EX
TEMPORE
MATHONSI
JA: This
is the unanimous decision of this Court.
This
is an appeal against part of the judgment of the Labour Court handed
down on 21 October 2022. The part appealed against is the dismissal
of the appellant's claim for cellphone and holiday allowances as
part of her damages in
lieu
of
reinstatement as well as the award of those damages at the parity
rate of one as to one instead of the prevailing interbank rate.
At
the hearing of the appeal, and after an exchange with the court, Mr
Ndlovu
for the respondent abandoned the cross appeal filed without the leave
of the court.
He
also conceded that the appellant was entitled to cellphone and
holiday allowances in terms of her contract of employment.
Only
the narrow issue of the conversion rate of damages remains.
Relying
on the authority of Zambezi
Gas v H. Barber
SC 3/20 Mr Mukumba
for
the appellant submitted that the rate should be the prevailing
interbank rate at the time of payment. In that case this Court
determined that the origin of the liability is not the criterion for
its exclusion but that what brings the asset or liability within the
provision of section 4(1)(d) of S.I. 33/19 is the fact that its value
was expressed in United States Dollars immediately before the
effective date, namely 22 February 2019.
That
resolves the appeal.
The
value of the damages claimed by the appellant was only expressed on
21 October 2022 after the effective date. There is no merit in Mr
Ndlovu's
argument
that the origin of the liability, being the employment contract, and
the date of unlawful dismissal determine the conversion rate.
The
court a
quo
misdirected itself by holding that the applicable rate was the parity
rate of one as to one. The correct rate is the interbank rate
prevailing at the time of payment.
There
is the minor issue of the wrong calculation of the holiday allowance.
The
parties agreed that it should be $900-00 multiplied by 3 years. An
appropriate correction has to be made.
The
appeal has merit and ought to succeed. The costs follow the result.
In
the result it be and is hereby ordered as follows:
1.
The appeal succeeds with costs.
2.
The judgment of the court a
quo
is
amended to read as follows:
“1.
Application for quantification of damages be and is hereby granted
with costs on the ordinary scale.
(a)
36 months damages
$3,500
x 36 = $126,000
(b)
3 months notice pay
$3,500
x 3 = $10,500
(c)
3 months cash in lieu
$3,500
x 3 = $10,500
(d)
Cellphone allowances
$100
x 36 = $3,600
(e)
Holiday allowance
$900
x 3 = $2,700
Total
$153,300
2.
The amount is to be paid in Zimbabwean dollars at the prevailing
interbank rate on the date of payment.”
BHUNU
JA: I
agree
CHATUKUTA
JA: I
agree
Makuwaza
& Gwamanda Attorneys,
appellant's legal practitioner
Matsikidze
Attorneys- At-Law,
respondent's legal practitioner
