Raguel Mtombeni v National Pharmaceutical Company of Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/ 111/23
HELD AT HARARE on 28 March 2023
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE				JUDGMENT NO. LC/H/ 111/23

HELD AT HARARE on 28 March 2023				CASE NO. LC/H/84/23

AND

In the matter between:-

Raguel Mtombeni					Applicant

And

National Pharmaceutical Company

Of Zimbabwe (Pvt) Ltd					Respondent

Before Honorable Mr. Justice L.M. Murasi

For Applicant				Mr. S. T. Mutema

No Appearance for Respondent

MURASI J:

On 13 January 2023, this Court confirmed a draft ruling by Fadzai Marovanyika N.O. and ordered that Respondent pay to the Applicant a total sum of ZWL $ 12 804 277-56. Applicant is dissatisfied with the Order and intends to approach the Supreme on appeal. This is therefore an application for leave to appeal in terms of section 92 F (2) of the Labour Act, (Chapter 28:01).

Applicant’s prospective grounds of appeal are as follows:

The court a quo erred at law by dismissing the claim for interest at the prescribed rate notwithstanding its finding that the termination of contract was irregular.

The Court a quo erred at law by disregarding and departing from the draft ruling which locked the amount awarded as damages in United States Dollars, notwithstanding that the respondent did not controvert such computation formula for which reason; it ought to have been regarded as accepted.

The court a quo erred in fact resulting in an error in law that by abiding by the submissions filed of record in respect of medical aid benefit the appellant abandoned such a claim.

The court a quo erred by not awarding costs of suit as prayed for to the successful party notwithstanding the principle of law that costs follow the cause.

Respondent did not file any response and also did not attend the hearing.

APPLICANT’S SUBMISSIONS

Mr. Mutema proceeded to motivate the application as follows. In respect of the first prospective ground of appeal, it was submitted that the Applicant had prayed for interest to be awarded but the Hearing Officer had not done so. It was further pointed out that even though the Hearing Officer had not done so, the Court a quo should have awarded this claim and in so-doing the Court was referred to paragraph 6 of the Applicant’s heads of argument. It was argued that since the award became a judgment debt, interest at the prescribed rate should have been awarded by the Court. Mr. Mutema argued that the Court had therefore erred in not granting this claim and it thus became a point which merited being taken to the Supreme Court on appeal.

As far as the second prospective ground of appeal was concerned, it was argued that the Court had erred in noy ‘locking’ the award in  United States Dollars in order to ‘protect’ the Applicant from the hazards of inflation. Reliance was had to precedent particularly Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC). It was further submitted that the Respondent had not argued against this position in the previous hearing.

In the third prospective ground of appeal, it was stated that the Court erred in making the finding that by making a concession during oral submissions, Applicant had abandoned the claim of medical aid. Mr. Mutema submitted that the concession did not amount to an abandonment of the claim in the circumstances and Applicant intended the matter to taken to the Supreme Court on appeal.

The fourth prospective ground of appeal deals with the issue of costs. It was stated that the Court had erred in not awarding costs to Applicant as he was the successful party. After an exchange of pleasantries on the issue as to whether this was not within the discretion of the Court, Mr. Mutema stated that he was going to abide by the documents filed of record.

ANALYSIS

It is trite that a court is allowed to refer to its documents in order to arrive a just decision. It is therefore pertinent that I refer to Case No. LC/H/858/22 in the determination of this matter. Pages 46 to 49 of that record carry the contract of employment between Applicant and Respondent and in particular page 47 refers to Applicant’s remuneration which is pegged in Zimbabwe Dollars. Page 179 of that record carries Applicant’s computation of damages put before the Hearing Officer. The claim is in Zimbabwe Dollars. However, Applicant, in that document, ‘converts’ the figures to United States Dollars at a rate of 1 USD to 16.80 United States Dollars. Clearly the claim, therefore was in Zimbabwe Dollars. This was the currency in which Applicant was paid as salary by the Respondent. At 40 of that record, which relates to Applicant’s claim, the following averments are made:

44. The claimant’s basic salary was at ZWD 66 740-22 per month. This was tabulated in terms of conditions of service notice hereto attached as annexure “Q”.

On the basis of this document, it is submitted that the total amount which was to be received in salaries for the duration of the contract is ZWD 3 403 751-22.”

Page 43 contains the following on the claim for medical aid:

“58. The claimant was entitled to medical aid benefits. He still is, in this case he claims the contribution for the same to be made in the amount specified, the employer was supposed to contribute 75% of the amount and the employee to provide for 25%. For this cause of action is for the employer to make a once off contribution for the same contractual period to the medical aid. Alternatively, the claimant’s claim is for the payment of the amount which the Respondent ought to have contributed,”

Page 44:

“70. (i) The Respondent be and is hereby ordered to pay Claimant all salaries and benefits in the sum of United States Dollars 935 511-57.”

A reading of the above claim and facts from Case No. LC/H/858/22 shows the following:

Applicant presented evidence that he was being paid in Zimbabwe Dollars.

Applicant made his claim in Zimbabwe Dollars.

Applicant ‘converted’ the amounts he was earning to United States Dollars.

The final claim was expressed in United States Dollars by the Applicant even though no documentation was produced to justify the claim in that currency.

This is the figure that was reproduced by the Hearing in the draft ruling.

Applicant urger the Hearing Officer, in respect of the medical claim, to make an order for the Respondent to pay the amount claimed to the medical aid and NOT to him.

In the hearing on 11 January, 2023, Mr. Mutema made the following statement in respect on medical aid:

“It is not claimable. I agree with 1st Respondent.”

Having laid out the background above, I will proceed to deal with the fourth prospective ground of appeal. This should not detain the Court. The first issue to deal with is whether Applicant was ‘the successful party’ in the proceedings. This Court took time to explain to Mr. Mutema that the ground of appeal was indeed an abuse of the Court. Firstly, the application for confirmation was brought before the Court as a statutory requirement. The Act and the Rules of Court enjoin the Labour Officer to apply for confirmation of a draft ruling. Applicant was a Respondent in those proceedings. Was the Applicant ‘the successful party’?. The facts militate against making such a finding. Secondly, costs are awarded at the discretion of the Court. There was no averment at all that the Court had not exercised its discretion judiciously. The following was stated in S v Chikumbirike 1986 (2) ZLR 145 (S0 at 146 F-G:

“The principle is therefore well established. It follows that in the present appeal, for the decision of the learned judge to be reversed, it must be shown that the learned judge committed an irregularity or misdirection, or that the manner in which he exercised his discretion was so unreasonable as to vitiate the decision made.”

Thirdly and mostly importantly, what is the point of law which the Supreme Court is being called upon to determine? None. There is no merit in the prospective ground of appeal.

The third prospective ground of appeal is equally unmeritorious. Elsewhere in this judgment I have reproduced what Mr. Mutema stated during oral submissions. In the Court’s judgment, it is recorded that he indeed made the concession that the claim was ‘not claimable’. He now makes a “U-Turn” and alleges that this did not amount to an abandonment of the claim. In Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC 25/12 it was held as follows:

“A formal admission made in pleadings cannot be ignored by the court before whom it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue or facts admitted.”

Having made the concession during oral submissions that the medical aid was not claimable, Mr. Mutema now wants to ‘resile’ from such concession. He did not withdraw the statement. The Court relied on the concession as reflected in the Court’s judgment. There are indeed no prospects of success as regards this prospective ground of appeal.

The first ground of appeal makes interesting reading. The Hearing Officer did not grant the Applicant interest in the award. This Court, during oral submissions, asked the Hearing Officer to comment on the non-award of interest. The response was as follows:

“There was no justifiable ground to factor in the interest that is why I did not factor it in.”

In the judgment, this Court made the following findings at page 3 of the judgment:

“Mr. Mutema stated that Applicant had not factored in the interest requested for. Applicant’s response was that no justifiable ground had been advanced by second respondent. Mr. Mutema did not strenuously argue for its inclusion and I tend to find favour with the decision of the Applicant that no justifiable grounds were advanced for its award.”

Firstly, it is not this Court that “dismissed” Applicant’s claim for interest. It was the Hearing Officer. This Court’s ‘crime’ was to uphold that decision. Indeed, in the hearing of Case Number LC/H/858/22 Mr. Mutema did not argue for the award of interest. In the present case, Applicant has become ‘alive’ and referred to precedent dealing the award of interest. This was not done previously. Applicant can be described to be “wiser after the event”. Secondly, this also involves an exercise of discretion. Was the discretion to uphold the decision of the Hearing Officer unreasonable in the circumstances? In my view, this is what should be placed before the Supreme Court. Alas, the prospective ground of appeal does not make such averments.

The second prospective ground of appeal clearly disregards the facts of the matter and attempts to ‘twist the law’ in Applicant’s favour. I have reproduced elsewhere in this judgment, the claims placed before the Hearing Officer. I have summarized the facts to show that the contract of employment shows that the Applicant’s emoluments were designated in Zimbabwe Dollars. I have also shown that the United States Dollar component was the result of the conversions made by the Applicant in the claim. Applicant is the one who gave the rate of exchange. It was not the Hearing Officer. During the oral submissions this Court made the direction that the claim and submissions were to be anchored on the Zimbabwe Dollar as shown by the evidence. This is also captured in the judgment. It was indeed an error made by the Hearing Officer to ‘lock’ the damages in United States Dollars. There was no such basis.

It is trite that courts cannot make contracts on behalf of parties. It is also a truism that parties to a contract should leave according to what they would have expressed themselves to be bound in terms of a contract. In casu, Applicant and Respondent had a valid contract of employment which showed that the currency was the Zimbabwe Dollar. Indeed, the Applicant, in his claim, calculated the amounts due in Zimbabwe Dollars. Applicant, however, now wants those emoluments to expressed in United States Dollars as a ‘hedge’ against inflation. He therefore solicits the assistance of the Court. The Supreme Court in a plethora of decisions, has guided the lower courts as regards the interpretation of contracts. Generally, for a contract to come into being, the parties must agree on the nature of the obligation or obligations that they wish to create and more importantly, the consequences which will obtain ex lege as a result of the agreement. In Kundai Magodora and Other v Care International Zimbabwe SC 24/14 PATEL JA (as he then was) had this to say:

“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 onerous or oppressive. This is a matter of public policy….Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

The parties in casu clearly contracted that the currency of remuneration was the Zimbabwe Dollar. The Applicant is requesting the Court to read into the contract of employment what the parties did not agree upon. Further, Applicant is requesting the Court to ignore the legal principle of currency nominalism. Generally, nominalism is the concept that the dollar amount of debt remains fixed on financial statements despite fluctuations in inflation or exchange rates which may affect the actual purchasing power of money. The theoretical foundations of the nominalistic principle are based on the prerogative of the State over currency. The currency is the creation of the law, arising out of the legislative activity of the State. The parties contract on the basis of the value of money as fixed by the law, namely on the basis of the nominal value. The State has the prerogative over money. This fact enables it to fix the amount of currency in circulation, its relationship to foreign currencies and its relationship toward gold as it deems fit. If a party contracts on the basis of a national currency, he contracts on the basis of the value fixed from time to time by the State.

It is my view that the above clearly explains Applicant’s predicament. The Supreme Court is unlikely to depart from the aforesaid principles of law. There is no merit in the ground of appeal.

In the result, the application for leave to appeal to the Supreme Court is hereby dismissed with no order as to costs.

Stansilous & Associates- Applicant’s legal practitioners.