CASE NO. LC/H/31/24
AND 8 APRIL 2024
IN THE MATTER BETWEEN:-
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE
LC/H/155/24

HELD AT HARARE 12 MARCH 2024
AND 8 APRIL 2024

IN THE MATTER BETWEEN:-
BINDURA NICKEL CORPORATION
AND
KENNEDY KARIWO
MICHAEL MSHANGENI
SHAKE NHIRE ESTATE (MARKO NHIRE)
NAISON PEMHIWA
WILLIAM MABANDE
LIKE CHANGARA
NGONDO MACHINGURA ESTATE (ANNAH TAMALI)
RESPONDENT
PETER CHIVAMBO
SHADRECK CHIVIVITE
FARANANDO CHIWUTA ESTATE (COLIN CHIWUTA)
RESPONDENT

JUDGMENT NO.
CASE NO. LC/H/31/24

APPELLANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH
EIGHTH RESPONDENT
NINTH RESPONDENT
TENTH

Before Honourable Mr. Justice L.M. Murasi

For Appellant
Advocate Ndlovu with Mr. A. Marara

For Respondents
Mr. M. Gwisai

MURASI J.,

This is one of those cases where the proverbial interests of justice and the law travel on parallel lines as most of the facts are sad reading indeed.

BACKGROUND

Respondents were in the employ of the Appellant in various capacities. The Respondents approached the Appellant with the intention of having their employment terminated on the basis
 1 of ill-health. The Respondents had contracted different illnesses during the course of their employment with the Appellant. The Appellant was supposed to apply for the termination of this employment in terms of the Group Life Assurance Scheme. The provision was that where medical evidence was varied showing that a member was permanently medically incapable of performing his/her duties, that employee would be entitled to retire prior to the normal age of retirement. Appellant was therefore required to submit the correct information in terms of that Scheme. The Appellant did not follow the procedure required. However, the Appellant proceeded to terminate the Respondents’ contracts of employment purporting to be doing so in terms of the Scheme.

The Respondents approached the Designated Agent for redress. The Designated Agent, the late A.N. Tahwa determined that the terminations were unlawful as Appellant had not correctly followed the procedure required in the circumstances. This led to the quantification of damages before V. Tasiyana. Appellant is dissatisfied with the latest determination and approached this Court for relief.

At the commencement of the proceedings, Advocate Ndlovu informed the Court that Appellant was abandoning some of the grounds of appeal. As a result, the following are the remaining grounds of appeal;

1. The Designated Agent erred and grossly misdirected himself at law and on the facts by ignoring the fact that the question of payment of terminal benefits in terms of Section 13 of the Labour Act (Chapter 28:01) to the Respondents was a question of law, and could be raised at any stage of the proceedings including at quantification for the first time.

2. The Designated Agent erred and grossly misdirected himself at law and on the facts thus by failing to address the legal effect of waiver by virtue of payment and acceptance of terminal benefits in terms of Section 13 of the Labour Act (Chapter 28:01) to the Respondents’ claim for damages.

3. The Designated Agent erred and grossly misdirected himself at law and on the facts by making a contradictory determination in one part, by admitting that all the Respondents were ‘chronically ill and no longer employable’ but still proceed to award back-pay.

4. The Designated Agent erred and grossly misdirected himself at law and on the facts by making contradictory determination in one part, by declining to award damages to the Respondents on the basis that they were ‘chronically ill and no longer employable’ but still proceeded to award back-pay to the same Respondents who were ‘chronically ill and no longer employable’ and could no longer work by their own admission.

5. The Designated Agent erred and grossly misdirected himself at law and on the facts by awarding in United States Dollars back-pay ignoring the effect of SI 33 of 2019 which converted all dues as at February 2019 into RTGS at the rate of 1:1 with the United States Dollar.
 6. The Designated Agent erred and grossly misdirected himself at law and on the facts by not deducting the Terminal benefits paid to the employees from the back-pay he awarded which unduly prejudiced the Respondent (Appellant).


The First, Fourth, Fifth and Ninth Respondents cross-appealed as follows:

“The Designated Agent erred at law and misdirected himself in dismissing the claim for damages in lieu of reinstatement for $1st, $4th, $5th and $9th appellants on the basis that they were chronically ill and therefore unemployable whereas the specified appellants were entitled to the damages as the termination of their contracts of employment was found to be unfair and unlawful and they were entitled to remain on the payroll.”

SUBMISSIONS BY THE PARTIES

Advocate Ndlovu stated that he would largely abide by the documents filed of record apart from the grounds of appeal that he had indicated that would be abandoned. In respect of the first ground of appeal, he submitted that the Designated Agent had misdirected himself in not considering the point of law that had been raised by the Appellant on the issue of waiver. He further submitted that this was a point of law which could be raised at any stage in the proceedings and the Designated Agent was enjoined to deal with it. To this end he referred to the case of Gold Driven Investments (Private) Limited v Telone (Pvt) Limited & Anor SC 9/13. He argued that the issue did not need to be specifically pleaded. He pointed out that Respondents had waived their rights by accepting the money which had been paid to them even though wrongly. He maintained that the payments assumed the complexion of ‘terminal benefits’ and that it did not matter what procedure had been adopted when the payments were made even if the process was unlawful.

Advocate Ndlovu submitted that the third ground of appeal raised the same issue of waiver which had been addressed in the first ground of appeal.

As far as the fifth ground of appeal was concerned, Advocate Ndlovu stated that there was a contradiction in the findings by the Designated Agent in that he had made the finding that the Respondents were chronically ill and were no longer employable and there was thus could not provide any services and thus were not entitled to any back-pay. He argued that the ruling should have indicated when the illness came in as the awarding of back-pay presumed that the employee was able to offer services.

As far as the ground of appeal dealing with the specific payments to be made in United States Dollars was concerned, Advocate Ndlovu argued that these amounts were known prior to the coming into effect of SI 33 of 2019 and therefore should have been ordered to be paid on the !:1 parity as determined by the law. He also indicated that the parties had also agreed on how the matter should be handled in respect of the $9th and $10th grounds of appeal. He therefore submitted that the appeal should partly succeed in the circumstances.


In response, *Mr. Gwisai* stated that he would address the first and third grounds of appeal as one. He referred to the heads of argument. He argued that the point of law had been addressed by the Designated Agent who had made a ruling on it. He referred the Court to page 14 and particularly paragraphs 4.4. and 4.5 of the ruling. He stated that the Designated Agent had made the ruling that the point of law which had been raised by the Appellant was one which he did not have jurisdiction to deal with. In this respect, it was argued that the Tahwa judgment was extant and that Appellant, if it had been dissatisfied, should have appealed to the Labour Court. *Mr. Gwisai* submitted that the Tahwa judgment had determined that the terminations were unlawful and that the Designated Agent who was dealing with quantification could not interfere with that determination. *Mr. Gwisai* further submitted that the correctness of the Tahwa decision could only be tested on appeal. It was further pointed out that Appellant had been granted leave to appeal but had not prosecuted the appeal and that Appellant now sought to ‘smuggle’ the point of law issue in quantification proceedings. It was further stated that the Designated Agent dealing with the quantification proceedings could not be expected to be an appellate court for the Tahwa decision as he did not have the requisite jurisdiction to do so.

As far as the fifth ground of appeal was concerned, *Mr. Gwisai* stated that the law was clear in this respect. He submitted reinstatement meant placing the employee back on the payroll from the date of termination to the date of the order. The additional effect, he stated, was also to give the employee compensation for loss of employment. He said that it did no matter that the employees stated that they could not work. *Mr. Gwisai* further argued that the Appellant had a remedy which was to utilize section 6 of the Policy and retire the employees on medical grounds.

On the seventh ground, *Mr. Gwisai* submitted that the Zambezi Gas case was instructive in that there had to be a liability or debt as at 22 February 2019. In this respect, he submitted that there was no liability until the dispute had been determined. The process would obviously require mitigation of those damages. To this end he referred the Court to its judgment in Wellington Muneka v Olivine Industries LC/H/45/24. He stated that these proceedings were concluded after February 2019.

AS far as the figures were concerned, *Mr. Gwisai* stated that it is correct that three (3) months damages were paid and these should be deducted from the total figures submitted. He also added that case law provided that these should be net figures and that this was not a fatal error which would need to be referred to the tribunal a quo. He stated that the net amounts had been varied and the figures had been agreed upon.

On the cross-appeal, *Mr. Gwisai* submitted that the denial of damages in lieu of reinstatement on the basis that the employees were unable to work was wrong. He stated that conditions of illness showed that reinstatement was not an option as one had to look at their position and then given them damages up to the period of normal retirement. He argued that their special conditions would need extra time to fine alternative employment. *Mr. Gwisai* further stated that the Appellant was supposed to seek recourse from the Insurer rather than deny the employees those damages.


In response to the cross-appeal, *Advocate Ndlovu* stated that the Designated Agent had properly exercised his discretion. He stated this emanated from the cross-examination of the Respondents.


during quantification proceedings where the Respondents had made the admissions that they could not look for alternative employment due to the nature of their illnesses. He further submitted that the Designated Agent had properly the principles in the **Ambalí** decision.

**ANALYSIS**

This is an appeal against the quantification of damages made by the Designated Agent following the Tahwa decision. However, before delving into the issues pertaining to the quantification proceedings, I need to attend to the issues in the first and third grounds of appeal. Appellant raised the issue that the Designated Agent did not deal with the point of law that was raised before him. This is not correct. The determination shows that this matter was dealt with under paragraph 4. I will reproduce the findings made under paragraph 4.5. as follows:

“I therefore find favour in Mr. Gwisai’s position for the applicants that this tribunal is not clothed with jurisdiction to reopen the merits of a determined case by Honourable Tahwa is limited to quantification envisaged in the case authority above. To do so would be to stray in illegality as the matter is res judicata. The case authorities highlighted are for an appeal forum in the Labour Court and therefore are misplaced before this quantification tribunal. Subsequently, I decline jurisdiction to entertain the last preliminary point. Equally the point in limine on acceptance of terminal benefits amounting (to) waiver of the right to challenge termination fails for want of jurisdiction.”

The first issue to note is that the Appellant is therefore not correct in stating that the issue was not dealt with. The second issue is that Mr. Gwisai pointed to the fact that Appellant had been granted leave to appeal which it did not prosecute. The issues that Appellant wanted to raise in that appeal are those that Appellant states it raised before the Designated Agent and were not dealt with. I did not hear Advocate Ndlovu deny what Mr. Gwisai stated in submissions on this point. It is trite that what is not denied is taken as having been accepted. The two grounds of appeal have no merit and ought to be dismissed.

GUBBAY CJ had this to say in **Gauntlet Security Services v Leonard** 1997 (1) ZLR 583 (S):

“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 remarks of the learned judge show that is 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. Thus damages in lieu of reinstatement are, in fact, a substitute of reinstatement. It is also correct to state that an employee who has been unlawfully dismissed is entitled to back-pay for the period from the unlawful termination to the date of the order. The employee is also entitled to compensation for loss of employment. In **Chiriseri & Anor v Plan International** 2002 (2) ZLR 261, SANDURA JA referred to the case of **Leopard Rock Hotel Co (Pvt) Ltd v Van Beek** as follows:

“…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 promotion prospects, interest, and other elements as appropriate.”

I now turn to the issue of what should be the currency applicable in the payment of damages to the Respondents. *Mr. Gwisai* referred the Court to this Court’s decision in the **Wellington Muneka** case. I believe it to be appropriate to reproduce the decision as I also believe it to be appropriate in the present matter.

“In **Zambezi Gas (Pvt) Ltd vs N.R. Barber (Pvt) Ltd** SC 3/20 in which MALABA CJ had this to say at page 9 of the cyclostyled judgment:

“The liabilities referred to in s 4(1)(d) of S.I 33/19 can be in the form of judgment debts and such liabilities amount to obligations which should be settled by the judgment debtor. In interpreting s 4 (1)(d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of S.I. 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 4 (1)(d) of S.I 33/19 to apply to them.

Section 4 (1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date. If, for example, the value of the assets and liabilities was, 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.”

A reading of the above makes it clear that for a liability to be covered by the 1:1 rule, the liability should be have arisen before the effective date. In casu, the liability to pay, that is the judgment, must have been so determined before February 2019. Such a position was supported by UCHENA JA in **Regis Maganzi vs Francis Jekera & Another** SC 52/22 where he had this to say:

“The order granted in Case No. HC 11449/18 was granted on 22/2/2019 and as such was not granted immediately before the effective date of the promulgation of S.I. 33 of 2019. The order was granted on the effective date but after it had come into effect, it can therefore not be valued in RTGS dollars at the rate of 1 to 1 as it falls under the provisions of section 4 (1) (e) of S.I. 33 of 2019.”


I have to put the matter into proper perspective. The judgment of the Court giving rise to the liability was in November 2021. This is when the ‘liability’ is deemed to have commenced. The determination of the debt or liability due by the Respondent was therefore made in November 2021. This therefore means the debt is susceptible to the provisions of section 4 (1) (e) as pronounced by UCHENA JA in the **Regis Maganzi case** supra. The correct interpretation should that the payment should be at the interbank rate on the date of payment.”

I am therefore of the considered view that *Advocate Ndlovu’s* submissions in this respect are an incorrect statement of the law as it be should applied.

I have elsewhere in this judgment stated what precedent states as regards what is owed to an employee who has been unlawfully dismissed. The position is that such employee is entitled to back-pay from the date of the unlawful dismissal to the date of the order. Additionally, such employee is also entitled to compensation for loss of employment. It has been submitted that the Designated Agent misdirected himself in awarding compensation for loss of employment when these employees were ‘unemployable’ due to the ‘critical illnesses’ they suffered. *Mr. Gwisai’s* response was that Appellant had a remedy which was a proper application to the Insurer for the Respondents to be retired on medical grounds. This option was not adverted to by the Appellant. In my view, Appellant cannot attempt to ‘wriggle out’ of the situation without exercising the legal route that was available to it. In the first place, the Appellant was the author of its misfortunes. I find refuge in the wise words of BHUNU JA in **Gwanda Rural District Council v Lourens Martinus Botha (SNR)** SC 174/20 at page 11 of the cyclostyled judgment. The learned judge had this to say:

“Having said that, the learned judge a quo buttressed his legal sentiments with the leading case of **Standard Chartered Bank of Zimbabwe v Matsika** 1997 (2) ZLR 389 (S) at 389 G for the proposition that no one should be allowed to benefit from his own wrong. In that case KORSAH JA had this to say:

‘a cardinal principle of the common law is expressed in the aphorism ‘nemo ex proprio dolo consequitor actionem,’ which translates; no one maintains an action arising out of his own wrong. Complementary to this principle is another which stipulates; ‘nemo ex suo delicto meliorem suam conditionem facere potest’ which means no one can make his better by his own misdeed.’

The facts show that Appellant intended to retire the Respondents on medical grounds. However, the Appellant did it the wrong way resulting in the determination by the Tahwa determination that this termination was unlawful. It was the Appellant who had caused the unlawful termination. Respondents were and are entitled to compensation for its wrongdoing. Now the Appellant implores the Court to find that the Respondents are not entitled to such compensation.


Appellant is approbating and reprobating. The ground of appeal should dismissed.

The Court notes that the Parties are agreed to the revised quantum of damages as stated by Mr. Gwisai.


This brings me to the cross-appeal. It was stated by *Mr. Gwisai* that the Designated Agent misdirected himself in denying the cross-appellants compensation. How did the Designated Agent handle this? The following was his finding:

“5.2.5 It is common cause and not in dispute that applicants could not mitigate their loss on the basis they were chronically ill to perform any type of work. Of the four only the first applicant was able to find brief employment. This tribunal has established these applicant(s) could not therefore mitigate their loss and are not candidates for damages, which is the period taken to find alternative employment. In the hearing all of the four conceded they could not seek alternative employment on the basis of their chronic illness. It further explains the payment made by the respondent of terminal benefits on ill health which was done. I am therefore not persuaded to grant the claim for any damages on the basis the applicant(s) were chronically ill and were no longer employable.”

There no suggestion by *Mr. Gwisai* that the Designated Agent misdirected himself on the facts. What I heard *Mr. Gwisai* to say was that that the cross-appellants were entitled to the compensation for loss of employment. In **Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10**, GAWRE JA (as he then was) had this to say at page 5 of the cyclostyled judgment:

“The position id also settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law. For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.”

The above sentiments in the cited judgment were not the line of argument presented by *Mr. Gwisai*. I therefore find no merit in the cross-appeal. It ought to be dismissed.

In the result, I find that the appeal partially succeeds in respect of the amounts subsequently agreed to by the parties. The finding of the Court is that the amounts have to be paid at the prevailing interbank rate on the date of payment. I also find that the cross-appeal is devoid of merit and ought to be dismissed.

The following order is appropriate:

1. The appeal partially succeeds.
2. The cross-appeal is hereby dismissed.
3. The Appellant is hereby ordered to the respective Respondents amounts as follows:
   a. Kennedy Kariwo USD$ 33 716-


b. Michael Mashangeni  
Shake Nhire Estate (Marko)  
c. Nhire)  
d. Naison Pemhiwa  

98  
USD$ 24 381-  
38  
USD 17 153-  
$ 19  
USD 25 405-  
$ 50


| Item                                                                 | Amount  |
|--------------------------------------------------------------------|---------|
| e. William Mabhande                                          | $ 75    |
| f. Luke Changara                                              | $ 18    |
| Ngondo Machinhra Estate(Annah)                               | 17 153  |
| g. Tamali) USD$                                              | 89      |
| h. Peter Chivambo                                             | $ 41    |
| i. Shadreck Chivivite                                        | $ 70    |
| j. Faranando Chiwuta Estate (Colin Chiwuta)USD$          | 66 127-75 |

4. The said sums of money shall be within sixty (60) days of the date of this Order at the interbank rate on the date of payment.

5. Each party to meet its own costs.

Mutamangira and Associates-          Appellant’s legal practitioners
Matika, Gwisai and Partners-          Respondents’ legal practitioners.


9
--- END OCR FALLBACK ---