Wellington Makuvare v Zimbabwe Platinum Mines (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 FEBRUARY 2024 &21
JUDGMENT NO LC/H/126/2024
CASE NO LC/H/685/21
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 FEBRUARY 2024 &21

MARCH 2024

In the matter between:-

WELLINGTON MAKUVARA

JUDGMENT NO LC/H/126/2024 CASE NO LC/H/685/21

APPELLANT

ZIMBABWE PLATINUM MINES (PVT)	RESPONDENT LTD

Before the Honourable Kudya J

For the Appellant	K. Gama (Legal Practitioner)

For the Respondent	A.K. Maguchu (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the Designated Agent who ruled that appellant’s backpay benefits were convertible to local currency at the rate of 1 to 1. The appellant filed the following grounds.

The Designated Agent erred in finding that the appellant’s backpay and benefits were convertible to local currency at the rate of 1 to 1 despite the fact that liability only came into existence after the effective date of SI 33/19

The Designated Agent erred in not finding that the respondent had made unlawful deductions from the appellant’s backpay and benefits and in not calculating the PAYE deductible there from in accordance with the ZIMRA Tax Tables.

The Designated Agent erred in dismissing the appellant’s claim for benefits on the ground that there was no proof of entitlement thereto.

In the result the appellant prayed that the appeal be allowed with costs and that the Designated Agent’s decision be set aside and in its place the following order be made.

The Claimant (employee’s) backpay and benefits amounting to US$19096,73 be paid in USD or converted to ZWL at the official rate on the date of payment.

PAYE payable in respect of the said backpay and benefits is 27,58% thereof.

The claimant is entitled to the benefits named and quantified in paragraphs B, D, E, F and G of the schedule attached to his statement of claim dated 15 June 2021.

Respondent shall pay interest on all the back pay and benefits due to the claimant at the prescribed rate from 24 January 2020 to the date of payment.

In response to the appeal the respondent took the points in limine that the appeal was out of time, that the appellant has no right of appeal against the decision of the Designated Agent that ground C of the appeal is generalised hence incompetent that the prayer is fatally defective. For completeness of record it need be mentioned that the court entertained the points in limine and ruled that appellant had the right of appeal. The respondent was not happy with that decision and appealed that decision to the Supreme Court. As at the time of hearing the merits of this appeal the decision on the right of appeal is not yet out from the Supreme Court. The matter was subsequently postponed numerous times it being hoped that the Supreme Court decision would be out so that it could guide the parties on the way forward. Sadly that did not happen resulting in the parties agreeing that absence of the Supreme Court decision notwithstanding the court could determine the merits of this appeal. It is against this background that the court entertained the merits of the appeal. This judgement therefore solely addresses the merits of the appeal.

The respondent responded to the merits in the following manner:-

Ground of appeal 1 is ill taken. The Designated Agent can not be faulted for making the finding as he did. It is trite that liability is calculated as at the time of occurrence. It is further trite that monthly remuneration becomes due at the end of each month if an employer withholds money from an employee, such liability arises as at the date of such withholding. The question of whether or not one should pay does not postpone the date of liability. The date of liability is fixed either by contract or by operation of law. In this case the date of payment was always at the end of the calendar month. The value of the salary was as valued at the end of such calendar month when the issue of whether or not dismissal was fair or not went before the court, the issue spoke to whether or not the appellant ought to have been remunerated at the end of each calendar month. A verdict in favour of the employee meant that the dismissal is nullified and the salaries withheld pursuant to the dismissal must be paid to the employee. The decision of reinstatement does not create novel obligations between an employer and employee. The decision pronounces that an obligation that was due as at the time of ordinary performance ought to have been paid as at that date. To this extent, liability is in the

currency and value as at the date it would have been ordinarily due. In this case the appellant’s salaries could only be computed each month when they became due but could not be paid due to dismissal. This is the position of the law which has been upheld by the High Court and followed by the Designated Agent. Appellant salary was USD rated 1 to 1 by SI 33/19. Liability did not arise on date of reinstatement by labour court. Appeal ground is without merit and must be dismissed.

Ground 2 the Designated Agent did not err in any way. The question of appropriate tax to be levied was resolved by consent of the parties. Respondent resolved to approach ZIMRA on the tax issue since it did not have any interest in the tax component which would only be due to ZIMRA. When it sought clarification with ZIMRA it was advised that the taxation was in order. The appeal ground is legally untenable and should be dismissed.

Ground 3 is without merit. No evidence was tendered to support the figures claimed by the appellant. The Designated Agent was not favoured with such evidence so it cannot be faulted for taking guidance from the Supreme Court and dismissing the claim for want of evidence. This ground should also be dismissed. In the ultimate the respondent prayed for the dismissal of the appeal with costs on the basis that it is totally without merit.

Each of the appeal grounds is discussed below:-

Ground 1

Under this ground the appellant is unhappy with the fact that the Designated Agent ruled that what was due to him had to be calculated at the rate of 1 to 1. His major argument is that liability to pay arose when the Labour Court reinstated him in 2020 after the effective date of SI 33/19. The employer is adamant that the calculation was correct taking into account that the liability to pay was as at date when each monthly salary fell due. In support of its position the appellant cited the cases of Ingalulu v NRZ SC 42-22 and Magauzi v Jekera SC 54-22.

On the other hand respondent reasons that the Designated Agent was correct to hold that liability had to be on the basis of 1 to 1. It placed reliance on the judgement of Manika Zimbabwe that liability was at the date when the dispute/issue arose. It need be observed that the Supreme Court judgements referred to by the appellant make it clear that there is no Judgement debt to talk about before the court has pronounced itself on the parties’ rights. It is the court’s view that such a position clearly shows that the law applicable is the law at the date

of judgment. The appellant noted correctly that there was no basis for the Designated Agent to rely on the Manica case which was overuled by the Supreme Court. It is clear from the facts of the case at hand that liability arose at date when the reinstatement order was made. To that extent it was irregular for the Designated Agent to use the 1 to 1 ratio or to award damages. The 1st ground of appeal being well founded should succeed.

Ground 2

It is evident from the record that the parties put the decision on the ZIMRA issue beyond the reach of the Designated Agent when they agreed that such should be resolved by ZIMRA. Consequently, the Designated Agent did not make any pronouncement which can be subject to an appeal. It is settled that an appeal can not determine what has not been dealt with by the tribunal See Swift v Chironda 1996 (1) ZLR 142 (S). It is clear that ground 2 has no basis. It should therefore fail.

Ground 3

Under this ground appellant is unhappy that Designated Agent did not award him the other claims he made before him. It is settled that awards are based on evidence See Muzin v First Mutual Life 2007(1) ZLR 325 (S).

In the case at hand where such evidence was found wanting the Designated Agent can not be faulted for having denied the award sought. The appeal on this ground is also without merit. It should therefore fail.

In the ultimate the appeal succeeds partially as discussed above.

IT IS ORDERED THAT

Appeal Grounds 2 and 3 being without merit they be and are hereby dismissed. Appeal Ground

Maguchu and Muchada, Respondent’s Legal Practitioners