SAMANYAU & ORS v PLEXIMAIL (PVT) LTD 2011 (1) ZLR 527 (H)

Flynote

Court — judge — role in law making — need for courts to tread a path which will avoid inequity and injustice in situation where legislative intervention is not forthcoming

Employment — unlawful dismissal — damages in lieu of reinstatement — in calculation of — currency in which may be awarded — local currency worthless due to inflation — award may be made in foreign currency — date at which award should be calculated

Practice and procedure — judgment — currency in which judgment may be expressed — judgment may be expressed in currency which will redress in loss suffered — local currency rendered worthless due to inflation — appropriate to give judgment in foreign currency

Headnote

The applicants were dismissed from their employment with the respondents. The applicants challenged their dismissal in the Labour Court, which found for them and ordered their reinstatement, alternatively, payment of in damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008, equivalent to five years' salary using a cut off date of 5 July 2007. In February 2009, after the multi-currency system had been introduced, the respondent tendered payment in Zimbabwe dollars. The tender was rejected and the applicants sought an order for payment in US dollars. They argued that the principle of currency nominalism has no place in labour law as it would be at variance with the Labour Act's aim of achieving social justice. Further, they sought a declaration to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is, in an amount, currency and quantity that achieves fairness as required by the Act. A successful appellant, they argued, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him for the loss as well as to fulfil the objectives of the Labour Act. Interpreting the order of the Labour Court to mean payment in Zimbabwe dollars would amount to making the order a brutum fulmen because the Zimbabwe dollar, by the time of the tender, had become de facto valueless and useless. This would amount to non-payment, thereby reducing court orders to empty judgments which would be both unfair and against public policy.

The respondent argued that the matter was res judicata; that the High Court had no jurisdiction, this being a labour matter; and that the court had no right to order payment in US dollars when the applicants' contracts entitled them to payment in local currency.

Held, that the matter was not res judicata: the original dispute before the Labour Court was concerned with the lawfulness or otherwise of the applicants' dismissal and the quantum of damages payable in lieu of reinstatement. That court did not deal with the issue of the form of currency of payment, which was the gravamen of the present application. The present application was not to reverse, amend or modify the Labour Court's order, but simply for a declaratory order that, in view of the introduction of the multi-currency, and the judicial and State recognition of the de facto redundancy of the Zimbabwe dollar, a successful litigant may choose to be paid in any applicable foreign currency in the country and that payment in a moribund currency is not an effective fulfilment of the court's order.

Held, further, that the court's jurisdiction was not ousted by s 89(6) of the Labour Act; the court is still entitled to issue declaratory orders, which the Labour Court is not entitled to issue.

Held, further, that it is not impermissible for the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap, especially where not to do so will leave many an unlawfully dismissed employee languishing in the asylum of financial misery. The applicants were not asking the court to declare that the principle of currency nominalism no longer has any place in our common law generally. They were simply asking the court to pronounce that, following the introduction of the multi-currency regime in February 2009 and the concomitant disuse of the Zimbabwe dollar which had become moribund as a result of economic and many other circumstances which had conspired to facilitate this major unprecedented conflagration, and because Parliament has remained in a near catatonic state in addressing this occurrence, the court should declare that in the realm of employment relations, the

A principle of nominalism has, for now, no place until economic normalcy has been restored. To allow an employer to tender damages in lieu of reinstatement in the form of Zimbabwe dollars in February 2009 would be tantamount to giving someone an ordinary stone and expecting him to transact using that stone as a medium of exchange. It does not make any sense in any sane society. On principles of equity, the court should tread a path that will avoid inequity and injustice where legislative intervention is not forthcoming.

Held, further, that the principle of currency nominalism works fairly in an economy which can be described as normal or stable or, at the very worst, in which inflation is not hyper, but not in an environment with a runaway inflation as was the case in this country in the period immediately preceding the introduction of the multi-currency regime. After the introduction of a multiple currency system in February 2009, it is beyond doubt that the Zimbabwe dollar died a natural death by disuse. Where the local currency has been rendered valueless by inflation, to award damages in the local currency might be to deny a plaintiff the redress that he seeks. To give someone such currency, which no one in the country was prepared to accept in any transaction, let alone beyond our borders, as damages in lieu of reinstatement, and after having laboured for the employer for periods ranging between 25 and 46 years, like the respondent did in casu, is not only not only clinging to a positivist jurisprudential approach; it is immoral but an infringement of a human right. It offends against all known tenets of justice in a civilised and democratic society. If judges continue to cling to their precedents in such a scenario of social and economic change, like the grasp of an epileptic during a fit, they will certainly be sacrificing the fundamental principles of justice and fairness for which they stand. Such an award should not be a brutum fulmen but must be meaningful and beneficial to the beneficiary.

Held, further, that in calculating the rate of salary, the rate used at the time of the reinstatement order should be used, not that applicable at a later date. The official rate of exchange used at the time should apply.