Raymond Manyengavana & 12 Ors v Ferreira's Auctions

### Preamble
IN THE LABOUR COURT
HARARE, 20th SEPTEMBER, 2013
JUDGMENT NO. LC/H/473/2013
CASE NO.
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IN THE LABOUR COURT 				JUDGMENT NO. LC/H/473/2013

HARARE, 20th SEPTEMBER, 2013				CASE NO. LC/H/81/2004

AND 27TH SEPTEMBER, 2013

In the matter between

RAYMOND MANYENGAVANA & 12 ORS			-	Applicants

Versus

FERREIRA’S AUCTIONS						-	Respondent

Before The Honourable B.T. Chivizhe: Judge

For Applicants 	-	Advocate J.B. Wood (Legal Practitioner)

For Respondent	-	Ms N. Maboyi (Legal Practitioner)

CHIVIZHE, J.:

Following on the judgment of this Court handed down on 16 December, 2011 the operative part of which reads;

“1.	The points in limine are hereby dismissed.

2.	The application for quantification of damages is properly before the

Labour Court.

The Applicants on the 19th of June, 2012 submitted their application for quantification of their damages.

The Respondent in its apposing affidavit to the Applicant’s claims again raised points in limine.  It behoves on this court to determine those points in limine first before receiving any evidence to be led in the quantification proceedings.

The Respondent has taken the following points in limine;

The Respondent having disposed of its business in 2002 has no assets.  It is pointless to pursue the application as any award that will be granted will be essentially a brutum fulmen and courts are usually reluctant to grant judgments to which no effect can be given.

As only five affidavits have been filed in this matter the rest of the Applicants being in default their claims ought to be dismissed.

One affidavit is deposed to by the widow of Christopher Masasa who has no locus standi as she is not the executor of his estate.  She thus has no enforceable right to any money due and payable to the late Christopher Masasa.  Any claims she might have to have any assets of the estate would be enforceable after estate has gone through process of liquidation and distribution account

The Labour Court in its judgment on the 16th of December, 2011 ruled out that all payments due up to the 5th May, 2006 have been made and that it is concerned only with claims in respect of the period commencing 5th of May 2006.  It is Respondent’s contention consequently that any claims made for any period prior to that date should be dismissed.

The principle of currency nominalism precludes an award in US dollars for any period prior to March 2009.  The salaries of Applicants being fixed in Zimbabwe dollars and the amount so fixed was their nominal value.  Therefore the nominal value of any damages due to the Applicants based on the salaries for the period prior to March 2009 ought to be also calculated in Zimbabwe dollars.  The respondent referred to decisions emanating from the High Court based on the principle of currency nominalism.  It was Respondent’s submissions that all claims covering period prior to March 2009 ought to be therefore dismissed.

As the concept of damages in lieu of reinstatement includes salary back pay the Applicants were precluded from claiming their salaries from 2003 as well as damages from that date.  They were not entitled to double dip.  Their application being for damages in lieu of reinstatement the claim for salary arrears ought to be dismissed.

The Applicants claims for severance pay, service pay and a relocation allowance were not justified as they are benefits only available if an employee is being retrenched or has voluntarily resigned from employment.  It was Respondent’s view that the claims ought to be consequently dismissed.

The Applicants’ claims for cash-in-lieu of leave was not justified as the Appellant could not have accumulated leave over periods when they did not work for the Respondent.  The claim ought to be consequently dismissed.

The Applicants through supplementary Heads of Argument filed an oral submissions before the court responded to the point in limine as follows;

Ad paragraph 1

That Mr Ian Ferreira had sold part of the shares of the Ferreira’s Auction company to West End (Pvt) Ltd and had received proceeds thereof.  It was proper for the court to pierce the corporates veil and attack liability personally on Mr Ian Ferreira as the Director.  The Respondent had also admitted in the hearing that Ian Ferreira Auctions is still in existence carrying on its business at No. 69 Harare Street.  In the absence of an application for liquidation and or placing of the company under judicial management the court ought to proceed to award the damages as claimed.

Ad Paragraph 2

Some of the Applicants having failed to depose to the affidavits before the court, the court ought to enter default judgment against those Applicants.

Ad Paragraph 3

It was submitted on Applicant Abigail Maruva’s behalf that she had locus standi  in judicio to represent the estate of Christopher Masasa as she is the sole surviving spouse and also having been appointed the executor dative of the Estate by the Master of the High Court on the 15th of June 2011 (copies of supporting affidavit, letters of appointment from Master, etc filed of record).

Ad Paragraph 4

The correct position according to Applicants was Respondent had never paid any sum of money to Applicants and Respondent had already conceded to this.

Ad Paragraph 5

The courts had in judgments such as Samanyanga & Ors v Fleximail HH/108/2011 dismissed the argument based on currency nominalism and taken a robust approach by awarding in a currency that redressed the injury suffered or adequately compensable to the plaintiff.  In casu the court ought to take a similar approach and award both damages in lieu of reinstatement as well as salary back pays and benefits in the prevailing currency i.e. US dollars.

Ad Paragraph 8

In regards to cash in lieu of leave it being a statutory benefit provided under the Section 13 of the Labour Act (Chapter 28:01) the Respondent was obliged to pay the Applicant cash in lieu of leave.

The Respondent filed an extensive response to the issues raised by the Applicants.

Having considered all the submissions made by both parties the following is the court’s ruling on the point in limine raised by the Respondent.  I find it convenient to address the issues as presented seriatim.

The Respondent filed an affidavit by Mr Ian Ferreira in which he averred under oath, that for the Applicants to pursue this matter is a waste of everybody’s time and many as the Respondent disposed of its business in 2002 Respondent consequently has no assets which could be sold to meet any damages payable towards the Applicants.

This issue stands to be dismissed.  What is presently before the court is an application for quantification of damages.  The issue as to whether or not the Respondent would be in a position to liquidate any damages that may become payable is an issue for the next forum i.e. at execution stage.

On the second issue, it is clear that the court is only seized with the applications by 5 of the Applicants who have deposed affidavits before the court.  The claims of the rest of the applicants stand to be dismissed as unsubstantiated.

The Applicant Abigail Mavura being the sole surviving spouse of the late Christopher Masasa and having now placed before this court her letters of appointment as executor dative of that estate clearly has locus standi to bring a claim on behalf of the estate.  This point also stands to be dismissed.

It serves no point for the parties to debate as to whether or not Respondent ever paid any moneys to the Applicants.  What is before me is an application for quantification of damages.  It is trite position at law that the onus to prove damages lies with an employee.  The Applicants would have to prove each and every claim made.  See First Mutual Life vs Jackson Muzivi SC 9/07.

In regards the debate as to whether or not the court is in a position to grant an award in United States Dollars and whether the principle of currency nomalism has application in the Labour Court.  The Supreme Court has now passed judgment in the Samanyanga & Others vs Fleximail matter.  The reasons have not yet been made available so the court cannot make a determination on this point at this stage.

The issue as to whether the Applicants are entitled to back pay as well as damages in lieu of reinstatement is dependent on the evidence to be placed before the court.  Back pay and benefits are normally granted where the order of reinstatement clearly shows that retrospectivity is intended.  See Oliver Chiriseri (2) Frederick Chinyere vs Plan International SC 36/2002.  Damages in lieu of reinstatement have also been found to incorporate back pay and benefits.  See Zimbabwe United Passenger Company vs Richard Christopher Daison SC 87/2002.

The Applicants’ have claimed for severance pay, service pay and a relocation allowance.  Whilst it is correct that these issues are normally raised in retrenchment proceedings it would be premature for the court to dismiss the claim before actually hearing the parties.

The Applicants’ claim for cash-in-lieu of leave.  Whilst it is also correct as alluded to by the Applicants that it is statutorily provided for, it would be premature for the court to dismiss the claims before hearing the parties.

In the circumstances it is the court’s finding as follows;

The points in limine raised by the Respondent be and are hereby dismissed.

The Registrar is directed to reset the matter for hearing on the merits of the application for quantification of damages.