Rindayi Nyatsanza v Hamilton Insurance (Pvt) Ltd

### Preamble
REPORTABLE
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/161/2020
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REPORTABLE

IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/161/2020

HARARE, 13 MARCH 2020			      CASE NO. LC/H/APP/45/19

AND 17 JULY 2020

Rindayi Nyatsanza							Applicant

Hamilton Insurance (Pvt) Ltd						Respondent

Before Honourable G. Musariri, Judge

For Applicant			- Ms TJ. Magaya, Attorney

For Respondent			- Mr T Zhuwarara, Attorney

MUSARIRI, J:

On the 1st February 2019 Applicant filed an application in this Court for variation of judgment.  Respondent filed opposing papers on the 6th February 2019.  In due course the matter was set down for hearing.  The matter emanates from this Court’s judgment referenced LC/H/504/18 dated the 2nd November 2018.  That judgment ordered Respondent to pay Applicant an amount of $67,432-57 in respect of arrear salaries and benefits & damages in lieu reinstatement.

The pertinent portion of the judgment ruled as follows,

“In conclusion I consider that the employee is entitled to the following,

Arrear salaries benefits			36, 382-57

Study Allowance 				  3, 850-00

Damages					31,800-00

Subtotal					72,032-57

Less Vehicle’s agreed value		 	 4,600-00

Amount due					67,432-57 “

The judgment further stated that,

“I will adjust the award accordingly on the assumption that the employer has delivered the said vehicle to the employee.  If the vehicle remains undelivered, the employee  may apply to this Court for varication of the order to include the value of the vehicle.”

It is common cause that the vehicle was never delivered to Applicant.  The value of the vehicle has become the live issue between the parties.  Hence the present application for variation of judgment.

Applicant stated that in March 2018 the parties agreed that the value of the vehicle translated to USD$4,600-00 Respondent decided not to deliver the vehicle.  Instead it offered to pay $4,600-00.  At that time USD$1-00 ranked at par with ZWL$1-00.  That was the result of various changes to exchange rates which were introduced by the financial authorities.  Applicant would not accept $4,600 as market value for the vehicle.  He obtained 3 quotations for a similar car.  The quotations averaged out at $143,233-00.  It is common cause that Applicant was entitled to delivery of the vehicle less 20% of its market value.  The 20% amounts to    $24,400 -00.  The vehicle’s net value remains at $114,586-00.  Hence the claim for variation of judgment to reflect that latter figure.  Applicant then applied to amend the claim to $790 000 in light of recent changes in value.

Respondent’s position is captured in the affidavit of its General Manager Ms Joyce Nousenga. She protested that,

“15. There is no legal basis for the revaluation of the motor vehicle or the claim by the Applicant for 80% of the current market value of the motor vehicle.  Furthermore since Respondent paid the US$4,600-00 there is no liability outstanding and consequently no basis for the application.

16.  The factual findings in relation to the value of the car have already been made by this Honourable Court (See page 2 of the extant Judgment Number LC/H/504/2008).  There is therefore no basis for this Honourable Court to revisit its findings.

17………….Furthermore, the revaluations are irrelevant on the basis that, as enunciated above, the parties agreed to the value of the motor vehicle being US$4,600-00 and findings of fact were made in this regard by this Honourable Court.”

In addition, Respondent’s counsel drew the Court’s attention to the case of Mbundire v Tyrone Sim SC 13/11 where at page 15 Garwe JA ruled that,

“It is now established, certainly in South Africa, that a monetary debt has to be paid according to its nominal value and, to take into account inflation, interest is then added on that debt until payment is made in full.”

It was argued that the case buttressed the principle of nominalism.  A debt remains payable in its nominated currency.  There is no room for revalorisation to take into account inflation or changes in currencies.  That was the gist or pith of Respondent’s position.

I have considered the respective positions of the parties.  I am persuaded by Respondent’s stance.  The value of the vehicle was agreed by the parties as

US$4,600-00.  That figure was endorsed by this Court in the judgment referenced LC/H/504/18.  The judgment was written whilst the Court belaboured under the assumption that the vehicle had been delivered by Respondent to Applicant.  The correct position is that the vehicle had not been delivered.  To take care of such an eventuality the judgment stated that Applicant may apply for variation of judgment if the vehicle was not delivered.  Section 92C (1) b of the Labour Act Chapter28:01 allows this Court to vary any order which was obtained by mistake.  Hence this application for variation.  However there is no room for changes to the value of the vehicle.  The only variation permissible herein is as a result of a concession made by Respondent’s counsel.  At the close of his oral submissions in this Court counsel amended Respondent’s prayer so that judgment be entered for Applicant only in the sum of $23,000-00.

Wherefore it is ordered that:

The application for variation be and is hereby granted in terms of this order;

This court’s order in judgment LC/H/504/18 is amended by the addition of the following paragraph,

“3. 1st Respondent shall pay 2nd Respondent an amount of    $23,000-00 in respect of the vehicle.”  and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E