John Madziya N.O v Annie Bhazho and Zimbabwe Women's Bureau

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CASE NO. LC/H/980/22
JUDGMENT NO. LC/H/346/25
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CASE NO. LC/H/980/22

JUDGMENT NO. LC/H/346/25

JOHN MADZIYA N.O VS

ANNIE BHAZHO AND

ZIMBABWE WOMEN’S BUREAU

THE LABOUR COURT OF ZIMBABWE

L. HOVE J.

BULAWAYO 10 APRIL 2025, 23 SEPTEMBER 2025

For the Appellant	: No appearance For the 1st Respondent	: C. Mahlangu For the 2nd Respondent	: C. Muclecle

JUDGEMENT

Hove J:-

On 16 October 2023 the court upheld the confirmation of a draft order issued by the applicant on 13 October 2022.

As a result of that confirmation, the matter has now been placed before the court for purposes of quantifying damages due to the 1st respondent. The applicant claimed 12 months’ salary, January 2021 to December 2021 less US$118 that had been paid in January 2021. She also claimed cash in lieu of leave in relation to 37,5 leave days that were due to her. She also claimed overtime worked.

The amount claimed is US$19 082,00 outstanding one-year salary in damages, US$2 487,75 cash in lieu of leave and US$3 039.60 overtime worked. The total claim is US$24 609,35.

The first respondent argued that she was employed on a one year fixed term contract and the employer terminated her contract in January 2021 and she is claiming the outstanding January 2021 salary and the salary from February to December 2021 being the salary due to her for the unexpired period of her fixed term contract.

THE LAW

In the case of Gauntlet Security Services V Rodgers Leonard SC88/97. The court stated that damages must arise ex – contractu. The general rule governing the measure of damages for loss of employment is that the employee is entitled to be awarded the amount of wages or salary he would have earned, save for premature termination of his contract by the employer. He must also be compensated for the loss of any benefit to which he was contractually entitled of which he was deprived in consequence of the breach.

The law also provides that the employee must mitigate his loss. He must look for and accept any reasonable offer of alternative employment. He cannot just do nothing.

The law is clear therefore that an employee ought to mitigate their damages if they do not, their damages would be reduced. See Kuda Madyara V Globe and Phoenix Industries SC63/02. It is also a trite principle of law that where an employer dismisses you and the period for which you were contracted for has not expired, the employer is obligated to pay you for the unexpired portion of your contract.

THE FACTS

The first respondent had been employed by the second respondent on one year fixed contracts renewed from 2012. In January 2021 the employee reported for duty and was only terminated on 5 January 2021. The court made a finding in its judgement under Judgement NO. LC/H/311/23 that the first respondents contract had been renewed on the same terms and conditions that is she had her contract renewed for one year from January 2021 to December 2021. That there had been tacit relocation of the contract.

By operation of law therefore the first respondent was entitled to her salary and benefits for the unexpired term of her contract. This entitlement however is subject to her having mitigated her damages.

She demonstrated in court the steps she took to mitigate her damages. She stated that she is 45years and is well educated and qualified for the job that she was employed in. she stated in evidence that she had applied physically and via email in search of a job but she did not get a job. She attached to her affidavit email annexures D1 to D15 as evidence that she had seriously sought to get alternative employment from the moment she had been dismissed, she applied to Tsungirirai an NGO for the position of Grants Officer, she also applied as a HR Consultancy, was interviewed but never got the job. She continued to seek alternative employment as evidence by the emails submitted on record. She even tried to get an alternative job in Zambia, was called for an interview, they promised to get back to her but they never did. She registered with employment council but never got a job.

She submitted that she was struggling financially and her daughter assisted with her upkeep. She submitted that in September 2024, her efforts were eventually rewarded as she got a job and has been employed since then. Before getting this job in September 2024, she had tried her hand at vending selling fish and plastics but the venture was not successful, under cross examination she remained consistent. She disputed that 3 months’ salary was adequate damages. She stated that it took her about 4 years to replace her lost employment. 12 months’ salary in damages was not in any way excessive.

The second respondent argued that the Supreme Court in Mudzimuwaona V Zimra SC 04/18 stated the duty to mitigate equally applies to fixed term contract making reference to the cases of Maseko V Jongwe Printing and Publishing CO Pvt Ltd 2002 2 ZLR 571 and the South African case of Mayers V Abrahamson 1952 (3) SA 121 the second respondent persisted with its submission that the first respondent had a legal duty to mitigate.

The legal principle was not contested, infact the first respondent had, in recognition of that legal principle, rigorously sought alternative employment. She argued that she also was under extreme financial doldrums and tried relentlessly to get alternative employment.

The court accepts that she was able to demonstrate that she had tried to mitigate her losses and even though she never got a job for a long time, she continued to seek alternative employment until she got employment in September 2024.

The employer was also not able to demonstrate or show that the employee could have gotten alternative employment within the 3 months that it offered.

The second respondent argued further that the employer is an outfit that depended on donor funds but now with the United States Government cutting its donations to Africa, they had been affected and could only manage to pay 3 months’ salary in damages. The first respondent denied they were entirely dependent on donor funds, she stated that the second respondent had properties which they rented out. They also still had other donors and had other sources of income. This was not challenged by the second respondent’s witness who actually stated that one donor had given the organisation $60 000 United States Dollars and that they had properties to rent out in Harare and Bulawayo.

Leave Days

The first respondent stated that leave days were never contested.	The only issue between the parties was unlawful dismissal.

Overtime

The claims for overtime had also not been contested except to argue that they had prescribe. The court also made an extant decision that overtime had not prescribed.

In the result, there is no basis in law to reduce the first respondent’s claim since she has successfully demonstrated that she mitigated her losses by trying to seek alternative employment. She also was able to show that the employer had other donors supporting its activities, it was not only USAID. The employer was also able to pay the damages as it has properties in Harare and Bulawayo which are income generating for the second respondent. A donor had also paid $60 000usd. The second respondent admitted to having other sources of income. After examining all the evidence from the first and second respondent, I find that it is fair and just to pay the first respondents claims.

The following order is therefore made.

ORDER:

The second respondent shall pay the first respondent the following amounts

Damages equivalent to 12 months’ salary:

less US$118 paid in January 2021:	-USD$19 082,00

Cash in lieu of leave equivalent to 37.5 days	-USD$2 487,75

Overtime worked	-US$3 039,60

Total amount payable in United states dollars	-US$24 609,35

The total amount payable can be paid in the local zig currency at the interbank rate applicable on the date of payment in full.

The second respondent shall pay first respondent’s costs.

……………………………….

L. HOVE J.

/tn

MAPHOSA MAHLANGU ATTORNEYS FOR THE FIRST RESPONDENT

CALEB MUCHECHE AND PARTNERS LAW CHAMBERS FOR THE SECOND RESPONDENT.