Gracious Rutendo Chirendo N.O. and Norman Takawira v Zimbabwe Red Cross Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 20 FEBRUARY 2024
JUDGMENT NO. LC/H/117/24 CASE NO. LC/H/239/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 20 FEBRUARY 2024

AND 18 MARCH 2024

IN THE MATTER BETWEEN:-

GRACIOUS RUTENDO CHIRENDA N.O. AND

NORMAN TAKAWIRA

ZIMBABWE RED CROSS SOCIETY

JUDGMENT NO. LC/H/117/24 CASE NO. LC/H/239/23

APPLICANT

FIRST RESPONDENT SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

No Appearance for Applicant

For First Respondent	Mr. C. Warara

For Second Respondent	Mr. W. Magaya

MURASI J.,

In a judgment issued on 27 July 2023, this Court issued a judgment with the following Order: “1. The application for confirmation of the draft ruling is granted.

The draft ruling of Gracious Rutendo Chirendo N.O. is confirmed with the following amendment:

The claim for unlawful termination of the relocated fixed term contract is hereby granted.

The claimant shall be entitled to damages for the unexpired term of contract.’

Parties are hereby ordered to file submissions in respect of mitigation of damages and non-payment of salaries within ten (10) days from the date of this order.

The Registrar is hereby directed to thereafter set down the matter for hearing at the next available date.

Each party to meet its own costs.”

There was a delay in the filing of documents as ordered in paragraph 3 of the Order and First Respondent attributed this to the apparent confusion he had as to the requirements.

FIRST RESPONDENT’S EVIDENCE IN MITIGATION

The following is a summary of the evidence given by the First Respondent in mitigation. Despite the Order of the Court clearly stating that the First Respondent was entitled to damages for the unexpired term of the contract, he first took the Court to events leading to the termination of the contract. When asked by his legal practitioner whether he tried to look for alternative employment, his response was that he had tried to do crop farming and animal husbandry but these had failed. He stated that he had a degree in Banking and Finance but it was difficult to get employment because of the economic conditions prevailing in the country. He stated that he had begun the crop farming immediately after being dismissed from employment. He also informed the court that he had an old motor vehicle which he often hires out and gets an average income of USD 50-00 per month. He also stated that he was in the business of selling second-hand clothes and realizes an amount of USD 80-00 per month from the enterprise.

First Respondent further informed the Court that he was unable to compete in the job market as there were a lot of young graduates and he had tried to find employment in the Non- Governmental Organisations but had failed. He further stated that he was entitled to a motor vehicle, 200 litres of fuel per month, medical insurance with a contribution of 50% from the employer, housing allowance of USD 100-00 per month, USD 50-00 transport allowance per month. He stated that he was owed salary arrears by the employer and gave a figure of USD12 000-00. He further stated that the conversions made on the schedule attached to the application for the monies that were paid in ZWL which should have been in United States Dollars.

Under cross-examination, First Respondent made the admission that he had not supplied any proof that he had tried to seek alternative employment after his dismissal. He also indicated under cross-examination any evidence that he had not immediately made a follow-up on the arrear salaries that he was now claiming. He also conceded that the contract of employment did not have a provision for fuel allowance and that in October 2019 he signed a new contract which provided for a less salary than what he was earning. He then revealed that the Second Respondent would make good the difference between his original salary and the one he was earning under secondment. He further stated that there were miscalculations in the schedule filed with the Court. He also confirmed that there was no provision for a motor vehicle in the contract he signed.

ANALYSIS

The First Respondent’s evidence has a lot of inconsistencies. He was keen to embellish his story as he went along. He had informed the Court that he was entitled to a motor vehicle but conceded that the contract did not provide for a motor vehicle. This therefore means that he was not

entitled to a fuel allowance as there was no provision for a motor vehicle. However, what is clear is that he did not provide any evidence of any attempts to secure alternative employment. The evidence of the hiring out of his truck did not show when this started and this also applies to the selling of second-hand goods. Indeed, First Respondent was a poor witness. The evidence is further compounded when he attempted to explain the schedule that is attached to the application. He admitted that there were errors. For example, the reason for converting amounts he had received in ZWL remained unexplained and obscure. These are salaries he had received but went ahead to convert them to United States Dollars. The sole reason being that he intended to bolster his claim to be in United States Dollars.

The Court notes that First Respondent submitted a new schedule in the closing submissions. I believe this to be highly irregular. This would be a departure from the original claim submitted before the Court. The schedule is clearly an attempt to align it with the evidence given by the First Respondent in his evidence before the Court. In Keavney and Anor v Msabaeka Bus Services (Private) Limited 1996 (1) ZLR 605 (S), it was stated as follows:

“A pleader cannot be allowed to direct the attention of the other party to one issue and then attempt to canvass another.

The purpose of pleadings is to define issues, and to enable the other party to know what case he has to meet.”

There is an issue that was raised by Second Respondent as regards the currency in which the payments have to be paid. The argument was that it should be on 1:1 parity basis. In my decision in Wellington Muneka vs Olivine Industries (Private) Limited LC/H/45/24, I made the following remarks:

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”

I believe the law was clearly laid out in the above-quoted precedents and there is no need to make a further analysis.

From the facts and evidence, it is clear that the First Respondent would be entitled to what was contained in the contract of employment. In Myers vs Abramson 1952 (3) SA 121 (C), it was stated as follows:

“The measure of damages accorded such an employee is, both in our law and in the English law, the actual loss suffered by him rep[resented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.”

In Zimbabwe Revenue Authority v Mudzimuwaona 2018 (1) ZLR 159 (SC) GOWORA JA (as she then was) had this to say at 164 A-B:

“The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it. The dispute between the parties does not and cannot extend beyond the life span of the contract.”

Having regard to the claim made by the First Respondent, it is clear that in certain of the months claimed as arrear salaries, First Respondent was paid in ZWL but has proceeded to ‘convert’ these to United States Dollars. The reason is not clear. They cannot be claimed. This involves the months January 2019 to May 2019, July to October 2019. The months from October 2019 to April 2020 are those in which the First Respondent was on secondment and was to be paid an amount

of $1284-75. These were paid. First Respondent sought to state that the Second Respondent was liable to pay the difference. This does not come out of the contract signed between the parties. These months are therefore disallowed. This therefore leaves the First Respondent eligible to be paid for the months of November and December 2018 as arrear salaries. The First Respondent would be entitled to payment for the unexpired term of the contract from August 2020 to April 2021 which is a period of 9 months at a salary of $1922 per month. No evidence was provided for the Cash in lieu of leave and this claim is therefore disallowed. Further, First Respondent would not be entitled to cash in lieu of notice as this is paid in the unexpired term of the contract and not provided for in the contract of employment. As already stated elsewhere in the judgment, First Respondent is not entitled to any fuel allowance as it was not provided for in the employment contract.

In summary, the First Respondent’s entitlements would be as follows:

Salary arrears for November and December 2018 at US$1922-00 per month = US$3844- 00

Damages for the unexpired term of the contract, that is, August 2020 to April 2021

=US$17298-00

Less any earnings which First Respondent got during the period in question =US$1170-00

The total payable is US$21 142-00 minus US$1170-00 =US$19972-00.

As already stated, this payments would be made at the prevailing interbank rate on the date of payment.

The following order is appropriate.

Second Respondent shall pay to First Respondent the sum of US$3844-00 as salary arrears for the months of November and December 2018.

Second Respondent shall pay to First Respondent the sum of US$17298-00 for the unexpired term of the contract less US$1170-00 given as earnings by First Respondent for the period in question.

The total sum to be paid by Second Respondent is US$19 972-00.

The said sum of money shall be paid within 30 days from the date of this Order at the prevailing interbank rate on the date of payment.

Each party to meet its own costs.

Warara and Associates-	 First Respondent’s legal practitioners. Coghlan, Welsh and Guest-	Second Respondent’s legal practitioners.